Common use of Directors and Officers Indemnification Insurance Clause in Contracts

Directors and Officers Indemnification Insurance. For a period of six years following the Effective Time, COFI shall indemnify, defend and hold harmless the present and former directors, officers and employees of RCSB and the RCSB Subsidiaries (each, an "Indemnified Party") against all costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and arising out of matters existing or occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement and the agreements executed pursuant to this Agreement), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that RCSB would have been permitted under Delaware law and its Certificate of Incorporation or Bylaws in effect on the date of this Agreement to indemnify such person (and COFI will also advance expenses as incurred to the fullest extent permitted under applicable law so long as the person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); PROVIDED HOWEVER, that (a) any determination required to be made with respect to whether a person's conduct complies with the standards set forth under Delaware law and RCSB's Certificate of Incorporation and Bylaws shall be made by independent counsel mutually agreed upon between COFI and the Indemnified Party, and (b) COFI shall be obligated pursuant to this Section 5.16 to pay for only one firm of counsel for all Indemnified Parties, unless an Indemnified Party shall have reasonably concluded, based on the advice of counsel, that in order to be adequately represented, separate counsel is necessary for such Indemnified Party, in which case COFI shall be obligated to pay for such separate counsel. COFI shall cause the persons serving as officers and directors of RCSB and the RCSB Subsidiaries immediately prior to the Effective Time to be covered for a period of six years following the Effective Time by the directors' and officers' liability insurance policy maintained by COFI and Charter One Bank (provided that COFI may substitute or cause RCSB to substitute therefor single premium tail coverage with a policy limit equal to RCSB's existing annual coverage limit) with respect to acts or omissions occurring prior to the Effective Time which were committed by such officers and directors in their capacity as such, provided that the additional premium cost to COFI does not exceed 200% of RCSB's present annual premium cost (the "Maximum Amount") and that the insurance is available. If the amount of the premium necessary to maintain or procure such coverage exceeds the Maximum Amount, COFI shall use all reasonable efforts to maintain the most advantageous policies of directors' and officers' insurance obtainable for a premium equal to the Maximum Amount.

Directors and Officers Indemnification Insurance. For a period of six years following (a) Without limiting any additional rights that any Person may have under any indemnification agreement, employment agreement or Benefit Plan, from the Effective TimeTime through the sixth anniversary of the date on which the Effective Time occurs, COFI to the fullest extent provided by the Company’s and the Operating Company’s organizational documents as in effect immediately prior to Closing, the Surviving Corporation shall, and Parent shall indemnifycause the Surviving Corporation to, defend indemnify and hold harmless each person who served as an officer or director of the present and former directors, officers and employees of RCSB and Company or the RCSB Subsidiaries (each, an "Indemnified Party") against all costs Operating Company or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with their predecessors at any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and arising out of matters existing or occurring at or time prior to the Effective Time (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any threatened, pending or completed Proceeding to which a Company Indemnified Party is a party or with respect to which a Company Indemnified Party is otherwise involved (including as a witness), arising out of or pertaining to the transactions contemplated by fact that the Company Indemnified Party is or was an officer, director, employee, fiduciary or agent of the Company or the Operating Company or their predecessors (including any Proceeding arising out of or pertaining to this Agreement and the agreements executed pursuant to this Agreementtransactions and actions contemplated hereby), whether such Proceeding is commenced, or any claim or matter therein is asserted or claimed claimed, prior to, at or after the Effective Time. In the event of any such Proceeding (x) each Company Indemnified Party will be entitled to advancement from the Surviving Corporation of fees, costs and expenses (including reasonable attorney’s fees and disbursements) incurred in connection with and prior to the fullest extent final disposition of such Proceedings, such fees, costs and expenses (including reasonable attorney’s fees and disbursements) to be advanced within ten (10) Business Days of receipt by the Surviving Corporation from the Company Indemnified Party of a request therefor; provided that RCSB would have been permitted under Delaware law and its Certificate of Incorporation or Bylaws in effect on the date of this Agreement to indemnify such person (and COFI will also advance expenses as incurred to the fullest extent permitted under applicable law so long as the any person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification); PROVIDED HOWEVER, that (ay) the Surviving Corporation shall not settle, compromise or consent to the entry of any determination required to judgment in any Proceeding in which indemnification could be made with respect to whether a person's conduct complies with the standards set forth under Delaware law and RCSB's Certificate sought by such Company Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of Incorporation and Bylaws shall be made by independent counsel mutually agreed upon between COFI and the such Company Indemnified PartyParty from all Liability arising out of such Proceeding, investigation or claim or such Company Indemnified Party otherwise consents, and (bz) COFI the Surviving Corporation shall be obligated pursuant to this Section 5.16 to pay for only one firm cooperate in the defense of counsel for all Indemnified Parties, unless an Indemnified Party shall have reasonably concluded, based on the advice of counsel, that in order to be adequately represented, separate counsel is necessary for any such Indemnified Party, in which case COFI shall be obligated to pay for such separate counsel. COFI shall cause the persons serving as officers and directors of RCSB and the RCSB Subsidiaries immediately prior to the Effective Time to be covered for a period of six years following the Effective Time by the directors' and officers' liability insurance policy maintained by COFI and Charter One Bank (provided that COFI may substitute or cause RCSB to substitute therefor single premium tail coverage with a policy limit equal to RCSB's existing annual coverage limit) with respect to acts or omissions occurring prior to the Effective Time which were committed by such officers and directors in their capacity as such, provided that the additional premium cost to COFI does not exceed 200% of RCSB's present annual premium cost (the "Maximum Amount") and that the insurance is available. If the amount of the premium necessary to maintain or procure such coverage exceeds the Maximum Amount, COFI shall use all reasonable efforts to maintain the most advantageous policies of directors' and officers' insurance obtainable for a premium equal to the Maximum Amountmatter.

Directors and Officers Indemnification Insurance. For a period of six years following (a) From and after the Effective Time, COFI Parent shall indemnify, defend cause the Surviving Corporation to indemnify and hold harmless each person who is now, or has been at any time prior to the present and former directorsdate hereof, officers and employees an officer or director of RCSB and the RCSB Company or any of its Subsidiaries (each, an the "Indemnified PartyParties") against all any losses, claims, damages, judgments, settlements, liabilities, costs or expenses (including without limitation reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities fees and out-of-pocket expenses) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, and investigation arising out of matters existing or pertaining to acts or omissions, or alleged acts or omissions, by them in their capacities as such occurring at or prior to the Effective Time (including including, without limitation, in connection with the Offer, the Merger and the other transactions contemplated by this Agreement and the agreements executed pursuant to this Agreement), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that RCSB the Company or such Subsidiaries would have been permitted permitted, under Delaware applicable law and its the Certificate of Incorporation or Bylaws of the Company or the organizational documents of such Subsidiaries each as in effect on the date of this Agreement Agreement. In connection with the foregoing, Parent shall cause the Surviving Corporation to indemnify such person (and COFI will also advance expenses as incurred to the fullest extent permitted under applicable law so long as upon receipt from the person Indemnified Party to whom expenses are advanced provides an of a written undertaking to repay such advances if it is ultimately determined as contemplated by Section 145(e) of the DGCL). Parent shall cause the Surviving Corporation to pay all reasonable expenses, including reasonable attorneys' fees, that such person may be incurred by any Indemnified Party in enforcing this Section 7.6. If the indemnity provided by this Section 7.6(a) is not entitled available with respect to indemnificationany Indemnified Party, then Parent shall cause the Surviving Corporation, on the one hand, and the Indemnified Party, on the other hand, to contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving person or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 7.6. The parties acknowledge and agree that to the extent that the Surviving Corporation fails to comply with its indemnification obligations pursuant to this Section 7.6, Parent shall indemnify and hold harmless each of the Indemnified Parties to the same extent as the Surviving Corporation was required to indemnify such Indemnified Parties hereunder. (b) In any event of any such claim, action, suit, proceeding or investigation, (i) any Indemnified Party wishing to claim indemnification under this Section 7.6 shall, upon becoming aware of any such claim, action, suit, proceeding or investigation, promptly notify the Surviving Corporation thereof (provided that the failure to provide such notice shall not relieve the Parent or the Surviving Corporation of any liability or obligation it may have to such Indemnified Party under this Section 7.6 unless such failure materially prejudices Parent or the Surviving Corporation), and shall deliver to Parent and the Surviving Corporation the undertaking contemplated by Section 145(e) of the DGCL, (ii) Parent shall cause the Surviving Corporation to pay the 30 32 reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably acceptable to Parent and the Surviving Corporation, (iii) Parent and the Surviving Corporation shall cooperate in the defense of any such matter; provided, however, that neither Parent nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); PROVIDED HOWEVERand provided further, that (a) neither Parent nor the Surviving Corporation shall be liable under this Section 7.6 for the fees and expenses of more than one counsel for all Indemnified Parties in any determination single claim, action, suit, proceeding or investigation, except to the extent that, in the opinion of counsel for the Indemnified Parties, two or more of such Indemnified Parties have conflicting interests in the outcome of such claim, action, suit, proceeding or investigation such that additional counsel is required to be made with respect to whether a person's conduct complies with retained by such Indemnified Parties under applicable standards of professional conduct. (c) Unless otherwise required by law, (i) at the standards set forth under Delaware law and RCSB's Effective Time, the Certificate of Incorporation and Bylaws of the Surviving Corporation shall be made contain provisions providing for exculpation of director and officer liability and indemnification by independent counsel mutually agreed upon between COFI and the Surviving Corporation of the Indemnified PartyParties not less favorable to the Indemnified Parties than those provisions providing for exculpation of director and officer liability and indemnification by the Company of the Indemnified Parties contained in the Certificate of Incorporation and Bylaws of the Company as in effect on the date of this Agreement, and (bii) COFI shall be obligated pursuant to this Section 5.16 to pay for only one firm of counsel for all Indemnified Parties, unless an Indemnified Party shall have reasonably concluded, based on the advice of counsel, that in order to be adequately represented, separate counsel is necessary for such Indemnified Party, in which case COFI shall be obligated to pay for such separate counsel. COFI shall cause the persons serving as officers and directors of RCSB and the RCSB Subsidiaries immediately prior to the Effective Time to be covered for a period of six years following from the Effective Time Time, the Surviving Corporation and the Company's Subsidiaries shall not amend, repeal or modify any such provisions contained in their respective certificates of incorporation and bylaws, or other organizational documents of such Subsidiaries, to reduce or adversely affect the rights of the Indemnified Parties thereunder in respect of actions or omissions by them occurring at or prior to the Effective Time. (d) Parent shall cause the Surviving Corporation to purchase a four-year extended reporting period endorsement ("reporting tail coverage") under the Company's existing directors' and officers' liability insurance policy maintained by COFI and Charter One Bank coverage (or as much coverage as can be obtained for a total not in excess of 175% of the Current Premium), provided that COFI may substitute or cause RCSB to substitute therefor single premium such reporting tail coverage with a policy limit equal shall extend the director and officer liability coverage in force as of the date hereof from the Effective Time on terms, that in all material respects, are no less advantageous to RCSB's the intended beneficiaries thereof than the existing officers' and directors' liability insurance. "Current Premium" shall mean the last annual coverage limit) with respect to acts or omissions occurring premium paid prior to the Effective Time date hereof for the existing officers' and directors' liability insurance, which were committed by such officers the Company represents and directors in their capacity as suchwarrants to be $445,500. (e) This covenant is intended to be for the benefit of, provided that the additional premium cost to COFI does not exceed 200% of RCSB's present annual premium cost (the "Maximum Amount") and that the insurance is available. If the amount shall be enforceable by, each of the premium necessary to maintain or procure such coverage exceeds the Maximum Amount, COFI shall use all reasonable efforts to maintain the most advantageous policies of directors' Indemnified Parties and officers' insurance obtainable for a premium equal to the Maximum Amounttheir respective heirs and legal representatives. SECTION 7.7.