Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company and the Surviving Corporation, shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty days after statements therefor are received, and (C) the Company and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, that the Surviving Corporation shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.6, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Corporation, thereof, provided that the failure to so notify shall not affect the obligations of the Company and the Surviving Corporation except to the extent such failure to notify materially prejudices such party. (b) Parent and MergerCo agree that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claim. Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such terms. (c) This Section 7.6 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6. (d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.6.
Appears in 3 contracts
Samples: Proxy Statement (Instron Corp), Proxy Statement (Instron Corp), Proxy Statement (Instron Corp)
Officers’ and Directors’ Indemnification. (a) In For a period of six (6) years after the Effective Time, in the event of any threatened or actual claim, action, suit, demand proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a trustee, director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (each, an “Indemnified Party” and collectively, the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a trustee, director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a trustee, director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby or thereby, whether in any case asserted or arising at or before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and for a period of six (6) years after the Effective Time Time, the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full fullest extent permitted by applicable law, each Indemnified Party against any and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising at or before or after the Effective Time), (A) the CompanyCompany and, and the Surviving Corporation after the Effective Time, the Surviving Corporation and Parent shall promptly pay expenses in advance of the final disposition of any such threatened or actual claim, action suit, demand, proceeding or investigation to each Indemnified Party to the full fullest extent permitted by applicable law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, Parent and the Surviving Corporation, Corporation shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are received, and (C) the Company and, after the Effective Time, Parent and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, the Indemnified Party shall undertake in writing to repay any advances if it shall ultimately be determined that neither the Company nor Person is not entitled to indemnity; and provided further that none of the Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); and provided furtherfurther that the Company, however, that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. In the event of a final and non-appealable determination by a court that any payment of expenses is prohibited by applicable law, the Indemnified Party shall promptly refund to Parent or Surviving Corporation, as the case may be, the amount of all such expenses theretofore advanced pursuant hereto. Any Indemnified Party wishing to claim indemnification under this Section 7.66.5, upon learning of any such threatened or actual claim, action, suit, demand, proceeding or investigation, shall promptly notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent extent, if any, such failure to promptly notify materially prejudices such party.
(b) Parent and MergerCo each agree that all rights to indemnification existing in favor of, and all limitations on the personal liability of, each Indemnified Party provided for in the directors, officers, employees and agents respective charters or bylaws (or other applicable organizational documents) of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including shall survive the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time and, at the Effective Time, shall become the joint and several obligations of Parent, the Surviving Corporation and any applicable Company Subsidiary; provided, however, that all rights to indemnification in respect of any claims (each each, a "“Claim"”) asserted or made within such period shall continue until the final disposition of such Claim. From and after the Effective Time, Parent and MergerCo each also agree to jointly and severally indemnify and hold harmless the present and former officers, trustees and directors of the Company and the Company Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more Company Subsidiaries and such officers, trustees and directors as listed in Section 6.5(b) of the Company Disclosure Schedule.
(c) Prior to the Effective Time, the Company shall purchase an a non-cancelable extended reporting period endorsement ("Reporting Tail Coverage") under the Company's ’s existing directors' ’ and officers' ’ liability insurance coverage for the Company's directors ’s trustees and officers in a the same form acceptable to as presently maintained by the Company Company, which shall provide such directors trustees and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage that Parent shall not exceed $175,000 (be required to maintain insurance coverage pursuant to this Section 6.5(c) at an annual cost to Parent or the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, Surviving Corporation in excess of 200% of the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available annual premiums for the Maximum Amount on Company’s current insurance policies. Parent shall, and shall cause the Surviving Corporation to, maintain such termspolicies in full force and effect, and continue to honor all obligations thereunder.
(cd) Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 6.5 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.5 applies without the consent of each such affected indemnitee. This Section 7.6 6.5 is intended for the irrevocable benefit of, and to grant third party beneficiary rights to, the Indemnified Parties and their respective heirs and shall be binding on all successors and assigns of Parent, MergerCo, the Company Parent and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6.
(d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.6.Surviving
Appears in 2 contracts
Samples: Merger Agreement (CentraCore Properties Trust), Merger Agreement (Geo Group Inc)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, demand proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company a Party or any of the Company its Subsidiaries (each, an "Indemnified Party" and collectively, the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Company Party or any of the Company its Subsidiaries, or is or was serving at the request of the Company Party or any of the Company its Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby or thereby, whether in any case asserted or arising at or before or after the Effective Time, the parties hereto Parties agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, from and after the Effective Time Time, the Surviving Corporation Company and the Company shall indemnify and hold harmless, as and to the full fullest extent permitted by applicable law, each Indemnified Party against any and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising at or before or after the Effective Time), (A) the Companyfrom and, and the Surviving Corporation after the Effective Time, the Surviving Company and the Company shall promptly pay expenses in advance of the final disposition of any such threatened or actual claim, action suit, demand, proceeding or investigation to each Indemnified Party to the full fullest extent permitted by applicable law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company and the Surviving Corporation, Company shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are received, and (C) from and after the Effective Time, the Company and the Surviving Corporation Company will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither the Surviving Company nor the Surviving Corporation Company shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); and provided further, however, further that the Surviving Corporation Company and the Company shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.66.6, upon learning of any such threatened or actual claim, action, suit, demand, proceeding or investigation, shall promptly notify the Surviving Company and, after and the Effective Time, the Surviving Corporation, Company thereof, ; provided that the failure to so notify shall not affect the obligations of the Surviving Company and the Surviving Corporation Company except to the extent extent, if any, such failure to promptly notify materially prejudices such partythe Surviving Company or the Company.
(b) Parent The Company and MergerCo each agree that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries each Indemnified Party provided for in the Articles respective charters or bylaws (or other applicable organizational documents) of Organization Juniper and its Subsidiaries or Bylaws as otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including shall survive the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time and, at the Effective Time, shall become the joint and several obligations of the Company, the Surviving Company and any Subsidiary of the Company; provided, however, that all rights to indemnification in respect of any claims (each each, a "Claim") asserted or made within such period shall continue until the final disposition of such Claim. Prior to From and after the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under and MergerCo each also agree to jointly and severally indemnify and hold harmless the Company's existing directors' present and officers' liability insurance coverage for former officers and directors of Juniper and the Company's directors and officers Juniper Subsidiaries in a form acceptable respect of acts or omissions occurring prior to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than to the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than extent provided in any event written indemnification agreements between Juniper and/or one or more Juniper Subsidiaries and such officers and directors as listed in Section 6.6(b) of the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such termsJuniper Disclosure Schedule.
(c) Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 6.6 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.6 applies without the consent of each such affected indemnitee. This Section 7.6 6.6 is intended for the irrevocable benefit of, and to grant third party beneficiary rights to, the Indemnified Parties and their respective heirs and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving CorporationCompany. Each of the Indemnified Parties and their respective heirs shall be entitled to enforce the covenants contained in provisions of this Section 7.66.6.
(d) In the event that that, following the Effective Time, the Company or the Surviving Corporation Company or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or merger, (ii) transfers or conveys all or substantially all of its properties and assets to any person Person, or entity(iii) commences a dissolution, liquidation, assignment for the benefit of creditors or similar action, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Company or the Surviving Corporation Company, as the case may be, assume the obligations set forth in this Section 7.66.6.
Appears in 2 contracts
Samples: Merger Agreement (Monmouth Capital Corp), Merger Agreement (Monmouth Real Estate Investment Corp)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, Parent and the Surviving Corporation, shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are received, and (C) the Company Company, Parent and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided furtherfurther that the Company, however, that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.6, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, the directorseach present and former director, officersofficer, employees employee, fiduciary and agents agent of the Company and the Company Subsidiaries provided for in the Articles of Organization respective charters or Bylaws as by-laws or otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claim. From and after the Effective Time, Parent and the Surviving Corporation also agree to indemnify and hold harmless the present and former officers and directors of the Company and the Company Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more Company Subsidiaries and such officers and directors as listed in Section 7.6(b) of the Company Disclosure Schedule.
(c) Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event so long as the total aggregate cost of such Reporting Tail Coverage shall not exceed is less than $175,000 750,000 (the "Maximum AmountPremium Limit"); and provided, further, . In the event that if such coverage cannot be obtained the Premium Limit is insufficient for such costcoverage, the Company will maintain, for may enter into an agreement to spend up to that amount to purchase such six-year period, the maximum amount of comparable lesser coverage as may be obtained with such amount. Parent shall, and shall be available for cause the Maximum Amount on Surviving Corporation to, maintain such termspolicy in full force and effect, and continue to honor the obligations thereunder.
(cd) This The obligations under this Section 7.6 is intended for shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 7.6 applies without the irrevocable benefit of, and consent of such affected indemnitee (it being expressly agreed that the indemnitees to grant whom this Section 7.6 applies shall be third party rights to, the Indemnified Parties beneficiaries of this Section 7.6 and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6herein).
(de) In the event that Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person or entityperson, then, and in each such case, to the extent necessary proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 7.6.
Appears in 1 contract
Samples: Merger Agreement (First Years Inc)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, demand proceeding or investigation, whether civil, criminal or administrative, including, without limitation, including any such claim, action, suit, proceeding or investigation in which any person Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary director or agent officer of the Company or any of the Company Subsidiaries (each, together with such Person’s heirs, executors and administrators, an “Indemnified Party” and collectively, the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary director or agent officer of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby or thereby, whether in any case asserted or arising at or before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmlessharmless and, from and after the Effective Time Time, the Surviving Corporation and Parent, jointly and severally, shall indemnify and hold harmless, as and to the full fullest extent permitted by applicable lawLaw, each Indemnified Party against any and all losses, claims, damages, liabilities, costs, reasonable and documented expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding demand, proceeding, inquiry or investigation, and and, in the event of any such threatened or actual claim, action, suit, proceeding proceeding, inquiry or investigation (whether asserted or arising at or before or after the Effective Time), (A) the CompanyCompany and, and the Surviving Corporation after the Effective Time, the Surviving Corporation and Parent shall promptly pay the reasonable and documented expenses in advance of the final disposition of any such threatened or actual claim, action, suit, proceeding demand, proceeding, inquiry or investigation to each Indemnified Party upon receipt of an undertaking by or on behalf of such Indemnified Party if required by Law to the full extent permitted by lawrepay such amount if it shall ultimately be determined that he is not entitled to be indemnified therefor, (B) the Indemnified Parties may retain one counsel satisfactory to them, and the Company and and, after the Effective Time, the Surviving Corporation, Corporation and Parent shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties within thirty twenty (20) days after statements therefor are received, and (C) the Company and and, after the Effective Time, the Surviving Corporation and Parent will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); and provided furtherfurther that the Company, however, that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable lawLaw. Any Indemnified Party wishing to claim indemnification under this Section 7.66.5, upon learning of any such threatened or actual claim, action, suit, demand, proceeding or investigation, shall promptly notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and the Surviving Corporation and Parent except to the extent extent, if any, such failure to promptly notify materially prejudices such party.
(b) Parent and MergerCo Merger Sub each agree that all rights to indemnification and advancement of expenses existing in favor of, and all limitations on the personal liability of, each Indemnified Party provided for in Section 6.5(a) above or in the directors, officers, employees and agents respective certificates of incorporation or bylaws (or other applicable organizational documents) of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as otherwise in effect as of the date hereof with respect to matters occurring prior to (including through any agreement or arrangement between the Effective TimeCompany or any Company Subsidiary, on the one hand, and including any director, officer, employee or agent of the Company or any Company Subsidiary, on the other hand) shall survive the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time and, at the Effective Time, shall become the joint and several obligations of the Surviving Corporation and any applicable Company Subsidiary; provided, however, that all rights to indemnification indemnification, advancement of expenses and limitations on personal liability in respect of any claims (each each, a "“Claim"”) asserted or made within such period shall continue until the final disposition of such Claim. Prior From and after the Effective Time, the Surviving Corporation and each Company Subsidiary also agree to jointly and severally indemnify and hold harmless the present and former officers and directors of the Company and the Company Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more Company Subsidiaries and such officers and directors as listed in Section 6.5(b) of the Company Disclosure Schedule.
(c) For a period of six (6) years after the Effective Time, the Parent and Surviving Corporation shall, at no cost to the beneficiaries thereunder, cause to be maintained in effect the current policies of directors’ and officers’ and fiduciary liability insurance maintained by the Company (provided that the Surviving Corporation may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are no less advantageous) with respect to claims arising from or related to facts or events which occurred at or before the Effective Time; provided, however, that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 200% of the annual premiums paid as of the date hereof by the Company for such insurance (such 200% amount, the “Base Premium”); provided, further, if such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the Base Premium, the Surviving Corporation shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium not in excess of the Base Premium; provided, further, if either the Company or the Surviving Corporation, in each case, in its sole discretion elects, by giving written notice to the other party at least ten (10) days prior to the Effective Time, then, in lieu of the foregoing insurance, effective as of the Effective Time, the Company or the Surviving Corporation, as applicable, shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing a directors' ’ and officers' ’ and fiduciary liability insurance coverage “tail” or “runoff” insurance program for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for period of six (6) years following after the Effective Time with respect to wrongful acts and/or omissions committed or allegedly committed at or prior to the Effective Time (such coverage shall have an aggregate coverage limit over the term of such policy in an amount not less than to exceed the annual aggregate coverage limit under the Company’s existing coverage underdirectors and officers liability policy, and have in all other terms respects shall be comparable to such existing coverage), provided that the premium for such “tail” or “runoff” coverage shall not materially less favorable to, exceed an amount equal to the insured persons than Base Premium; provided that if the current policies of directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage Company cannot be maintained for the Base Premium and such “tail” or “runoff” coverage can only be obtained for such costat an annual premium in excess of the Base Premium, the Company will maintain, Surviving Corporation shall maintain the most advantageous “tail” or “runoff” coverage obtainable for such six-year period, an annual premium not in excess of the maximum amount of comparable coverage as shall be available for the Maximum Amount on such termsBase Premium.
(cd) Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 6.5 shall not be terminated or modified in such a manner as to adversely affect any indemnified party to whom this Section 6.5 applies without the consent of each such affected indemnified party. This Section 7.6 6.5 is intended for the irrevocable benefit of, and to grant third party beneficiary rights to, the Indemnified Parties and their respective heirs and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties and their respective heirs shall be entitled to enforce the covenants contained in provisions of this Section 7.66.5.
(de) In the event that that, following the Effective Time, the Surviving Corporation or Parent or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or merger, (ii) transfers or conveys all or substantially all of its properties and assets to any person Person or entity(iii) commences a dissolution, liquidation, assignment for the benefit of creditors or similar action, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent, as the case may be, assume the obligations set forth in this Section 7.66.5.
Appears in 1 contract
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company its Subsidiaries (the "“Specified Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company its Subsidiaries, or is or was serving at the request of the Company or any of the Company its Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, enterprise or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts Company agrees to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation shall indemnify and hold harmless, as and to the full extent permitted by applicable lawLaw, each Specified Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Buyer after the Effective Time, shall promptly pay expenses incurred by each Specified Indemnified Party as the same are incurred in advance of the final disposition of any claim, suit, proceeding or investigation to each such Specified Indemnified Party; provided, that the Specified Indemnified Party to whom expenses are advanced shall first provide an undertaking to repay such advances if it is ultimately determined that such Specified Indemnified Party is not entitled to have its expenses paid or to be indemnified in the full extent permitted by law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company and the Surviving Corporation, shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty days after statements therefor are receivedmanner contemplated hereby, and (CB) the Company and the Surviving Corporation will use their respective cooperate in a reasonable best efforts manner to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Buyer shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld)consent; and provided further, however, further that the Company, Surviving Corporation and Buyer shall have no obligation hereunder to any Specified Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that the payment of expenses to or the indemnification of such Specified Indemnified Party in the manner contemplated hereby is prohibited by applicable lawLaw. Any Specified Indemnified Party wishing to claim indemnification under this Section 7.67.7, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving CorporationCorporation and Buyer thereof; provided, thereofhowever, provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Buyer except to the extent such failure to notify materially prejudices such party.
(b) Parent Buyer and MergerCo agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, the directorseach present and former director, officersofficer, employees employee, fiduciary and agents agent of the Company and the Company its Subsidiaries provided for in the Articles of Organization their respective charters or Bylaws as by-laws or otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "“Claim"”) asserted or made within such period shall continue until the disposition of such Claim. Prior to Without limiting the general indemnification rights of the Indemnified Parties under this Section 7.7, from and after the Effective Time, the Surviving Corporation also agrees to indemnify and hold harmless the present and former officers and directors of the Company and its Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more of its Subsidiaries.
(c) At the Effective Time, the Surviving Corporation shall purchase (at Buyer’s expense) an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's ’s existing directors' ’ and officers' ’ liability insurance coverage (the “D&O Tail Policy”) for the Company's ’s and its Subsidiaries’ directors and officers in a form acceptable to the Company which that shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; provided, however, than in any event that the total aggregate cost of such Reporting Tail Coverage policy shall not exceed $175,000 500,000 (the "Maximum Amount"“Premium Limit”); , and provided, further, in the event that if such coverage cannot be obtained the Premium Limit is insufficient for such costcoverage, the Company will maintain, for such six-year period, Buyer shall purchase the maximum amount of comparable coverage as shall be that is available for such amount. Buyer shall, and shall cause the Maximum Amount on Surviving Corporation to, maintain such termspolicy in full force and effect, and continue to honor the obligations thereunder.
(cd) This The obligations under this Section 7.6 is intended for 7.7 shall not be terminated or modified in such a manner as to adversely affect any Specified Indemnified Party to whom this Section 7.7 applies without the irrevocable benefit of, and consent of such Specified Indemnified Party (it being expressly agreed that the Specified Indemnified Parties to grant whom this Section 7.7 applies shall be third party rights to, the Indemnified Parties beneficiaries of this Section 7.7 and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6herein).
(de) In the event that Buyer or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity 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 or entityPerson, then, and in each such case, to the extent necessary proper provision shall be made so that the successors and assigns of Buyer or the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 7.67.7.
Appears in 1 contract
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company its Subsidiaries (the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company its Subsidiaries, or is or was serving at the request of the Company or any of the Company its Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, enterprise or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto Company, Parent and MergerCo agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay expenses incurred by each Indemnified Party as the same are incurred in advance of the final disposition of any claim, suit, proceeding or investigation to each such Indemnified Party to the full extent permitted by lawParty, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, Parent and the Surviving Corporation, Corporation shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are received, received and (C) the Company Company, Parent and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, further that the Company, Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.67.5, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, the directorseach present and former director, officersofficer, employees employee, fiduciary and agents agent of the Company and the Company its Subsidiaries provided for in the Articles of Organization their respective charters or Bylaws as by-laws or otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claimclaim. Prior to From and after the Effective Time, Parent and the Surviving Corporation also agree to indemnify and hold harmless the present and former officers and directors of the Company and its Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more of its Subsidiaries.
(c) At the Effective Time, Parent shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's ’s existing directors' ’ and officers' ’ liability insurance coverage for the Company's ’s and its Subsidiaries’ directors and officers in a form reasonably acceptable to the Company which that shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons Persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; provided. Parent shall maintain such policy in full force and effect, however, than in any event and continue to honor the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such termsobligations thereunder.
(cd) This The obligations under this Section 7.6 is intended for 7.5 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 7.5 applies without the irrevocable benefit of, and to grant third party rights to, consent of such Indemnified Party (it being expressly agreed that the Indemnified Parties and to whom this Section 7.5 applies shall be binding on all successors third party beneficiaries of this Section 7.5 and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6herein).
(de) In the event that Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity 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 or entityperson, then, and in each such case, to the extent necessary proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 7.67.5.
Appears in 1 contract
Samples: Merger Agreement (Knology Inc)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company and the Surviving Corporation, shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty days after statements therefor are received, and (C) the Company and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, that the Surviving Corporation shall have no obligation hereunder to any Indemnified Party when A-22 113 109 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.6, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Corporation, thereof, provided that the failure to so notify shall not affect the obligations of the Company and the Surviving Corporation except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo agree that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claim. Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such terms.
(c) This Section 7.6 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6.
(d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.6.
Appears in 1 contract
Samples: Proxy Statement (Instron Corp)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a ------------------- party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party as and to the full extent permitted by law, (B) the Company, and the Surviving Corporation after the Effective Time, may assume the defense of such claim, suit, proceeding or investigation, provided that the Indemnified Parties may retain counsel satisfactory to them, -------- ---- and the Company and the Surviving Corporation, Corporation shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty days after statements therefor are receivedreceived in the event the Company, and the Surviving Corporation after the Effective Time, either (x) fail to assume such defense, or (y) a conflict of interest exists between the Company and/or the Surviving Corporation on the one hand and the Indemnified Parties on the other hand, and (C) the Company and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, that the Surviving Corporation shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.6, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Corporation, thereof, provided that the failure to so notify shall not affect the obligations of the Company and the Surviving Corporation except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo agree that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles Certificate of Organization Incorporation or Bylaws By-laws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of not less then six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall ----- continue until the disposition of such Claim. Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail -------------- Coverage") under the Company's existing directors' and officers' liability -------- insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost -------- ------- of such Reporting Tail Coverage shall not exceed $175,000 40,000 (the "Maximum AmountCoverage ---------------- Cost"); and provided, further, that if such coverage cannot be obtained for such ---- cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount Coverage Cost on such terms.
(c) This Section 7.6 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6.
(d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.6.
Appears in 1 contract
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (each, an “Indemnified Party” and collectively, the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby, or thereby whether in any case asserted or arising at or before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time Time, the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, Parent and the Surviving Corporation, Corporation shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are received, and (C) the Company Company, Parent and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheldwithheld or delayed); and provided furtherfurther that the Company, however, that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.66.6, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent extent, if any, such failure to promptly notify materially prejudices such party.
(b) Parent and MergerCo each agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, the directorseach present and former director, officersofficer, employees employee, fiduciary and agents agent of the Company and the Company Subsidiaries provided for in the Articles of Organization respective charters or Bylaws as bylaws (or other applicable organizational documents) or otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "“Claim"”) asserted or made within such period shall continue until the disposition of such Claim. From and after the Effective Time, Parent and MergerCo each also agree to indemnify and hold harmless the present and former officers and directors of the Company and the Company Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more Company Subsidiaries and such officers and directors as listed in Section 6.6(b) of the Company Disclosure Schedule.
(c) Prior to the Effective Time, the Company shall purchase an a non-cancelable extended reporting period endorsement ("Reporting Tail Coverage") under the Company's ’s existing directors' ’ and officers' ’ liability insurance coverage for the Company's ’s directors and officers in a the same form acceptable to as presently maintained by the Company Company, which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such terms.
(cd) This The obligations under this Section 7.6 is intended for 6.6 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.6 applies without the irrevocable benefit of, and consent of such affected indemnitee (it being expressly agreed that the indemnities to grant whom this Section 6.6 applies shall be third party rights to, the Indemnified Parties beneficiaries of this Section 6.6 and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6herein).
(de) In the event that Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person or entityperson, then, and in each such case, to the extent necessary proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 7.66.6.
Appears in 1 contract
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (each, an "Indemnified Party" and collectively, the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, director or officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary director or agent officer of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby or thereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against such claim, action, suit, demand, proceeding or investigation and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time Time, the Surviving Corporation Corporation, Parent and Parent LP shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, demand, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay out-of-pocket expenses in advance of the final disposition of any claim, action, suit, demand, proceeding or investigation to each Indemnified Party to the full fullest extent permitted by law, subject only to the provision of undertakings required for such advancement under applicable law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, Parent and the Surviving Corporation, Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are received, and (C) the Company Company, Parent and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheldwithheld or delayed); and provided furtherfurther that the Company, however, that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.66.7, upon learning of any such claim, action, suit, demand, proceeding or investigation, shall promptly notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent extent, if any, such failure to promptly notify materially prejudices such party.
(b) Parent and MergerCo Parent LP each agree that to honor and to continue in full force and effect all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, the directorseach present and former director, officersofficer, employees employee, fiduciary and agents agent of the Company, Company LP and the Company Subsidiaries provided for in the Articles of Organization respective charters or Bylaws as bylaws (or other applicable organizational documents) or otherwise in effect as of the date hereof with respect to matters occurring prior to and through the Effective Time, and specifically including the Merger and the Transactionstransactions contemplated hereby, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claim. .
(c) Prior to the Effective Time, the Company shall purchase an a non-cancelable extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a the same form acceptable to as presently maintained by the Company Company, which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event so long as the total aggregate cost of such Reporting Tail Coverage shall not exceed is less than $175,000 1,500,000 (the "Maximum AmountPremium Limit"); and provided, further, . In the event that if such coverage cannot be obtained the Premium Limit is insufficient for such costcoverage, the Company will maintain, for may enter into an agreement to spend up to that amount to purchase such six-year period, the maximum amount of comparable lesser coverage as may be obtained with such amount. Parent shall, and shall be available for cause the Maximum Amount on Surviving Corporation to, maintain such termspolicy in full force and effect, and to continue to honor the obligations hereunder.
(cd) This The obligations under this Section 7.6 is intended for 6.7 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.7 applies without the irrevocable benefit of, and consent of such affected indemnitee (it being expressly agreed that the indemnitees to grant whom this Section 6.7 applies shall be third party rights to, the Indemnified Parties beneficiaries of this Section 6.7 and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained herein). The covenant contained in this Section 7.66.7 is expressly intended to be for the benefit of, and shall be enforceable by, each of the indemnitees to whom this Section 6.7 applies, as well as their respective heirs, successors, executors, administrators and assigns. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an indemnitee may be entitled, whether pursuant to law, contract or otherwise.
(de) In the event that Parent, Parent LP or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person one or entitymore Persons in one or a series of related transactions, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent, Parent LP or the Surviving Corporation (or, if applicable, any of their respective successors or assigns) as the case may be, assume the obligations set forth in this Section 7.66.7.
Appears in 1 contract
Samples: Merger Agreement (Macerich Co)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, demand, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in whole -------------------- or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust the Company or other enterprise, any Company Subsidiary or (ii) the negotiation, execution or performance of this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in . In the event of any such threatened Indemnified Party is or actual claim, becomes involved in any capacity in any action, suit, proceeding or investigation for which indemnification is to be provided under this Agreement (whether asserted or arising before or after the Effective Time), (A) the Company, and Parent and the Surviving Corporation after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, action, suit, demand, proceeding or investigation to each Indemnified Party to the full extent permitted by law, provided that the Indemnified Party may not retain more than one counsel (Bin addition to any necessary local counsel) to represent all the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, Parent and the Surviving Corporation, Corporation shall pay all reasonable fees and expenses of for such counsel for the Indemnified Parties within thirty days promptly after statements therefor are received, received and (CB) the Company Company, Parent and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; providedprovided that in no event shall the Company, however, that neither the Company nor Parent or the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, further that neither Parent nor the Surviving Corporation shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.68.7, upon learning of any such claim, action, suit, demand, proceeding or investigation, shall notify the Company and, after the Effective Time, Parent and the Surviving Corporation, thereof, ; provided that the failure to so notify shall not affect the obligations of the Company Company, Parent and the Surviving Corporation except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo agree agrees that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles of Organization Company Certificate or Bylaws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the TransactionsMerger, shall continue in full force and effect for a period of not less then six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made ----- within such period shall continue until the final disposition of such Claim. Prior to the Effective Time, the Company shall may purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form and with terms acceptable to the Company Company, which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, howeverso long as the cost is less than $ 750,000, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such costprovided that, the Company will maintain, agrees to cooperate in good -------- ---- faith with the Parent in order to obtain the lowest premium for such six-year periodthe above referenced coverage. In the event that $ 750,000 is insufficient for the above referenced coverage, the maximum Company may spend up to that amount of comparable to purchase such lesser coverage as shall be available for the Maximum Amount on such termsis possible.
(c) This Section 7.6 8.7 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.68.7.
(d) In the event that Parent, the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation assume the obligations set forth in this Section 7.68.7.
Appears in 1 contract
Samples: Merger Agreement (Voyager Net Inc)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, demand, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, demand, proceeding or investigation in which any person Person who is now, or has been at any time prior to the date hereof, or who becomes becomes, prior to the Effective Time, a director, officer, employee, fiduciary director or agent officer of the Company or any of the Company Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary director or agent officer of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary director or agent officer of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation Company shall indemnify and hold harmless, as and to the full extent permitted by applicable lawthe Company's Charter (the "Company Charter") and the Company Bylaws (the "Company Bylaws") in effect on the date hereof, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, demand, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation after the Effective Time, Company shall promptly pay expenses as incurred in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, subject to the provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not entitled to such amounts, (B) the Indemnified Parties may retain one counsel satisfactory to themthem (subject to the consent of the Surviving Company, and the Company which shall not be unreasonably withheld) and the Surviving Corporation, Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties within thirty 30 days after statements therefor are received, and (C) the Surviving Company and the Surviving Corporation will shall use their respective its reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation Company shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld)consent; and provided furtherprovided, however, further that the Surviving Corporation Company shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.67.3, upon learning of any such claim, action, suit, demand, proceeding or investigation, shall promptly notify the Surviving Company and, after of such claim and the Effective Time, the Surviving Corporation, thereof, relevant facts and circumstances with respect thereto; provided that the failure to so notify shall not affect the obligations of the Surviving Company and the Surviving Corporation except to the extent such failure to notify materially prejudices such partythe Surviving Company.
(b) Parent and MergerCo agree agrees that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees directors and agents officers of the Company and the Company Subsidiaries provided for in the Articles of Organization or Company Charter and Company Bylaws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, Time shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the final disposition of such Claim. Prior to the Effective TimeClosing Date, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage ("D&O Insurance") for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other having terms not materially less favorable to, on the whole to the insured persons Persons than the directors' and officers' liability insurance D&O Insurance coverage presently maintained by the Company; provided, however, Company so long as the cost is no more than in any event 150% of the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (D&O Insurance for the "Maximum Amount"); and providedyear ended December 31, further2000, provided that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, agrees to cooperate in good faith with MergerCo in order to obtain the maximum amount of comparable coverage as shall be available lowest premium for the Maximum Amount on such terms.
(c) This Section 7.6 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporationabove referenced coverage. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6.
(d) In the event that such amount is insufficient for the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity and shall not above referenced coverage, the Company may spend up to that amount to purchase such lesser coverage as may 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 or entity, then, and in each such case, proper provision shall be made so obtained by that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.6amount.
Appears in 1 contract
Samples: Merger Agreement (First Washington Realty Trust Inc)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective TimeClosing Date, a director, officer, employee, fiduciary or agent of the Company or any of the Company its Subsidiaries (the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company its Subsidiaries, or is or was serving at the request of the Company or any of the Company its Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, enterprise or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective TimeClosing Date, the parties hereto Company, Parent and Buyer agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation Closing Date Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective TimeClosing Date), (A) the Company, and the Surviving Corporation Parent after the Effective TimeClosing Date, shall promptly pay expenses incurred by each Indemnified Party as the same are incurred in advance of the final disposition of any claim, suit, proceeding or investigation to each such Indemnified Party to the full extent permitted by lawParty, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, and Parent after the Surviving CorporationClosing Date, shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are received, received and (C) the Company Company, and Parent after the Surviving Corporation Closing Date, will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, further that the Surviving Corporation Company and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.66.4, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company andCompany, and Parent after the Effective Time, the Surviving CorporationClosing Date, thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and the Surviving Corporation Parent except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo Buyer agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, the directorseach present and former director, officersofficer, employees employee, fiduciary and agents agent of the Company and the Company its Subsidiaries provided for in the Articles their respective articles of Organization incorporation or Bylaws as by-laws or otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective TimeClosing Date; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claimclaim. Prior From and after the Closing Date, Parent also agrees to indemnify and hold harmless the present and former officers and directors of the Company and its Subsidiaries in respect of acts or omissions occurring prior to the Effective Time, Closing Date to the extent provided in any written indemnification agreements between the Company and/or one or more of its Subsidiaries.
(c) On the Closing Date, Parent shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's ’s existing directors' ’ and officers' ’ liability insurance coverage for the Company's ’s and its Subsidiaries’ directors and officers in a form reasonably acceptable to the Company which that shall provide such directors and officers with coverage for six (6) years following the Effective Time Closing Date of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons Persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; provided. Parent shall maintain such policy in full force and effect, however, than in any event and continue to honor the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such termsobligations thereunder.
(cd) This The obligations under this Section 7.6 is intended for 6.4 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 6.4 applies without the irrevocable benefit of, and to grant third party rights to, consent of such Indemnified Party (it being expressly agreed that the Indemnified Parties and to whom this Section 6.4 applies shall be binding on all successors third party beneficiaries of this Section 6.4 and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6herein).
(de) In the event that the Surviving Corporation Parent or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entityperson, then, and in each such case, to the extent necessary proper provision shall be made so that the successors and assigns of the Surviving Corporation Parent assume the obligations set forth in this Section 7.66.4.
Appears in 1 contract
Officers’ and Directors’ Indemnification. (a) In For a period of six (6) years following the event Effective Time, Buyer shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless, and provide advancement of expenses to, each person who is not, or has been at any threatened time prior to the date hereof or actual who becomes prior to the Effective Time, a Director or Officer of Seller or any Seller Subsidiary (each, an “Indemnified Party”) against all costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities (collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal criminal, administrative or administrativeinvestigative, arising out of actions or omissions occurring on or prior to the Effective Time (including, without limitation, any such claimmatters, action, suit, proceeding acts or investigation omissions occurring in which any person who is now, or has been at any time prior to connection with the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance approval of this Agreement or any and the consummation of the Transactionstransactions contemplated hereby), whether in any case asserted or arising before claimed prior to, at or after the Effective Time, ; provided that any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that standards set forth under applicable law for indemnification shall be made by the Company shall indemnify and hold harmless, and after court in which the Effective Time the Surviving Corporation shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, suit or proceeding was brought or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (B) the Indemnified Parties may retain independent counsel satisfactory to them, and the Company and the Surviving Corporation, shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty days after statements therefor are received, and (C) the Company and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); counsel that provides material services to Buyer) selected by Buyer and provided further, however, that the Surviving Corporation shall have no obligation hereunder reasonably acceptable to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.6, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Corporation, thereof, provided that the failure to so notify shall not affect the obligations of the Company and the Surviving Corporation except to the extent such failure to notify materially prejudices such partyParty.
(b) Parent and MergerCo agree that all rights to indemnification existing in favor ofIf Buyer, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claim. Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such terms.
(c) This Section 7.6 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6.
(d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity and shall is not be the continuing or surviving corporation or entity of such consolidation or merger or merger, (ii) transfers or conveys all or substantially all of its properties and assets to any person or entity(iii) transfers, by means of a distribution, sale, assignment or other transaction, all of the stock of the Surviving Corporation or all or substantially all of its assets, to any person, then, and in each such case, Buyer shall cause proper provision shall to be made so that the successors successor and assigns assign of Buyer or the Surviving Corporation assume assumes the obligations set forth in this Section 7.6and in such event all references to the Surviving Corporation in this Section shall be deemed a reference to such successor and assign.
(c) For a period of six (6) years from the Effective Time, Buyer shall provide that portion of directors’ and officers’ liability insurance that serves to reimburse the present and former Officers and Directors of Seller and the Seller Subsidiaries (determined as of the Effective Time) (as opposed to Seller) with respect to claims against such Officers and Directors arising from facts or events which occurred before the Effective Time, on terms no less favorable than those in effect on the date hereof; provided, however, that Buyer may substitute therefor policies providing at least comparable coverage containing terms and conditions no less favorable than those in effect on the date hereof; provided, however that in no event shall Buyer be required to expend more than 250% of the current amount expended by Seller (the “Insurance Amount”) to maintain or procure such directors’ and officers’ liability insurance coverage; provided, further that if Buyer is unable to maintain or obtain the insurance called for by this Section 6.06(c), Buyer shall obtain as much comparable insurance as, in the good faith judgment of the Surviving Corporation’s board, is available for the Insurance Amount.
(d) Any Indemnified Party wishing to claim indemnification under Section 6.06(a), upon learning of any claim, action, suit, proceeding or investigation described above, shall promptly notify Buyer thereof; provided that the failure so to notify shall not affect the obligations of Buyer under Section 6.06(a) unless and to the extent that Buyer is actually and materially prejudiced as a result of such failure.
(e) The provisions of this Section 6.06 shall survive consummation of the Merger and 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. The Surviving Corporation shall pay (as incurred) all expenses, including reasonable expenses of counsel, that an Indemnified Party may incur in enforcing the indemnity and other obligations provided for in this Section 6.06.
Appears in 1 contract
Samples: Merger Agreement (Wesbanco Inc)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, demand, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary director or agent officer of the Company General Partner, the Partnership or any of the Company Partnership Subsidiaries (each, an “Indemnified Party” and collectively, the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a trustee, director, officer, employee, fiduciary or agent of the Company General Partner, the Partnership or any of the Company Partnership Subsidiaries, or is or was serving at the request any Employee Benefit Plan of the Company Partnership or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprisePartnership Subsidiaries, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby, or thereby whether in any case asserted or arising at or before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company Surviving Partnership shall indemnify and hold harmless, and after the Effective Time Time, Parent and the Surviving Corporation Partnership (together with the Partnership, the “Indemnitors”), shall indemnify and hold harmless, as and to the full fullest extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigationinvestigation (collectively, “Indemnifiable Amounts”), and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation after the Effective TimeIndemnitors, shall promptly (but in any event within ten (10) calendar days of written request) pay expenses in advance of the final disposition of any such threatened or actual claim, action, suit, demand, proceeding or investigation to each Indemnified Party to the full fullest extent permitted by applicable law, ; (B) the Indemnitors shall have the right to defend each Indemnified Parties Party in any proceeding which may retain counsel satisfactory give rise to them, and the Company and the Surviving Corporation, shall pay all fees and expenses payment of such counsel for the Indemnified Parties within thirty days after statements therefor are received, and (C) the Company and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matterIndemnifiable Amounts hereunder; provided, however, that neither the Company nor Indemnitors shall notify such Indemnified Party of any such decision to defend within ten (10) calendar days of receipt of notice of any such proceeding, and, provided further, that the Surviving Corporation Indemnitors shall not, without the prior written consent of such Indemnified Party, consent to the entry of any judgment against such Indemnified Party or enter into any settlement or compromise which (I) includes an admission of fault of such Indemnified Party or (II) does not include, as an unconditional term thereof, the full release of such Indemnified Party from all liability in respect of such proceeding, which release shall be in form and substance reasonably satisfactory to such Indemnified Party and (C) notwithstanding clause (B) above, if in a proceeding to which an Indemnified Party is a party by reason of the Indemnified Party’s service as a director, officer, employee, or agent of the General Partner, the Partnership or any Partnership Subsidiary, (I) such Indemnified Party reasonably concludes that he or she may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with the position of other defendants in such proceeding, (II) a conflict of interest or potential conflict of interest exists between such Indemnified Party and the Indemnitors, or (III) if the Indemnitors fail to assume the defense of such proceeding in a timely manner, such Indemnified Party shall be entitled to be represented by separate legal counsel of such Indemnified Party’s choice at the expense of the Indemnitors; provided, however, that none of the Indemnitors shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); and provided further, however, that the Surviving Corporation Indemnitors shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.66.6, upon learning of any such threatened or actual claim, action, suit, demand, proceeding or investigation, shall promptly notify the Company Partnership and, after the Effective Time, the Surviving Corporation, Partnership thereof, ; provided that the failure to so notify shall not affect the obligations of the Company Partnership and the Surviving Corporation Partnership except to the extent extent, if any, such failure to promptly notify materially and adversely prejudices such party.
(b) Parent and MergerCo each agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, each present and former director and officer of General Partner, the directors, officers, employees and agents of the Company Partnership and the Company Partnership Subsidiaries provided for in the Articles of Organization respective organizational documents or Bylaws as otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including shall survive the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; (provided, however, that all rights to indemnification in respect of any claims (each a "“Claim"”) asserted or made within such period shall continue until the final disposition of such Claim. ) and that Parent and MergerCo assume and will honor such obligations.
(c) Prior to the Effective Time, the Company shall Partnership shall, at its expense, purchase an a non-cancelable extended reporting period endorsement ("Reporting Tail Coverage") under with respect to the Company's Partnership’s existing directors' ’ and officers' ’ liability insurance coverage for the Company's Partnership’s directors and officers in (the “D&O Policy”) (provided that the Partnership shall have the option to select a form different carrier to write such endorsement if such carrier has an A.M. Best rating at least as favorable as the Partnership’s current carrier or is otherwise reasonably acceptable to the Company Parent), which shall provide such directors and officers and the Surviving Partnership with coverage for six (6) years following the Effective Time of not less than the existing coverage (and not more than $20,000,000) under, and have other terms not materially less favorable to, the insured persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; providedPartnership. The Surviving Partnership shall maintain such policies in full force and effect, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such termscontinue to honor all obligations thereunder.
(cd) This The obligations under this Section 7.6 is intended for 6.6 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.6 applies without the irrevocable benefit of, and consent of such affected indemnitee (it being expressly agreed that the indemnitees to grant whom this Section 6.6 applies shall be express third party rights to, the Indemnified Parties beneficiaries of this Section 6.6 and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6herein).
(de) In the event that Parent or the Surviving Corporation Partnership or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation corporation, partnership or other entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person or entityPerson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Partnership, as the case may be, assume the obligations set forth in this Section 7.66.6.
Appears in 1 contract
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, Parent and the Surviving Corporation, shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are received, and (C) the Company Company, Parent and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided furtherfurther that the Company, however, that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.6, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, the directorseach present and former director, officersofficer, employees employee, fiduciary and agents agent of the Company and the Company Subsidiaries provided for in the Articles of Organization respective charters or Bylaws as by-laws or otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "“Claim"”) asserted or made within such period shall continue until the disposition of such Claim. From and after the Effective Time, Parent and the Surviving Corporation also agree to indemnify and hold harmless the present and former officers and directors of the Company and the Company Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more Company Subsidiaries and such officers and directors as listed in Section 7.6(b) of the Company Disclosure Schedule.
(c) Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's ’s existing directors' ’ and officers' ’ liability insurance coverage for the Company's ’s directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; provided, however, than in any event so long as the total aggregate cost of such Reporting Tail Coverage shall not exceed is less than $175,000 750,000 (the "Maximum Amount"“Premium Limit”); and provided, further, . In the event that if such coverage cannot be obtained the Premium Limit is insufficient for such costcoverage, the Company will maintain, for may enter into an agreement to spend up to that amount to purchase such six-year period, the maximum amount of comparable lesser coverage as may be obtained with such amount. Parent shall, and shall be available for cause the Maximum Amount on Surviving Corporation to, maintain such termspolicy in full force and effect, and continue to honor the obligations thereunder.
(cd) This The obligations under this Section 7.6 is intended for shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 7.6 applies without the irrevocable benefit of, and consent of such affected indemnitee (it being expressly agreed that the indemnitees to grant whom this Section 7.6 applies shall be third party rights to, the Indemnified Parties beneficiaries of this Section 7.6 and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6herein).
(de) In the event that Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person or entityperson, then, and in each such case, to the extent necessary proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 7.6.
Appears in 1 contract
Samples: Merger Agreement (Rc2 Corp)
Officers’ and Directors’ Indemnification. (a) In For a period of six years beginning on the Closing Date and ending on the six year anniversary of the Closing Date, in the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person Person who is now, or has been at any time prior to the date hereofOriginal Date, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary officer or agent employee of the Company or any of the Company its Subsidiaries (the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary officer or agent employee of the Company or any of its Subsidiaries and arising out of events occurring prior to the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the TransactionsEffective Time, whether in any case case, such claim is asserted or arising before or after the Effective Time, the parties hereto Company, Parent and MergerCo agree to cooperate and use their commercially reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation and Parent shall (subject to Section 7.8(b) below and Section 4 of the Common Equity Holders Agreement) indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement (provided such settlement is effected with the prior written consent of Parent) in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay expenses incurred by each Indemnified Party as the same are incurred in advance of the final disposition of any claim, suit, proceeding or investigation to each such Indemnified Party to the full extent permitted such expenses may be advanced in accordance with applicable law and the Company’s and its Subsidiaries organizational documents (provided that any Person to whom expenses are advanced provides an undertaking in writing to repay such advances if it is determined by lawa court of competent jurisdiction that such Person is not entitled to indemnification), (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, Parent and the Surviving Corporation, Corporation shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are receivedreceived to the extent such expenses may be reimbursed in accordance with applicable law and the Company’s and its Subsidiaries organizational documents (provided that any Person to whom expenses are advanced provides an undertaking in writing to repay such advances if it is determined by a court of competent jurisdiction that such Person is not entitled to indemnification), and (C) the Company Company, Parent and the Surviving Corporation will use their respective commercially reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, further that the Company, Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.67.8, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, the directorseach present and former director, officers, employees officer and agents employee of the Company and the Company its Subsidiaries provided for in the Articles of Organization their respective charters or Bylaws as by-laws or otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, Original Date shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claimclaim. Prior to From and after the Effective Time, Parent and the Surviving Corporation also agree to indemnify and hold harmless the present and former officers and directors of the Company and its Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more of its Subsidiaries, all of which are disclosed on Schedule 7.8(b) hereof.
(c) The Company (prior to Closing) shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's ’s existing directors' ’ and officers' ’ liability insurance coverage for the Company's ’s and its Subsidiaries’ directors and officers in a form acceptable to the Company which that shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons Persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company (the “Tail Policy”); provided that none of Parent, Merger Sub, and/or the Surviving Corporation and/or any of its Subsidiaries will have any obligation to pay any premiums or otherwise incur any cost or expense on or with respect to the Tail Policy, except to the extent any such amounts are accrued for on a dollar-for-dollar basis as a current liability in Closing Working Capital (as finally determined). Prior to seeking any claim for indemnification against Parent, Merger Sub, the Company; provided, howeverand/or the Surviving Corporation and/or any of its Subsidiaries under Section 7.8(a), than Section 7.8(b), any indemnification or contribution agreement with any of the following Persons and/or any indemnification, contribution or similar provision contained in any event of the total aggregate cost organizational documents of any of the foregoing Persons (if applicable), any such Reporting Indemnified Party shall first proceed against and exhaust any and all rights or remedies he or she may have under the Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as Policy or otherwise. Parent shall be available for named as an additional insured under the Maximum Amount on such termsTail Policy to the extent necessary to implement the foregoing provisions.
(cd) This The obligations under this Section 7.6 is intended for 7.8 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 7.8 applies without the irrevocable benefit of, and to grant third party rights to, consent of such Indemnified Party (it being expressly agreed that the Indemnified Parties and to whom this Section 7.8 applies shall be binding on all successors third party beneficiaries of this Section 7.8 and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6herein).
(de) In the event that Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity 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 or entityperson, then, and in each such case, to the extent necessary proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 7.67.8.
(f) Notwithstanding any provision herein to the contrary, from and after the Closing, the Parent, MergerCo, the Surviving Corporation and their Affiliates shall have no obligation to indemnify any Indemnified Party or other Person entitled to indemnification under this Section 7.8 or under any organizational documents of the Company or any of its Affiliates or under any of the agreements disclosed on Schedule 7.8(b) hereof (and such Person shall have no rights under the insurance policies of the Company and its Affiliates) to the extent any such claim arises from or relates to a breach by the Company or any Common Equity Holder of, a representation, warranty, covenant, agreement or is covered by indemnity under this Agreement (without regard to time limitations set forth herein). Notwithstanding any other provision in this Agreement, nothing herein shall limit recovery by any such Indemnified Party or other Person under the Tail Policy.
Appears in 1 contract
Samples: Agreement and Plan of Merger (WII Components, Inc.)
Officers’ and Directors’ Indemnification. (a) In It is understood and agreed that the event of any threatened or actual claimCompany shall indemnify and hold harmless and, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to from and after the Effective Time, a the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) indemnify and hold harmless, as and to the fullest extent permitted by applicable Law, each director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (each, an “Indemnified Party” and collectively, the "“Indemnified Parties"”) isagainst any and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or is threatened to beactual claim, made a party based in whole action, suit, demand, proceeding or in part on, or arising in whole or in part out of, or pertaining investigation relating to (i) the fact that he such Indemnified Party is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby or thereby, whether in any case asserted or arising at or before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in In the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising at or before or after the Effective Time), (A) the CompanyCompany and, and the Surviving Corporation after the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) promptly pay expenses in advance of the final disposition of any such threatened or actual claim, action, suit, demand, proceeding or investigation to each Indemnified Party to the full fullest extent permitted by lawapplicable Law, subject to the receipt of an undertaking by such Indemnified Party to repay such expenses if it is ultimately determined that such Indemnified Party is not entitled to be indemnified and (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company and and, after the Effective Time, the Surviving Corporation, Corporation shall (and Parent shall cause the Surviving Corporation to) pay all reasonable and documented fees and expenses of such counsel for the Indemnified Parties within thirty days twenty (20) Business Days after statements therefor are received, and (C) the Company and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which prior written consent shall not be unreasonably withheld, conditioned or delayed); and provided provided, further, however, that the Company and the Surviving Corporation shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by them of such Indemnified Party in the manner contemplated hereby is prohibited by applicable lawLaw. Any Indemnified Party wishing to claim indemnification under this Section 7.66.5, upon learning of any such threatened or actual claim, action, suit, demand, proceeding or investigation, shall promptly notify the Company and, after the Effective Time, the Surviving CorporationCorporation thereof in writing; provided, thereof, provided that the failure promptly to so notify in writing shall not affect the obligations of the Company and the Surviving Corporation except to the extent extent, if any, such failure to notify materially prejudices such partythem.
(b) Parent and MergerCo agree Merger Sub each agrees that all rights to indemnification and advancement of expenses existing in favor of, and all limitations on the personal liability of, each Indemnified Party provided for in Section 6.5(a) above or in the directors, officers, employees and agents respective certificates of incorporation or bylaws (or other applicable organizational documents) of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as otherwise in effect as of the date hereof with respect to matters occurring prior to (including through any agreement or arrangement between the Effective TimeCompany or any Company Subsidiary, on the one hand, and including any director, officer, employee or agent of the Company or any Company Subsidiary, on the other hand, previously made available to Parent) shall survive the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification indemnification, advancement of expenses and limitations on personal liability in respect of any claims (each a "Claim") claim asserted or made within such period shall continue until the final disposition of such Claim. Prior to the Effective Time, the Company shall purchase an extended reporting claim.
(c) For a period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for of six (6) years following after the Effective Time Time, Parent shall cause to be maintained in effect the current policies of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the CompanyCompany (provided that Parent may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are no less advantageous) with respect to claims arising from or related to facts or events which occurred at or before the Effective Time; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage that Parent shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed $175,000 300% of the annual premiums paid as of the date hereof by the Company for such insurance (such 300% amount, the "Maximum Amount"“Base Premium”); provided, further, if such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the Base Premium, Parent shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Base Premium; provided, further, that if Parent in its sole discretion elects, by giving written notice at least 10 days prior to the Effective Time, then, in lieu of the foregoing insurance, effective as of the Effective Time, Parent shall purchase a directors’ and officers’ liability insurance “tail” or “runoff” insurance program for a period of six (6) years after the Effective Time with respect to wrongful acts and/or omissions committed or allegedly committed at or prior to the Effective Time (such coverage shall have an annual aggregate coverage limit over the term of such policy in an amount equal to the annual aggregate coverage limit under the Company’s existing directors and officers liability policy, and in all other material respects shall be comparable to such existing coverage) and the Company shall, upon Parent’s request therefor, reasonably cooperate with Parent in connection therewith; provided, that the premium for such “tail” or “runoff” coverage shall not exceed an amount equal to the Base Premium; provided, further, that if the current policies of directors’ and officers’ liability insurance maintained by the Company cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available maintained for the Maximum Amount on Base Premium and such terms“tail” or “runoff” coverage can only be obtained at an annual premium in excess of the Base Premium, Parent shall maintain the most advantageous “tail” or “runoff” coverage obtainable for an annual premium equal to the Base Premium.
(cd) This Section 7.6 6.5 is intended for the irrevocable benefit of, and to grant third party beneficiary rights to, the Indemnified Parties and their respective heirs and shall be binding on all successors and assigns of Parent, MergerCo, the Company Parent and the Surviving Corporation. Each of the Indemnified Parties and their respective heirs shall be entitled to enforce the covenants contained in provisions of this Section 7.66.5.
(de) In the event that that, following the Effective Time, Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or merger, (ii) transfers or conveys all or substantially all of its properties and assets to any person Person or entity(iii) commences a dissolution, liquidation, assignment for the benefit of creditors or similar action, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, assume the applicable obligations set forth in this Section 7.66.5.
Appears in 1 contract
Samples: Merger Agreement (Navisite Inc)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified PartiesINDEMNIFIED PARTIES") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or or, pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their commercially reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay reasonable expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, and the Surviving CorporationCorporation and Parent after the Effective Time, shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties within thirty 30 days after statements therefor are received, and (C) the Company and Company, the Surviving Corporation and Parent will use their respective commercially reasonable best efforts to assist in the vigorous defense of any such matter; providedprovided that none of the Company, however, that neither the Company nor the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, further that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable lawlaw (whereupon any advances received shall be repaid to the Parent or the Surviving Corporation). Any Indemnified Party wishing to claim indemnification under this Section 7.67.5, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving CorporationCorporation and Parent, thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo Acquisition Sub agree that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger Offer and the TransactionsMerger, shall continue in full force and effect for a period of not less than six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "ClaimCLAIM") asserted or made within such period shall continue until the disposition of such Claim. Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such terms.
(c) This Section 7.6 7.5 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.67.5.
(d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.67.5.
Appears in 1 contract
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, demand proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary director or agent officer of the Company or any of the Company Subsidiaries (each, an “Indemnified Party” and collectively, the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary director or agent officer of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary director or agent officer of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby or thereby, whether in any case asserted or arising at or before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that then (A) the Company shall indemnify and hold harmlessand, from and after the Effective Time Time, the Surviving Corporation shall indemnify and hold harmless, as and to the full fullest extent permitted by applicable lawLaw, each Indemnified Party against any and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and and, in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising at or before or after the Effective Time), (AB) the CompanyCompany and, and the Surviving Corporation after the Effective Time, the Surviving Corporation shall promptly pay expenses in advance of the final disposition of any such threatened or actual claim, action, suit, demand, proceeding or investigation to each Indemnified Party to the full fullest extent permitted by law, applicable Law and (BC) the Indemnified Parties may retain counsel satisfactory to them, and the Company and and, after the Effective Time, the Surviving Corporation, Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties within thirty twenty (20) days after statements therefor are received, and (C) the Company and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); and provided furtherfurther that the Company, however, that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable lawLaw; and provided, further, that as a condition precedent to any payment pursuant to clause (B), an Indemnified Party must first provide a written undertaking (in form and substance reasonably satisfactory to Parent) to repay such payments in the event of a determination as set forth in the immediately preceding proviso. Any Indemnified Party wishing to claim indemnification under this Section 7.66.5, upon learning of any such threatened or actual claim, action, suit, demand, proceeding or investigation, shall promptly notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent extent, if any, such failure to promptly notify materially prejudices such party. Parent and/or the Surviving Corporation shall be entitled to participate in and/or control, to the extent provided in any applicable indemnification agreements to which Company is a party, the defense of any matter covered by this Section 6.5(a) at their sole cost and expense.
(b) Section 6.5(b) of the Disclosure Schedules lists all Company or Company Subsidiary officers and directors who have entered into indemnification agreements with the Company. Parent and MergerCo Merger Sub each agree that all rights to indemnification and advancement of expenses existing in favor of, and all limitations on the personal liability of, each Indemnified Party pursuant to Section 6.5(a) above or in the directors, officers, employees and agents respective certificates of incorporation or bylaws (or other applicable organizational documents) of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as otherwise in effect as of the date hereof with respect to matters occurring prior to hereof, shall, without limitation of any such rights that would otherwise exist in favor of such Indemnified Party (including through any written agreement between the Effective TimeCompany or any Company Subsidiary, on the one hand, and including any Indemnified Party or employee or agent of the Company or any Company Subsidiary, on the other hand), survive the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification indemnification, advancement of expenses and limitations on personal liability in respect of any claims (each a "Claim") asserted or made against such Indemnified Party, employee or agent within such period pursuant to Section 6.5(a) above shall continue until the final disposition of such Claim. Prior to claim.
(c) For a period of six (6) years after the Effective Time, the Company Surviving Corporation shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under cause to be maintained in effect the Company's existing current policies of directors' ’ and officers' ’ liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company (provided, however, that the Surviving Corporation may substitute therefor policies with reputable and financially sound carriers with coverage in amount and scope, and on other terms, which in the aggregate are no less advantageous to the Indemnified Parties than the Company’s current directors’ and officers’ liability insurance policies) with respect to claims arising from or related to acts or omissions which occurred at or before the Effective Time; provided, however, than that the Surviving Corporation shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the annual premiums paid as of the date hereof by the Company for such insurance (such 300% amount, the “Base Premium”); provided, further, that if such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in any event excess of the total aggregate cost Base Premium, or expires, is terminated or canceled during such six-year period, the Surviving Corporation will obtain as much directors’ and officers’ insurance obtainable for the remainder of such Reporting Tail Coverage shall period for a premium on an annualized basis not exceed $175,000 (in excess of the "Maximum Amount")Base Premium; and provided, further, that if effective as of the Effective Time, the Surviving Corporation in its sole discretion may elect in lieu of any of the foregoing insurance to purchase a directors’ and officers’ liability insurance “tail” or “runoff” insurance program for a period of six (6) years after the Effective Time with respect to wrongful acts and/or omissions committed or allegedly committed at or prior to the Effective Time (such coverage canshall have an aggregate coverage limit over the term of such policy in an amount not to exceed the annual aggregate coverage limit under the Company’s existing directors and officers liability policy, and in all other respects shall be comparable to such existing coverage), provided that the premium for such “tail” or “runoff” coverage shall not exceed an amount equal to the Base Premium, provided that if the current policies of directors’ and officers’ liability insurance maintained by the Company can not be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available maintained for the Maximum Amount on Base Premium and such terms“tail” or “runoff” coverage can only be obtained at an annual premium in excess of the Base Premium, Parent shall maintain the most advantageous “tail” or “runoff” coverage obtainable for an annual premium not in excess of the Base Premium.
(cd) Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 6.5 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 6.5 applies without the consent of each such affected Indemnified Party. This Section 7.6 6.5 is intended for the irrevocable benefit of, and to grant third party beneficiary rights to, the Indemnified Parties and their respective heirs and shall be binding on all successors and assigns of Parent, MergerCo, the Company Parent and the Surviving Corporation. Each of the Indemnified Parties and their respective heirs shall be entitled to enforce the covenants contained in provisions of this Section 7.66.5.
(de) In the event that that, following the Effective Time, Parent or the Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other person or entity Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person Person (including by dissolution, liquidation, assignment for the benefit of creditors or entitysimilar action), then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 7.66.5.
Appears in 1 contract
Officers’ and Directors’ Indemnification. The Company shall, and from and after the Effective Time, the Surviving Corporation shall, indemnify, defend and hold harmless the present and former directors, officers, employees and agents of the Company or any Subsidiaries (athe "Indemnified Parties") In against all losses, claims, damages, costs, expenses (including reasonable attorney's fees and expenses), liabilities or judgments or amounts that are paid in settlement with the event approval of the indemnifying party of or in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal investigation based in whole or administrative, including, without limitation, any such claim, action, suit, proceeding in part on or investigation arising in which any person who is now, whole or has been at any time prior in part out of or pertaining to the date hereof, fact that such person is or who becomes prior to the Effective Time, was a director, officer, employee, fiduciary director or agent officer of the Company or any of the Company Subsidiaries whether pertaining to any matter existing at or prior to the Effective Time and whether asserted or claimed prior to, or at or after, the Effective Time (the "Indemnified PartiesLiabilities") is), or is threatened to be, made a party including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in any each case asserted to the fullest extent a corporation may indemnify its own directors or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation shall indemnify and hold harmlessofficers, as and to the full extent permitted by case may be, in compliance with applicable law, each Indemnified Party against any lossesunder the OBCA as the same exists or may hereafter be amended (but, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with the case of any such threatened or actual claimamendment, actiononly to the extent that such amendment permits broader rights than such law permitted prior to such amendment and only to the extent such amendment is not retroactively applicable) . Without limiting the foregoing, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation is brought against any Indemnified Parties (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (Bi) the Indemnified Parties may retain counsel satisfactory to them, and the Company them and the Surviving Corporation, and the Company or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties within thirty days after promptly as statements therefor are receivedreceived and otherwise advance to such Indemnified Parties upon request reimbursement of reasonable documented expenses incurred, in either case to the fullest extent and in the manner permitted by the OBCA; and (Cii) the Company or the Surviving Corporation, and the Surviving Corporation Indemnified Party, will use their respective all reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, provided that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, that the Surviving Corporation shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable lawconsent. Any Indemnified Party wishing to claim indemnification under this Section 7.66.16, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, (or after the Effective Time, the Surviving Corporation, thereof, provided that ) (but the failure to so notify shall not affect the obligations of the Company and the Surviving Corporation relieve a party from any liability which it may have under this Section 6.16 except to the extent such failure to notify materially prejudices such party.
(b) Parent ). The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. The Company, Buyer and MergerCo Buyer Subsidiary agree that all rights to indemnification indemnification, including provisions relating to advances or expenses incurred in defense of any action or suit, existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as in effect as of the date hereof Indemnified Parties with respect to matters occurring prior to through the Effective Time, and including shall survive the Merger and the Transactions, shall continue in full force and effect for a period of six (6) not less than three years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") Indemnified Liabilities asserted or made within such period shall continue until the disposition of such ClaimIndemnified Liabilities. Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such terms.
(c) This Section 7.6 6.16 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of ParentBuyer, MergerCoBuyer Subsidiary, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.66.16.
(d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.6.
Appears in 1 contract
Samples: Merger Agreement (Avant Corp)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, demand, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, demand, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, 30 partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, demand, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, subject to the provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not entitled to such amounts, (B) the Indemnified Parties may retain one counsel satisfactory to them, and the Company Company, and the Surviving CorporationCorporation and Parent after the Effective Time, shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties within thirty 30 days after statements therefor are received, and (C) the Company and Company, the Surviving Corporation and Parent will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; providedprovided that none of the Company, however, that neither the Company nor the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, further that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.67.4, upon learning of any such claim, action, suit, demand, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving CorporationCorporation and Parent, thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo Acquisition Sub agree that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger Offer and the TransactionsMerger, shall continue in full force and effect for a period of not less then six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claim. Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable on the whole to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such terms.
(c) This Section 7.6 7.4 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.67.4.
(d) In the event that Parent or the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent and the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 7.67.4.
Appears in 1 contract
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified PartiesINDEMNIFIED PARTIES") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or or, pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their commercially reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation and Parent after the Effective Time, shall promptly pay reasonable expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, and the Surviving CorporationCorporation and Parent after the Effective Time, shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties within thirty 30 days after statements therefor are received, and (C) the Company and Company, the Surviving Corporation and Parent will use their respective commercially reasonable best efforts to assist in the vigorous defense of any such matter; providedprovided that none of the Company, however, that neither the Company nor the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, further that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable lawlaw (whereupon any advances received shall be repaid to the Parent or the Surviving Corporation). Any Indemnified Party wishing to claim indemnification under this Section 7.67.5, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving CorporationCorporation and Parent, thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo agree that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claim. Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such terms.
(c) This Section 7.6 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6.
(d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.6.
Appears in 1 contract
Samples: Merger Agreement (Wyman Gordon Co)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, demand proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (each, an “Indemnified Party” and collectively, the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby or thereby, whether in any case asserted or arising at or before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time Time, the Surviving Corporation and Parent shall indemnify and hold harmless, as and to the full fullest extent permitted by applicable law, each Indemnified Party against any and all losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising at or before or after the Effective Time), (A) the CompanyCompany and, and the Surviving Corporation after the Effective Time, the Surviving Corporation and Parent shall promptly pay expenses in advance of the final disposition of any such threatened or actual claim, action suit, demand, proceeding or investigation to each Indemnified Party to the full fullest extent permitted by applicable law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company Company, Parent and the Surviving Corporation, Corporation shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty (30) days after statements therefor are received, and (C) the Company and, after the Effective Time, Parent and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, that neither none of the Company nor Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); and provided furtherfurther that the Company, however, that the Surviving Corporation and Parent shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.66.5, upon learning of any such threatened or actual claim, action, suit, demand, proceeding or investigation, shall promptly notify the Company and, after the Effective Time, the Surviving Corporation, Corporation and Parent thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and Company, the Surviving Corporation and Parent except to the extent extent, if any, such failure to promptly notify materially prejudices such party.
(b) Parent and MergerCo each agree that all rights to indemnification existing in favor of, and all limitations on the personal liability of, each Indemnified Party provided for in the directors, officers, employees and agents respective charters or bylaws (or other applicable organizational documents) of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including shall survive the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time and, at the Effective Time, shall become the joint and several obligations of Parent, the Surviving Corporation and any applicable Company Subsidiary; provided, however, that all rights to indemnification in respect of any claims (each each, a "“Claim"”) asserted or made within such period shall continue until the final disposition of such Claim. From and after the Effective Time, Parent and MergerCo each also agree to jointly and severally indemnify and hold harmless the present and former officers and directors of the Company and the Company Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more Company Subsidiaries and such officers and directors as listed in Section 6.5(b) of the Company Disclosure Schedule.
(c) Prior to the Effective Time, the Company shall purchase an a non-cancelable extended reporting period endorsement ("Reporting Tail Coverage") under the Company's ’s existing directors' ’ and officers' ’ liability insurance coverage for the Company's ’s directors and officers in a the same form acceptable to as presently maintained by the Company Company, which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; provided. Parent shall, howeverand shall cause the Surviving Corporation to, than maintain such policies in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); full force and providedeffect, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such termsand continue to honor all obligations thereunder.
(cd) Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 6.5 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.5 applies without the consent of each such affected indemnitee. This Section 7.6 6.5 is intended for the irrevocable benefit of, and to grant third party beneficiary rights to, the Indemnified Parties and their respective heirs and shall be binding on all successors and assigns of Parent, MergerCo, the Company Parent and the Surviving Corporation. Each of the Indemnified Parties and their respective heirs shall be entitled to enforce the covenants contained in provisions of this Section 7.66.5.
(de) In the event that that, following the Effective Time, Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or merger, (ii) transfers or conveys all or substantially all of its properties and assets to any person Person or entity(iii) commences a dissolution, liquidation, assignment for the benefit of creditors or similar action, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, assume the obligations set forth in this Section 7.66.5.
Appears in 1 contract
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer, employee, fiduciary or agent of the Company or any of the Company SubsidiariesCompany, or is or was serving at the request of the Company or any of the Company Subsidiaries as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterpriseenterprise (ii) any matter pursuant to which such Indemnified Party is entitled to indemnification under applicable law or the Company Charter, or (iiiii) the negotiation, execution or performance of this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that (A) the Company shall indemnify and hold harmless, and after the Effective Time the Surviving Corporation shall indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation after the Effective Time, shall promptly pay expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by law, (B) the Indemnified Parties may retain counsel satisfactory to them, and the Company and the Surviving Corporation, shall pay all fees and expenses of such counsel for the Indemnified Parties within thirty 30 days after statements therefor are received, and (C) the Company and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matter; provided, however, provided that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided further, however, further that the Surviving Corporation shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.67.12, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and, after the Effective Time, the Surviving Corporation, thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and the Surviving Corporation except to the extent such failure to notify materially prejudices such party.
(b) Parent and MergerCo agree agrees that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees and agents of the Company and the Company Subsidiaries provided for in the Articles of Organization or Bylaws as in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including the Merger and the TransactionsMerger, shall continue in full force and effect for a period of not less then six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claim. Prior to the Effective Time, the Company shall purchase an extended reporting period endorsement ("Reporting Tail Coverage") under the Company's existing directors' and officers' liability insurance coverage for the Company's directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company; provided, however, than in any event the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained for such cost, the Company will maintain, for such six-year period, the maximum amount of comparable coverage as shall be available for the Maximum Amount on such terms.
(c) This Section 7.6 7.12 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.67.12.
(d) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person or entity 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 or entity, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.67.12.
Appears in 1 contract
Samples: Merger Agreement (Inverness Medical Technology Inc/De)
Officers’ and Directors’ Indemnification. (a) In the event of any threatened or actual claim, action, suit, demand, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a directortrustee, officer, employee, fiduciary director or agent officer of the Company or any of the Company Subsidiaries (each, an “Indemnified Party” and collectively, the "“Indemnified Parties"”) is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he or she is or was a trustee, director, officer, employee, fiduciary or agent of the Company or any of the Company Subsidiaries, or is or was serving at the request of the Company or any of the Company Subsidiaries as a trustee, director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) the negotiation, execution or performance of this Agreement Agreement, any agreement or document contemplated hereby or delivered in connection herewith, or any of the Transactionstransactions contemplated hereby, or thereby whether in any case asserted or arising at or before or after the Effective Time, the parties hereto agree to cooperate and use their reasonable best efforts to defend against and respond thereto. It is understood and agreed that the Company shall indemnify and hold harmless, and after the Effective Time Time, the Surviving Corporation Entity (together with the Company, the “Indemnitors”), shall indemnify and hold harmless, as and to the full fullest extent permitted by applicable law, each Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys' ’ fees and expenses), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or investigationinvestigation (collectively, “Indemnifiable Amounts”), and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), (A) the Company, and the Surviving Corporation after the Effective TimeIndemnitors, shall promptly (but in any event within 10 calendar days of written request) pay expenses in advance of the final disposition of any such threatened or actual claim, action, suit, demand, proceeding or investigation to each Indemnified Party to the full fullest extent permitted by applicable law, ; (B) the Indemnitors shall have the right to defend each Indemnified Parties Party in any proceeding which may retain counsel satisfactory give rise to them, and the Company and the Surviving Corporation, shall pay all fees and expenses payment of such counsel for the Indemnified Parties within thirty days after statements therefor are received, and (C) the Company and the Surviving Corporation will use their respective reasonable best efforts to assist in the vigorous defense of any such matterIndemnifiable Amounts hereunder; provided, however, that neither the Indemnitors shall notify such Indemnified Party of any such decision to defend within ten (10) calendar days of receipt of notice of any such proceeding, and, provided further, that the Indemnitors shall not, without the prior written consent of such Indemnified Party, consent to the entry of any judgment against such Indemnified Party or enter into any settlement or compromise which (I) includes an admission of fault of such Indemnified Party or (II) does not include, as an unconditional term thereof, the full release of such Indemnified Party from all liability in respect of such proceeding, which release shall be in form and substance reasonably satisfactory to such Indemnified Party and (C) notwithstanding clause (B) above, if in a proceeding to which an Indemnified Party is a party by reason of the Indemnified Party’s service as a trustee, director, officer, employee, or agent of the Company nor or any of the Surviving Corporation Company Subsidiaries, (I) such Indemnified Party reasonably concludes that he or she may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with the position of other defendants in such proceeding, (II) a conflict of interest or potential conflict of interest exists between such Indemnified Party and the Indemnitors, or (III) if the Indemnitors fail to assume the defense of such proceeding in a timely manner, such Indemnified Party shall be entitled to be represented by separate legal counsel of such Indemnified Party’s choice at the expense of the Indemnitors; provided, however, that none of the Indemnitors shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); and provided further, however, further that the Surviving Corporation Indemnitors shall have no obligation hereunder to any Indemnified Party when A-22 113 and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and non-appealable, that indemnification by such entities of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 7.66.6, upon learning of any such threatened or actual claim, action, suit, demand, proceeding or investigation, shall promptly notify the Company and, after the Effective Time, the Surviving Corporation, Entity thereof, ; provided that the failure to so notify shall not affect the obligations of the Company and the Surviving Corporation Entity except to the extent extent, if any, such failure to promptly notify materially and adversely prejudices such party.
(b) Parent and MergerCo each agree that all rights to indemnification or exculpation existing in favor of, and all limitations on the personal liability of, the directors, officers, employees each present and agents former director and officer of the Company and the Company Subsidiaries provided for in the Articles of Organization respective charters or Bylaws as bylaws (or other applicable organizational documents) or otherwise in effect as of the date hereof with respect to matters occurring prior to the Effective Time, and including shall survive the Merger and the Transactions, shall continue in full force and effect for a period of six (6) years from the Effective Time; provided, however, that all rights to indemnification in respect of any claims (each a "“Claim"”) asserted or made within such period shall continue until the final disposition of such Claim. From and after the Effective Time, the Surviving Entity shall indemnify and hold harmless the present and former officers and directors of the Company and the Company Subsidiaries in respect of acts or omissions occurring prior to the Effective Time to the extent provided in any written indemnification agreements between the Company and/or one or more Company Subsidiaries and such officers and directors as listed in Section 6.6(b) of the Company Disclosure Schedule (a form of which is publicly available through XXXXX which form is consistent with the agreements entered into).
(c) Prior to the Effective Time, the Company shall purchase an a non-cancelable extended reporting period endorsement ("Reporting Tail Coverage") under the Company's ’s existing directors' ’ and officers' ’ liability insurance coverage for the Company's ’s directors and officers in a the same form acceptable to as presently maintained by the Company Company, which shall provide such directors and officers with coverage for six (6) years following the Effective Time of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' ’ and officers' ’ liability insurance coverage presently maintained by the Company; provided, however, that in no event shall the Company be required to expend pursuant to this Section 6.6(c) more than in any event an amount per year of coverage equal to one hundred and fifty percent (150%) of current annual premiums paid by the total aggregate cost of such Reporting Tail Coverage shall not exceed $175,000 (the "Maximum Amount"); and provided, further, that if such coverage cannot be obtained Company for such costinsurance. In the event that, but for the proviso to the immediately preceding sentence, the Company will maintainwould be required to expend more than one hundred and fifty percent (150%) of current annual premiums, for such six-year period, the Company shall obtain the maximum amount of comparable coverage as such insurance obtainable by payment of annual premiums equal to one hundred and fifty percent (150%) of current annual premiums. Parent shall, and shall be available for cause the Maximum Amount on Surviving Entity to, maintain such termspolicies in full force and effect, and continue to honor all obligations thereunder.
(cd) This The obligations under this Section 7.6 is intended for 6.6 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.6 applies without the irrevocable benefit of, and consent of such affected indemnitee (it being expressly agreed that the indemnitees to grant whom this Section 6.6 applies shall be third party rights to, the Indemnified Parties beneficiaries of this Section 6.6 and shall be binding on all successors and assigns of Parent, MergerCo, the Company and the Surviving Corporation. Each of the Indemnified Parties shall be entitled to enforce the covenants contained in this Section 7.6herein).
(de) In the event that Parent or the Surviving Corporation Entity or any of its their respective successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person or entityperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation Entity, as the case may be, assume the obligations set forth in this Section 7.66.6.
(f) The Company shall give Parent the opportunity to participate in the defense or settlement of any shareholder or partner litigation against the Company, its directors or officers, the General Partner or the Partnership relating to the Asset Sale, the Mergers or the other transactions contemplated by this Agreement; provided, however, that no such settlement shall be agreed to without Parent’s consent if such settlement, either individually or together with all other settlements of such shareholder or partner litigation would require aggregate payments by the Company or any of the Company Subsidiaries in excess of $1,500,000 or impose any material obligation or restriction on the Company or any of the Company Subsidiaries after the Effective Time.
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