Common use of Officers and Directors Insurance Clause in Contracts

Officers and Directors Insurance. 5.7.1 From and after the Closing Date, Parent shall, and shall cause the Surviving Corporation and all its Subsidiaries to, indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, the Persons who on or prior to the Closing Date were directors, managers, managing members, members, officers, employees, agents or stockholders of the Acquired Companies (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of any Acquired Company at any time on or prior to the Closing Date. In addition, Parent shall, or shall cause the Surviving Corporation and all its Subsidiaries to, pay any expenses of any Indemnitee under this Section 5.7, as incurred to the fullest extent permitted under applicable Law, provided that the Person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law. Parent agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Closing Date as provided in the Organizational Documents of the Acquired Companies as now in effect, and any indemnification agreements or arrangements with any Acquired Company shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. 5.7.2 Parent agrees that for a period of six years after the Closing, it shall not permit any Acquired Company or the Surviving Corporation to amend, repeal or modify any provision in their respective Organizational Documents in a manner that would adversely affect the rights and/or exculpation or indemnification of present or former directors and officers, it being the intent of the Parties that the directors and officers of the Acquired Companies prior to the Closing shall continue thereafter to be entitled to such exculpation and indemnification to the fullest extent permitted under applicable Laws, and Parent shall cause the Acquired Companies, the Surviving Corporation and all their respective Subsidiaries to perform in a timely manner and to otherwise honor such obligations in all respects. 5.7.3 On or immediately prior to the Closing Date, the Company shall purchase a six year tail insurance policy with respect to officers’ and directors’ liability insurance (the “D&O Tail Insurance”) covering the Persons who are presently covered by the Acquired Companies’ officers’ and directors’ liability insurance policy (a copy of which heretofore has been delivered to Parent), with respect to actions and omissions occurring prior to the Closing, on terms which are at least as favorable as the terms of such insurance in effect for the Acquired Companies on the date hereof and from an insurer or insurers having claims paying ratings no lower than the Acquired Companies’ current insurer. The costs and fees of the D&O Tail Insurance policy shall be borne by the Participating Holders as Transaction Expenses. 5.7.4 The obligations of Parent under this Section 5.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 5.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 5.7 applies shall be third party beneficiaries of this Section 5.7). The provisions of this Section 5.7 (a) are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her Representatives; and (b) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise. 5.7.5 In the event that Parent or any of its successors or assigns (a) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger; or (b) transfers or conveys all or substantially all of its properties and assets to any Person or Persons, then, and in each such case, all necessary and proper provision shall be made such that the successors and assigns of Parent shall assume all of the obligations of Parent set forth in this Section 5.7. 5.7.6 The provisions of this Section 5.7 are intended to be for the benefit of, and shall be enforceable by, the Indemnitees, their heirs and personal representatives.

Officers and Directors Insurance. 5.7.1 (a) Kinross agrees that for the period from the Effective Date until six years after the Effective Date, Kinross will cause the Company or any successor to the Company (including the successor resulting from the winding-up or liquidation or dissolution of the Company) to maintain the Company's current directors' and officers' insurance policy or an equivalent policy subject in either case to terms and conditions no less advantageous to the directors and officers of the Company and its Subsidiaries than those contained in the policy in effect on the date hereof, for all present and former directors and officers of the Company, and its Subsidiaries, covering claims made prior to or within six years after the Effective Date. Kinross also agrees that after the expiration of such six-year period it will use all commercially reasonable efforts to cause such directors and officers to be covered under Kinross' then existing directors and officers insurance policy, if any. (b) From and after the Closing Effective Date, Parent Kinross shall, and shall cause the Surviving Corporation and all Company (or its Subsidiaries successor) to, indemnify, defend indemnify and hold harmless, to the fullest extent permitted under applicable Law, the Persons who on or prior Law (and to the Closing Date were directors, managers, managing members, members, officers, employees, agents or stockholders of the Acquired Companies (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of any Acquired Company at any time on or prior to the Closing Date. In addition, Parent shall, or shall cause the Surviving Corporation and all its Subsidiaries to, pay any also advance expenses of any Indemnitee under this Section 5.7, as incurred to the fullest extent permitted under applicable Law), provided that the Person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law. Parent agrees that all rights each present and former director, officer and employee of the Indemnitees Company and its Subsidiaries (each, an "Indemnified Person") against any costs or expenses (including reasonable legal fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, inquiry, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or related to indemnification and exculpation from liabilities for acts such Indemnified Person's service as a director, officer or omissions occurring employee of the Company and/or any of its Subsidiaries or services performed by such Persons at the request of the Company and/or any of its Subsidiaries at or prior to or following the Closing Date as provided in Effective Date, whether asserted or claimed prior to, at or after the Organizational Documents Effective Date, including the approval of this Agreement, the completion of the Acquired Companies as now in effect, and Offer or any indemnification agreements or arrangements with any Acquired Company shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required other transactions contemplated by Law. 5.7.2 Parent agrees that for a period this Agreement or arising out of six years after or related to this Agreement and the Closing, it shall not permit any Acquired Company or the Surviving Corporation to amend, repeal or modify any provision in their respective Organizational Documents in a manner that would adversely affect the rights and/or exculpation or indemnification of present or former directors and officers, it being the intent of the Parties that the directors and officers of the Acquired Companies prior to the Closing shall continue thereafter to be entitled to such exculpation and indemnification to the fullest extent permitted under applicable Laws, and Parent shall cause the Acquired Companies, the Surviving Corporation and all their respective Subsidiaries to perform in a timely manner and to otherwise honor such obligations in all respects. 5.7.3 On or immediately prior to the Closing Date, transactions contemplated hereby. Neither Kinross nor the Company shall purchase a six year tail insurance policy with respect to officers’ and directors’ liability insurance (the “D&O Tail Insurance”) covering the Persons who are presently covered by the Acquired Companies’ officers’ and directors’ liability insurance policy (a copy of which heretofore has been delivered to Parent)settle, with respect to actions and omissions occurring prior compromise or consent to the Closingentry of any judgment in any claim, on terms which are at least action, suit, proceeding or investigation or threatened claim, action, suit, proceeding or investigation involving or naming an Indemnified Person or arising out of or related to an Indemnified Person's service as favorable as the terms of such insurance in effect for the Acquired Companies on the date hereof and from an insurer a director, officer or insurers having claims paying ratings no lower than the Acquired Companies’ current insurer. The costs and fees employee of the D&O Tail Insurance policy shall be borne by the Participating Holders as Transaction Expenses. 5.7.4 The obligations of Parent under this Section 5.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 5.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 5.7 applies shall be third party beneficiaries of this Section 5.7). The provisions of this Section 5.7 (a) are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her Representatives; and (b) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise. 5.7.5 In the event that Parent or Company and/or any of its successors Subsidiaries or assigns services performed by such Persons at the request of the Company and/or any of its Subsidiaries at or prior to or following the Effective Date without the prior written consent of that Indemnified Person (asuch consent not to be unreasonably withheld) consolidates with unless such settlement, compromise or merges into any other Person and is not the continuing or surviving corporation or entity consent includes an unconditional release of such consolidation Indemnified Person from all liability arising out of such claim, action, suit, proceeding or merger; or (b) transfers or conveys all or substantially all of its properties and assets to any Person or Persons, then, and in each such case, all necessary and proper provision shall be made such that the successors and assigns of Parent shall assume all of the obligations of Parent set forth in this Section 5.7investigation. 5.7.6 The provisions of this Section 5.7 are intended to be for the benefit of, and shall be enforceable by, the Indemnitees, their heirs and personal representatives.

Officers and Directors Insurance. 5.7.1 From Indemnifica- tion. (a) The Company shall indemnify and hold harm- less, and, after the Closing Effective Date, Parent shall, and shall cause the Surviving Corporation and all its Subsidiaries to, indemnify, defend the Parent shall indemnify and hold harmless, to the fullest extent permitted under applicable Law, the Persons who on or prior to the Closing Date were directors, managers, managing members, members, officers, employees, agents or stockholders each present and former director and officer of the Acquired Companies Company (collectivelythe "Indemnified Parties") against any expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative to which such Indemnified Party was made, or threatened to be made, a party by reason of the “Indemnitees”) with respect to all acts fact that such Indemnified Party was or omissions by them in their capacities as such is a director, officer, employee or taken agent of the Company, or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture trust or other enterprise and which arises out of or pertains to any Acquired Company at any time on action or omission occurring prior to the Closing Date. In additionEffec- tive Date (including, Parent shallwithout limitation, any which arise out of or shall cause the Surviving Corporation and all its Subsidiaries to, pay any expenses of any Indemnitee under this Section 5.7, as incurred relate to the fullest transactions contemplated by this Agreement) to the full extent permitted under applicable Law, provided that the Person to whom expenses are advanced provides an undertaking to repay such advances to Delaware Law (and the extent required by applicable Law. Parent agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Closing Date as provided in the Organizational Documents of the Acquired Companies as now in effect, and any indemnification agreements or arrangements with any Acquired Company shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended or otherwise modified in any manner that would adversely affect the rights of the Indemnitees, unless such modification is required by Law. 5.7.2 Parent agrees that for a period of six years after the Closing, it shall not permit any Acquired Company or the Surviving Corporation and the Parent, as the case may be, will advance expenses to amend, repeal or modify any provision in their respective Organizational Documents in a manner that would adversely affect the rights and/or exculpation or indemnification of present or former directors and officers, it being the intent of the Parties that the directors and officers of the Acquired Companies prior each such person to the Closing shall continue thereafter full extent so permitted); provided, that any determination required to be made with respect to whether an Indemnified Party's conduct complied with the standards set forth in the Delaware Law shall be made by independent counsel selected by such Indemnified Party and reasonably satisfactory to the Company or the Surviving Corporation and the Parent, as the case may be (which shall pay such counsel's fees and expenses). In the event any such claim, action, suit, proceeding or investigation if brought against any Indemnified Party (whether arising before or after the Effective Date), (a) the Company (or the Parent and the Surviving Corpora- tion after the Effective Date) shall retain counsel for the Indemnified Parties reasonably satisfactory to them, (b) the Company (or the Surviving Corporation and the Parent after the Effective Date) shall pay all fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, and (c) the Company (or the Surviving Corporation and the Parent after the Effective Date) will use its reasonable best efforts to assist in the vigorous defense of any such matter, provided, that neither the Company, the Surviving Corporation nor the Parent shall be liable for any such settlement effected without their written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 7.2, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company or the Surviving Corporation or the Parent thereof and shall deliver to the Company or the Surviving Corporation or the Parent an undertaking to repay any amounts advanced pursuant hereto in the event a court of competent jurisdiction shall ultimately determine, after exhaustion of all avenues of appeal, that such Indemnified Party was not entitled to such exculpation and indemnification to under this Section. (b) For five years after the fullest extent permitted under applicable Laws, and Parent shall cause the Acquired CompaniesEffective Date, the Surviving Corporation and all the Parent shall use their respective Subsidiaries reasonable best efforts to perform in a timely manner provide officers' and to otherwise honor such obligations in all respects. 5.7.3 On or immediately directors' liability insurance for events occurring prior to the Closing Date, the Company shall purchase a six year tail insurance policy with respect to officers’ and directors’ liability insurance (the “D&O Tail Insurance”) Effective Time covering the Persons Indemnified Parties who are presently currently covered by the Acquired Companies’ Company's officers’ ' and directors’ ' liability insurance policy (a copy of which has heretofore has been delivered to the Parent)) on terms no less favorable than those of such policy in terms of coverage and amounts or, with respect if substantially similar insurance coverage is unavailable, the best available coverage; provided, however, that the Surviving Corporation shall not be required to actions pay a per annum amount of premiums for such officers' and omissions occurring directors' insurance in excess of 200 percent of the last per annum amount of premiums incurred prior to the Closingdate hereof, on terms which are at least but in such case shall purchase as favorable much coverage as possible for such amount. The Company represents and warrants that the terms last per annum amount of such insurance in effect for premiums incurred by the Acquired Companies on Company is approxi- mately $280,000. (c) This Section 7.2 shall survive the date hereof and from an insurer or insurers having claims paying ratings no lower than the Acquired Companies’ current insurer. The costs and fees consumma- tion of the D&O Tail Insurance policy Merger. Subject to the Delaware Law, the certificate of incorporation and bylaws of the Company and the Surviving Corporation shall not be borne by amended in a manner which adversely affects the Participating Holders as Transaction Expenses. 5.7.4 The obligations rights of Parent the Indemnified Parties under this Section 5.7 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 5.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 5.7 applies shall be third party beneficiaries of this Section 5.7). The provisions of this Section 5.7 (a) are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her Representatives; and (b) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise7.2. 5.7.5 In the event that Parent or any of its successors or assigns (a) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger; or (b) transfers or conveys all or substantially all of its properties and assets to any Person or Persons, then, and in each such case, all necessary and proper provision shall be made such that the successors and assigns of Parent shall assume all of the obligations of Parent set forth in this Section 5.7. 5.7.6 The provisions of this Section 5.7 are intended to be for the benefit of, and shall be enforceable by, the Indemnitees, their heirs and personal representatives.

Officers and Directors Insurance. 5.7.1 From and after the Closing Date, Parent shall, and shall cause the Surviving Corporation and all its Subsidiaries to, indemnify, defend and hold harmless5.9.1 The Parties agree that, to the fullest maximum extent permitted under by applicable Law, the Persons who on all rights to indemnification, advancement of expenses and exculpation from liability for acts or omissions occurring in connection with or prior to the Closing Date were directorsnow existing in favor of each Person who is now, managers, managing members, members, officers, employees, agents or stockholders of the Acquired Companies (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of any Acquired Company has been at any time on or prior to the Closing Date. In addition, Parent shall, date hereof or shall cause the Surviving Corporation and all its Subsidiaries to, pay any expenses of any Indemnitee under this Section 5.7, as incurred to the fullest extent permitted under applicable Law, provided that the Person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law. Parent agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or who becomes prior to the Closing Date Closing, a manager, director or officer of the Company or any of its Subsidiaries (“D&O Indemnified Persons”), including as provided in the Company Organizational Documents the Organizational Documents of each of its Subsidiaries, or any Contract between the Acquired Companies as now in effect, Company or any of its Subsidiaries and any indemnification agreements or arrangements with any Acquired Company shall D&O Indemnified Person, will survive the Closing Date and shall will continue in full force and effect in accordance with their respective terms for a period of not less than six (6) years after the Closing Date (or, in the case of any Contract, in accordance with its terms. Such rights shall ), and will not be amended amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of the Indemnitees, unless such modification is required by Lawany D&O Indemnified Person. 5.7.2 Parent agrees that for a period of six years after the Closing, it shall not permit any Acquired Company or the Surviving Corporation to amend, repeal or modify any provision in their respective Organizational Documents in a manner that would adversely affect the rights and/or exculpation or indemnification of present or former directors and officers, it being the intent of the Parties that the directors and officers of the Acquired Companies prior to the Closing shall continue thereafter to be entitled to such exculpation and indemnification to the fullest extent permitted under applicable Laws, and Parent shall cause the Acquired Companies, the Surviving Corporation and all their respective Subsidiaries to perform in a timely manner and to otherwise honor such obligations in all respects. 5.7.3 On or immediately prior 5.9.2 Prior to the Closing Date, the Company and its Subsidiaries shall purchase obtain a prepaid extended reporting period or tail policy insuring the D&O Indemnified Persons under the current program of directors’ and officers’ liability insurance or employment practices liability insurance maintained by the Company or any of its Subsidiaries which shall be effective commencing with the Closing Date and ending six year tail insurance policy (6) years thereafter and which shall afford coverage for actual or alleged acts or omissions occurring at, during or prior to the Closing Date including with respect to officers’ the Transactions (including the Merger), in each case, on terms with respect to such coverage and directors’ liability insurance amounts at least as favorable to such Persons as those of such policies in effect on the date hereof (for purposes hereof, all such policies, the “D&O Tail Insurance”) covering ). The Company and Parent shall bear the Persons who are presently covered by the Acquired Companies’ officers’ and directors’ liability cost of such insurance policy (a copy of which heretofore has been delivered to Parent)coverage equally. Parent shall not, with respect to actions and omissions occurring prior to and, following the Closing, on terms which are at least as favorable as shall not allow the terms Surviving Corporation or any of such insurance in effect for the Acquired Companies on the date hereof and from an insurer its Subsidiaries to, amend, waive, modify or insurers having claims paying ratings no lower than the Acquired Companies’ current insurer. The costs and fees of terminate the D&O Tail Insurance policy shall be borne by the Participating Holders as Transaction ExpensesInsurance. 5.7.4 The 5.9.3 If the Surviving Corporation or any of its Subsidiaries (or any of their respective successors or assigns) transfers all or substantially all of its equity interests, properties or assets to any Person, through any single transaction or combination of transactions of any kind, then, and in each such case, Parent will cause proper provision to be made so that such Person fully assumes the obligations of Parent under set forth in this Section 5.7 5.9. 5.9.4 This Section 5.9 shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 5.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 5.7 applies shall be third party beneficiaries of this Section 5.7). The provisions of this Section 5.7 (a) are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her Representatives; and (b) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise. 5.7.5 In the event that Parent or any of its successors or assigns (a) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger; or (b) transfers or conveys all or substantially all of its properties and assets to any Person or Persons, thenD&O Indemnified Person, and in each such case, all necessary their respective successors, assigns, heirs, executors, administrators and proper provision estates, and such Persons shall be made such that the successors and assigns of Parent shall assume all of the obligations of Parent set forth in this Section 5.7. 5.7.6 The provisions express third-party beneficiaries of this Section 5.7 are intended to be 5.9 but only for the benefit of, and shall be enforceable by, the Indemnitees, their heirs and personal representativessuch purposes.