D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and after the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law. (b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement. (c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance. (d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law. (e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.8.
Appears in 5 contracts
Sources: Agreement and Plan of Merger (Sunlink Health Systems Inc), Agreement and Plan of Merger (Regional Health Properties, Inc), Agreement and Plan of Merger (Sunlink Health Systems Inc)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through the six-year anniversary of the date on which the Effective Time occursTime, Regional First Bank shall (i) indemnify and hold harmless each individual who at the Effective Time is, or any time prior to the Effective Time was, a director, officer or employee of Malvern or any of its Subsidiaries (the “Indemnified Party against Parties”) in respect of all claims, liabilities, losses, liabilities, damages, judgments, fines and reasonable feesfines, penalties costs and expenses (including legal expenses, including attorneys’ fees and disbursements, incurred ) in connection with any claim, Action suit, action, proceeding or investigation, whether civilwhenever asserted, criminal, administrative based on or investigative, arising out of or pertaining to the fact that the such Indemnified Party is or was an officer officer, director or director employee of SunLink Malvern or any of its Subsidiaries serving at any time while a director Malvern Subsidiary or officer of SunLink acts or any of its Subsidiaries, is omissions by such Indemnified Party in such capacity or was serving taken at the request of SunLink Malvern or one any Malvern Subsidiary, at or any time prior to the Effective Time (including any claim, suit, action, proceeding or investigation relating to the transactions contemplated hereby), to the fullest extent permitted by Law and (ii) assume all obligations of its Subsidiaries as an officer, director, manager, employee or agent of another Person, Malvern and any Malvern Subsidiary to the Indemnified Parties in respect of indemnification and exculpation from liabilities for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth as provided in the articles of incorporation and incorporation, charter, bylaws of SunLink as in effect on or similar organizational documents Malvern or the date of this Agreement.
(c) At the Effective TimeMalvern Subsidiaries. In addition, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years First Bank, from and after the Effective Time, provided that shall advance any expenses (including legal expenses) of any Indemnified Party under this Section 7.9 as incurred to the fullest extent permitted by applicable Law and in case that any articles of incorporation, charter, bylaws or similar organizational documents of Malvern or the Malvern Subsidiaries.
(ib) Regional’s insurance policy First Bank shall use its reasonable best efforts to maintain in existence as of effect for six years after the date of this Agreement expiresEffective Time, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much current directors’ and officers’ liability insurance policies maintained by Malvern (or provided that First Bank may substitute therefor policies of at least the same coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on and amounts containing terms and conditions which are no less advantageous to such officers and directors so long as substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; provided, however, that in no event shall First Bank be required to expend pursuant to this Section 7.9(b) more than an amount per year equal to 275% of reasonable equivalencecurrent annual premiums paid by Malvern for such insurance and, in the aggregateevent the cost of such coverage shall exceed that amount, First Bank shall purchase as much coverage as possible for such amount. The provisions of this Section 7.9 shall be deemed to have been satisfied if prepaid “tail” policies with the SunLink Indemnified Parties under same terms, conditions and coverage as indicated above have been obtained by Malvern for purposes of this Section 7.9 from carriers with the Current D&O Insurancesame or better rating as the carrier of such insurances as of the date of this Agreement. First Bank shall keep such coverage in effect after the Effective Time.
(dc) If Any Indemnified Party wishing to claim indemnification under Section 7.9(a), upon learning of any such Liability or Litigation, shall promptly notify First Bank thereof. The provisions of this Section 7.9 are intended for the benefit of, and shall be enforceable by, each Indemnified Party, his or her heirs and his or her Representatives and is in addition to, and not in substitution for, and in shall no way limit, any other rights to indemnification or contribution that any Indemnified Party makes any claim for indemnification may have under applicable Law, the articles of incorporation, charter, bylaws or advancement similar organizational documents of expenses under this Section 5.8 that is denied Malvern or the Malvern Subsidiaries, by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification contract or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) otherwise. In the event Regional First Bank or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in of First Bank or the case purchaser of a transfer of all or substantially all of the its assets and properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.87.9. This Section 7.9 shall survive the Effective Time.
Appears in 3 contracts
Sources: Merger Agreement (Malvern Bancorp, Inc.), Merger Agreement (Malvern Bancorp, Inc.), Merger Agreement (Malvern Bancorp, Inc.)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and after From the Effective Time through the six-year sixth (6th) anniversary of the date on which the Effective Time occurs, Regional shall each of Public Company and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless each 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 or officer of Merger Partner, Public Company or any of their respective subsidiaries (the “Indemnified Party Persons”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party Person is or was an officer officer, director, employee or director agent of SunLink Merger Partner, Public Company or any of its Subsidiaries serving at any time their respective subsidiaries, or, while a director or officer of SunLink Merger Partner, Public Company or any of its Subsidiariestheir respective subsidiaries, is or was serving at the request of SunLink ▇▇▇▇▇▇ Partner, Public Company or one any of its Subsidiaries their respective subsidiaries as an officer, a director, managerofficer, employee or agent of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the extent permitted under the applicable certificate or articles of incorporation and bylaws. Each Indemnified Person will be entitled to advancement of expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Public Company and the Surviving Corporation following receipt by Public Company or the Surviving Corporation from the Indemnified Party of a request therefor; provided, that any Person to whom expenses are advanced provides an undertaking, to the extent then required by the DGCL or the NRS, as applicable, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, the certificate of incorporation and bylaws of the Surviving Corporation will contain provisions at least as favorable as the provisions relating to the indemnification, advance of expenses and elimination of liability for monetary damages set forth in the certificate or articles of incorporation and bylaws of Merger Partner and Public Company immediately prior to the Effective Time.
(b) Prior to the Effective Time, Public Company shall purchase a six (6)-year prepaid “D&O tail policy” (the “D&O Public Company Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Public Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability to be mutually agreed by Public Company and ▇▇▇▇▇▇ Partner prior to the Closing (which approval will not be unreasonably withheld, conditioned or delayed), but that are no less favorable than the coverage provided under Public Company’s existing policies as of the date of this Agreement with respect to coverage of any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Public Company by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Merger).
(c) Prior to the Effective Time, ▇▇▇▇▇▇ Partner shall purchase a six (6)-year prepaid “D&O tail policy” (the “Merger Partner Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Merger Partner’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under ▇▇▇▇▇▇ Partner’s existing policies as of the date of this Agreement with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Merger Partner by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Merger).
(d) Public Company shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by a Person in successfully enforcing such Person’s rights provided in this Section 6.10.
(e) Public Company and Merger Partner agree that all rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in each favor of the current or former directors, officers or employees, as the case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement may be, of reasonable expenses (including reasonable attorneys’ fees) incurred Public Company, Merger Partner or any of their respective subsidiaries as provided in the defense their respective certificates of any such claim, Action incorporation or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act bylaws or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries organization documents or in respect of acts or omissions occurring or alleged to have occurred at or any agreement in existence immediately prior to the Effective Time than are set forth in shall survive the articles of incorporation Merger and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement continue in full force and effect effect. The provisions of this Section 6.10 are intended to be in addition to the rights otherwise available to the current officers and directors of Public Company, Merger Partner or any of their respective subsidiaries by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the Indemnified Persons, their heirs and their representatives. The obligations set forth in this Section 6.10 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person, or any Person who is a term beneficiary under the policies referred to in this Section 6.10 and their heirs and representatives, without the prior written consent of six years from and after such affected Indemnified Person or other Person.
(f) If the Effective Time, provided that in case that Surviving Corporation or Public Company or any of their respective successors or assigns shall (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns (in the case of a transfer of all or substantially such Person shall assume all of the properties and assets) obligations of Regional, shall expressly assume and succeed to the obligations such Person set forth in this Section 5.86.10.
(g) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Merger Partner, Public Company or any of their respective subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.10 is not prior to or in substitution for any such claims under such policies.
Appears in 2 contracts
Sources: Merger Agreement (Pieris Pharmaceuticals, Inc.), Merger Agreement (Pieris Pharmaceuticals, Inc.)
D&O Indemnification. (a) Without limiting any other All rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, and exculpation from and after the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of liabilities for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are existing in favor of the current or former directors or officers of each of the Acquired Companies (each, a “Company Indemnified Party”) as provided in the Organizational Documents of such Acquired Companies or in separate agreements between the Acquired Companies and individual officers and directors, shall continue to be binding upon by each such Acquired Company and their respective successor entities following the consummation of the Merger in accordance with their respective terms, and, for a period of six (6) years after the Effective Time, Buyer will fulfill and honor in all respects the obligations set forth in the articles Organizational Documents of incorporation and bylaws of SunLink as such Acquired Companies in accordance with the terms thereof in each case in effect on the date of this Agreement.
hereof, and for such six (c6) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain year period such endorsement rights will continue in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on accordance with their respective terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing amended, repealed or surviving corporation or entity of modified so as to adversely affect any Company Indemnified Party; provided that such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets indemnification shall be subject to any Personlimitation imposed from time to time under any applicable Legal Requirement and that Buyer shall be able to amend the Organizational Documents of any of the Acquired Companies so long as it honors and fulfills the obligation to indemnify such Company Indemnified Parties pursuant to the foregoing obligations. Any Company Indemnified Party wishing to claim indemnification under this Section 11.2, thenupon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Buyer; provided, further, that the failure to so notify shall not affect the obligations of the Surviving Corporation under this Section 11.2 except (and only) to the extent such failure to notify materially prejudices Buyer.
(b) This Section 11.2 shall survive consummation of the Merger and is intended to be for the benefit of, and in each such case, proper provision shall be made so that enforceable by, each Company Indemnified Party, his or her heirs and representatives, the successors Company and assigns each of the Acquired Companies (in whether or not party to this Agreement) and shall not be amended on or after the case of a transfer Effective Time without the consent of all or substantially all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.8Company Indemnified Parties.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Verisk Analytics, Inc.)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through Closing, Buyer shall, and shall cause the six-year anniversary of the date on which the Effective Time occursSale Entities to, Regional shall indemnify (i) indemnify, defend and hold harmless each Indemnified Party current and former director, officer and employee of the Sale Entities and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the request or for the benefit of any Sale Entity (each, an “Indemnitee” and, collectively, the “Indemnitees”) against all claims, liabilities, losses, liabilities, damages, judgments, fines and reasonable feesfines, penalties, costs (including amounts paid in settlement or compromise) and expenses, expenses (including attorneys’ fees and disbursements, incurred expenses of legal counsel) in connection with any actual or threatened claim, Action suit, action, proceeding or investigation, investigation (whether civil, criminal, administrative or investigative) (each, a “Claim”), whenever asserted, arising out of of, relating to or pertaining in connection with any action or omission relating to the fact that the Indemnified Party is or was an officer or director of SunLink or their position with any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions Sale Entity occurring or alleged to have occurred at before or prior on the Closing Date (including any Claim relating in whole or in part to this Agreement or the Effective TimeContemplated Transactions), whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled Law and (ii) assume all obligations of Seller and the Sale Entities to the Indemnitees in respect of limitation of liability, exculpation, indemnification and advancement of reasonable expenses as provided in (including reasonable attorneys’ feesA) incurred the respective Organizational Documents of each of the Sale Entities as currently in effect and (B) any indemnification agreements with an Indemnitee, which shall in each case survive the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, Contemplated Transactions and continue in full force and effect to the extent required permitted by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From At the Effective Time through the six-year anniversary of the date on which the Effective Time occursClosing, the articles of incorporation and bylaws of Regional shall contain, and Regional Buyer shall cause its articles of incorporation the “tail” insurance coverage acquired by Buyer pursuant to the Purchase and bylaws Sale Agreement to so contain, provisions no less favorable cover the Sale Entities with respect to indemnificationmatters arising on or before the Closing Date; provided, advancement however, that the cost of expenses such “tail” insurance coverage, when aggregated with the “tail” insurance coverage acquired by Buyer pursuant to the Purchase and exculpation Sale Agreement, shall be no greater than 300% of present and former directors and officers of SunLink and its Subsidiaries the annual premium currently paid by the Reporting Company in respect of acts or omissions occurring or alleged the coverage required to have occurred at or prior to the Effective Time than are set forth be obtained pursuant hereto and in the articles of incorporation Purchase and bylaws of SunLink as in effect on the date of this Sale Agreement.
(c) At the Effective Time, Regional shall purchase and cause The provisions of this Section 5.11 are (i) intended to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance benefit of, and maintain such endorsement in full force shall be enforceable by, each Indemnitee, his or her heirs and effect for a term of six years his or her representatives from and after the Effective TimeClosing, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premiumin addition to, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess substitution for or limitation of, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The obligations of Buyer and the Maximum Premium, on terms and conditions Sale Entities under this Section 5.11 shall not be terminated or modified in such a manner as to adversely affect the rights of reasonable equivalence, any Indemnitee to whom this Section 5.11 applies unless (A) such termination or modification is required by applicable Law or (B) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the aggregate, Indemnitees to the SunLink Indemnified Parties under the Current D&O Insurancewhom this Section 5.11 applies shall be third party beneficiaries of this Section 5.11).
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional that Buyer or any of its respective successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall is 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, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially Buyer shall assume all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations thereof set forth in this Section 5.85.11.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Berkshire Hathaway Energy Co), Purchase and Sale Agreement (Dominion Energy, Inc)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on From the date hereof or otherwise, from and after the Effective Time Closing Date through the six-year later of (i) the sixth anniversary of the date on which Closing Date and (ii) the Effective Time occursexpiration of any statute of limitations applicable to any claim, Regional action, suit, proceeding or investigation referred to below, the Company shall indemnify and hold harmless each present and former director and officer of the Company and its subsidiaries, determined on the Closing Date (the "Indemnified Party Parties"), against all any claims, losses, liabilities, damages, judgments, fines and reasonable fines, fees, costs and or expenses, including without limitation attorneys’ ' fees and disbursementsdisbursements (collectively, "Costs"), incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is matters existing or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at on or prior to the Effective TimeClosing Date, whether asserted or claimed prior to, at on or after the Effective TimeClosing Date, in each case to the fullest extent that SunLink the Company or such subsidiary would have been permitted to do so permitted, under applicable Law. Each Indemnified Party will be entitled law, indemnification agreements existing on the date hereof, the Articles of Association or Memorandum of Association of the Company or such subsidiary in effect on the date hereof, to advancement of reasonable indemnify such Person (and the Company shall also advance expenses (including reasonable attorneys’ fees) as incurred in to the defense of any such claim, Action or investigation from Regional following receipt by Regional from fullest extent permitted under applicable law provided the Indemnified Party of a request therefor; provided that any Indemnified Party person to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, undertaking to repay such advances if it is ultimately determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party person is not entitled to indemnification under applicable Lawindemnification).
(b) From Any Indemnified Party wishing to claim indemnification under this Section 5.9, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Effective Time through Company thereof, but the failure to so notify shall not relieve the Company of any liability or obligation it may have to such Indemnified Party except, and only to the extent, that such failure materially prejudices the Company. In the event of any such claim, action, suit, proceeding or investigation (whether arising before, on or after the Closing Date), the Company shall have the right to assume the defense thereof and the Company shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Company elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues that raise conflicts of interest between the Company and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Company shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received. If such indemnity is not available with respect to any Indemnified Party, then the Company and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits. In the event that any claim or claims are asserted or made within the aforesaid six-year anniversary of the date on which the Effective Time occursperiod, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws all rights to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries indemnification in respect of acts any such claim or omissions occurring or alleged to have occurred at or prior to claims shall continue until the Effective Time than are set forth in the articles final disposition of incorporation any and bylaws of SunLink as in effect on the date of this Agreementall such claims.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared Notwithstanding anything herein to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and contrary, if any claim, action, suit, proceeding or investigation (whether arising before, on or after the Effective Time, provided that in case that (iClosing Date) Regional’s insurance policy in existence as is made against any present or former director or officer of the date Company, on or prior to the sixth anniversary of the Closing Date, the provisions of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if Section 5.9 shall continue in effect until the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder final disposition of such six-year period for an annualized premium at claim, action, suit, proceeding or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insuranceinvestigation.
(d) If any Indemnified Party makes any claim This covenant is intended to be for indemnification or advancement of expenses under this Section 5.8 that is denied by Regionalthe benefit of, and a court shall be enforceable by, each of competent jurisdiction determines that the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled entitled, whether pursuant to such indemnification law, contract or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by lawotherwise.
(e) In To the event Regional or extent that the Company fails to perform any of its successors or assigns (in obligations pursuant to this Section 5.9, Purchaser shall assume the case of a transfer of all or substantially all of Regional’s properties obligations and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all rights of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in Company under this Section 5.85.9.
Appears in 2 contracts
Sources: Share Purchase and Tender Agreement (BMC Software Inc), Share Purchase and Tender Agreement (BMC Software Inc)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and For a period of six years after the Effective Time through Time, the six-year anniversary of the date on which the Effective Time occursSurviving Corporation shall indemnify, Regional shall indemnify defend and hold harmless each the present and former directors or officers of the Grasshopper Entities (each, an “D&O Indemnified Party XE "D&O Indemnified Party" ”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, Liabilities incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, Litigation arising out of or pertaining to to, the fact that the Indemnified Party such Person is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiariesthe Grasshopper Entities or, is or was serving at the request of SunLink or one of its Subsidiaries as an officerGrasshopper’s request, director, manager, employee or agent of another Personcorporation, in respect of partnership, joint venture, trust or other enterprise, and pertaining to matters, acts or omissions existing or occurring or alleged to have occurred at or prior to the Effective TimeTime (including matters, acts or omissions occurring in connection with the approval of this Agreement and the transactions contemplated by this Agreement), whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted provided under Grasshopper’s certificate of incorporation and bylaws as in effect as of the date of this Agreement (subject to do so under applicable Law. Each Indemnified Party will be entitled ), including provisions relating to advancement advances of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claimLitigation; provided, Action or investigation from Regional following receipt by Regional from that the Indemnified Party of a request therefor; provided that any D&O Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, a written undertaking to repay such advances if it is ultimately determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such D&O Indemnified Party is not entitled to indemnification under applicable Lawindemnification.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation The Surviving Corporation shall use its reasonable best efforts (and bylaws of Regional Grasshopper shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or reasonably cooperate prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as these efforts) to maintain in effect on for a period of six years after the date Effective Time Grasshopper’s existing directors’ and officers’ liability insurance policy (provided that the Surviving Corporation may substitute therefor (i) policies of this Agreement.
at least the same coverage and amounts containing terms and conditions which are substantially no less advantageous to the insured or (cii) At with the consent of Grasshopper given prior to the Effective Time, Regional shall purchase and cause any other policy) with respect to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties claims arising from an insurance carrier with the same of better credit rating as compared facts or events which occurred prior to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time; provided, provided that the Surviving Corporation shall not be obligated to make aggregate premium payments for such six-year period in case that respect of such policy (ior coverage replacing such policy) Regionalwhich exceed, for the portion related to Grasshopper’s insurance directors and officers, 250% of the annual premium payments currently paid on Grasshopper’s current policy in existence effect as of the date of this Agreement expires, is terminated (the “Maximum Amount XE "Maximum Amount" ”). If the amount of the premiums necessary to maintain or cancelled during procure such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed insurance coverage exceeds the Maximum PremiumAmount, then Regional the Surviving Corporation shall obtain as much use its reasonable best efforts to maintain the most advantageous policies of directors’ and officers’ liability insurance (obtainable for a premium equal to the Maximum Amount. In lieu of the foregoing, Enova, or coverage under Grasshopper in consultation with ▇▇▇▇▇, may obtain on or prior to the Effective Time, a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized “tail” prepaid policy providing equivalent coverage to that described in this Section 7.10(b) at a premium at or not in excess of to exceed the Maximum PremiumAmount. If the premium necessary to purchase such “tail” prepaid policy exceeds the Maximum Amount, on terms and conditions of reasonable equivalence, Enova or Grasshopper in consultation with Enova may purchase the aggregate, most advantageous “tail” prepaid policy obtainable for a premium equal to the SunLink Indemnified Parties Maximum Amount, and in each case, Enova and the Surviving Corporation shall have no further obligations under the Current D&O Insurancethis Section 7.10(b) other than to maintain such “tail” prepaid policy.
(dc) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional Surviving Corporation or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or if the Surviving Corporation (iior any successors or assigns) transfers shall transfer all or substantially all of its properties and assets Assets to any Person, then, then and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, Surviving Corporation shall expressly assume and succeed to the obligations set forth in this Section 5.87.10.
(d) The provisions of this Section 7.10 are intended to be for the benefit of and shall be enforceable by, each Grasshopper D&O Indemnified Party and their respective heirs and Representatives.
(e) Notwithstanding anything in this Section 7.10 to the contrary, no indemnification payments will be made to a D&O Indemnified Party with respect to an administrative proceeding or civil action initiated by any federal banking agency unless all of the following conditions are met: (i) ▇▇▇▇▇’s board of directors determines in writing that the D&O Indemnified Party acted in good faith and in the best interests of Grasshopper or Grasshopper Bank; (ii) ▇▇▇▇▇’s board of directors determines that the payment will not materially affect Enova’s safety and soundness; (iii) the payment does not fall within the definition of a prohibited indemnification payment under 12 C.F.R. Part 359; and (iv) the D&O Indemnified Party agrees in writing to reimburse Enova, to the extent not covered by permissible insurance, for payments made in the event that the administrative or civil action instituted by a banking Regulatory Authority results in a final Order or settlement in which the D&O Indemnified Party is assessed a civil money penalty, is prohibited from banking, or is required to cease an action or perform an affirmative action.
Appears in 2 contracts
Sources: Merger Agreement (Enova International, Inc.), Merger Agreement (Enova International, Inc.)
D&O Indemnification. (a) Without limiting any For a period of six (6) years after the Effective Time, Buyer shall indemnify, defend and hold harmless the present and former directors, officers and employees of the Seller Entities (each, an “Indemnified Party”) against all Liabilities arising out of actions or omissions arising out of the Indemnified Party’s service or services as directors, officers or employees of Seller or, at Seller’s request, of another corporation, partnership, joint venture, trust or other rights that any Indemnified Party may have pursuant enterprise occurring at or prior to any employment agreement or indemnification agreement the Effective Time (including the transactions contemplated by this Agreement) to the fullest extent permitted under the GBCC and by Seller’s Articles of Incorporation and Bylaws as in effect on the date hereof or otherwise, from and after the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenseshereof, including attorneys’ fees and disbursements, provisions relating to advances of expenses incurred in connection with the defense of any claimLitigation and whether or not any Buyer Entity is insured against any such matter. Without limiting the foregoing, Action or investigationin any case in which approval by the Surviving Company is required to effectuate any indemnification, whether civilthe Surviving Company shall direct, criminal, administrative or investigative, arising out at the election of or pertaining to the fact that the Indemnified Party is or was an officer or director that the determination of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at such approval shall be made by independent counsel mutually agreed upon between Buyer and the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at Indemnified Party.
(b) At or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses Buyer shall (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional Seller shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or cooperate prior to the Effective Time than in these efforts) purchase a non-rescindable extended reporting period for Seller’s existing directors’ and officers’ liability insurance policy with a duration of up to six (6) years after the Effective Time (provided, that Buyer may substitute therefore (i) policies of at least the same coverage and amounts containing terms and conditions which are set forth in substantially no less advantageous or (ii) with the articles consent of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At Seller given prior to the Effective Time, Regional any other policy) with respect to claims arising from facts or events which occurred prior to the Effective Time and covering persons who are currently covered by such insurance; provided, that Buyer shall purchase and cause not be obligated to be maintained a prepaid Reporting Tail Endorsement on its existing make aggregate annual premium payments for such six-year period in respect of such policy (or coverage replacing such policy) which exceed, for the portion related to Seller’s directors and officers liability insurance policy (providing only for officers, 300% of the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regionalannual premium payments on Seller’s insurance current policy in existence effect as of the date of this Agreement expires, is terminated (the “Maximum Amount”). If the amount of the premiums necessary to maintain or cancelled during procure such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed insurance coverage exceeds the Maximum PremiumAmount, then Regional Buyer shall obtain as much use its reasonable efforts to maintain the most advantageous policies of directors’ and officers’ liability insurance obtainable for a premium equal to the Maximum Amount.
(c) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 8.14, upon learning of any such Liability or coverage under a Reporting Tail EndorsementLitigation, shall promptly notify Buyer thereof; provided, that failure to provide such notice shall not relieve Buyer of its obligations pursuant to this Section unless such failure materially prejudices Buyer. In the event of any such Litigation (whether arising before or after the Effective Time), (i) as can Buyer shall have the right to assume the defense thereof and Buyer shall not be obtained liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Buyer elects not to assume such defense or counsel for the remainder Indemnified Parties advises that there are substantive issues which raise conflicts of interest between Buyer and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Buyer shall pay all reasonable fees and expenses of such six-year period counsel for an annualized premium at or not the Indemnified Parties promptly as statements therefore are received; provided, that Buyer shall be obligated pursuant to this paragraph (c) to pay for only one firm of counsel for all Indemnified Parties in excess of any jurisdiction; (ii) the Maximum Premium, on terms and conditions of reasonable equivalence, Indemnified Parties will cooperate in the aggregatedefense of any such Litigation; and (iii) Buyer shall not be liable for any settlement effected without its prior written consent and which does not provide for a complete and irrevocable release of all Buyer’s Entities and their respective directors, officers and controlling persons, employees, agents and Representatives; and provided further, that Buyer shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall determine, and such determination shall have become final, that the SunLink indemnification of such Indemnified Parties under Party in the Current D&O Insurancemanner contemplated hereby is prohibited by applicable Law.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional Buyer or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any Person, then, then and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, Buyer shall expressly assume and succeed to the obligations set forth in this Section 5.88.14.
(e) The provisions of this Section 8.14 are intended to be for the benefit of and shall be enforceable by, each Indemnified Party and their respective heirs and legal and personal representatives.
Appears in 2 contracts
Sources: Merger Agreement (Charter Financial Corp), Merger Agreement (Charter Financial Corp)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through the six-year anniversary of the date on which the Effective Time occursTime, Regional Athena shall indemnify and hold harmless each Indemnified Party Person who at the Effective Time is a present or former director or officer of any Newco Company (each a “D&O Indemnitee”) against all claimsany costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, liabilitiesclaims, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, damages or liabilities incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or a D&O Indemnitee was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred a Newco Company at or prior to the Effective Time, in each case, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink Everest or any of its Subsidiaries (including the Newco Companies), as the case may be, would have been permitted under the applicable Legal Requirements to do so indemnify such Person (including promptly advancing expenses as incurred to the fullest extent permitted under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable LawLegal Requirements).
(b) From Notwithstanding anything contained in this Agreement to the Effective Time through contrary, this Section 5.15(b) shall survive the six-year anniversary consummation of the date transactions contemplated hereby and shall be binding, jointly and severally, on which all successors and assigns of Athena and Newco and are intended to be for the Effective Time occurs, the articles of incorporation and bylaws of Regional shall containbenefit of, and Regional shall cause its articles of incorporation and bylaws to so containwill be enforceable by, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of each present and former directors director and officers officer of SunLink any Newco Company and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) heirs and representatives. In the event Regional that Athena or Newco or any of its their respective successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in of Athena or Newco, as the case of a transfer of all or substantially all of the properties and assets) of Regionalmay be, shall expressly assume and succeed to the obligations set forth in this Section 5.85.15(b).
(c) Athena acknowledges that the D&O Indemnitees may have certain rights to indemnification, insurance and/or advancement of expenses from other Persons (directly or by insurance retained by such Person) (the “Other Indemnitors”). Athena hereby agrees and acknowledges that (i) it is the indemnitor of first resort with respect to the D&O Indemnitees, (ii) it shall be required to advance the full amount of expenses incurred by the D&O Indemnitees, as required by the terms of this Agreement, without regard to any rights the D&O Indemnitees may have against the Other Indemnitors and (iii) it irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims against the Other Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. Athena further agrees that no advancement or payment by the Other Indemnitors on behalf of Everest or any of its Subsidiaries with respect to any claim for which the D&O Indemnitees have sought indemnification from such Entities shall affect the foregoing and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the D&O Indemnitees against Everest or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Ecolab Inc.), Merger Agreement (Apergy Corp)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through Closing, Buyer shall, and shall cause the six-year anniversary of the date on which the Effective Time occursSale Entities to, Regional shall indemnify (i) indemnify, defend and hold harmless each Indemnified Party current and former director, officer and employee of the Sale Entities and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the request or for the benefit of any Sale Entity (each, an “Indemnitee” and, collectively, the “Indemnitees”) against all claims, liabilities, losses, liabilities, damages, judgments, fines and reasonable feesfines, penalties, costs (including amounts paid in settlement or compromise) and expenses, expenses (including attorneys’ fees and disbursements, incurred expenses of legal counsel) in connection with any actual or threatened claim, Action suit, action, proceeding or investigation, investigation (whether civil, criminal, administrative or investigative) (each, a “Claim”), whenever asserted, arising out of of, relating to or pertaining in connection with any action or omission relating to the fact that the Indemnified Party is or was an officer or director of SunLink or their position with any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions Sale Entity occurring or alleged to have occurred at before or prior on the Closing Date (including any Claim relating in whole or in part to this Agreement or the Effective TimeContemplated Transactions), whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled Law and (ii) assume all obligations of Sellers and the Sale Entities to the Indemnitees in respect of limitation of liability, exculpation, indemnification and advancement of reasonable expenses as provided in (including reasonable attorneys’ feesA) incurred the respective Organizational Documents of each of the Sale Entities as currently in effect and (B) any indemnification agreements with an Indemnitee, which shall in each case survive the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, Contemplated Transactions and continue in full force and effect to the extent required permitted by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From For a period of six (6) years after the Effective Time through the six-year anniversary of the date on which the Effective Time occursClosing, the articles of incorporation and bylaws of Regional Buyer shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for in effect the Side A coverage where provided by the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (and fiduciary liability insurance in effect as of the Effective Date maintained by the Reporting Company with respect to matters arising on or coverage under a before the Closing Date either through the Reporting Tail Endorsement) as can Company’s existing insurance provider or another provider reasonably selected by Buyer; provided, however, that, after the Closing, Buyer shall not be obtained for the remainder of such six-year period for an annualized premium at or not required to pay annual premiums in excess of 300% of the Maximum Premiumannual premium currently paid by the Reporting Company in respect of the coverage required to be obtained pursuant hereto, on terms and conditions but in such case shall purchase as much coverage as reasonably practicable for such amount; provided, further, that in lieu of reasonable equivalencethe foregoing insurance coverage, Buyer may purchase “tail” insurance coverage, at a cost no greater than the aggregate amount which Buyer would be required to spend during the six–year period provided for in this Section 5.11(b), that provides coverage not materially less favorable than the aggregate, coverage described above to the SunLink Indemnified Parties insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Reporting Company as of the date hereof with respect to matters arising on or before the Closing.
(c) The provisions of this Section 5.11 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives from and after the Closing, and (ii) in addition to, and not in substitution for or limitation of, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. The obligations of Buyer and the Sale Entities under this Section 5.11 shall not be terminated or modified in such a manner as to adversely affect the Current D&O Insurancerights of any Indemnitee to whom this Section 5.11 applies unless (A) such termination or modification is required by applicable Law or (B) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 5.11 applies shall be third party beneficiaries of this Section 5.11).
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional that Buyer or the Reporting Company or any of its their respective successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall is 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, then, and in each such case, proper provision shall be made so that the successors and assigns (in of Buyer and the case of a transfer of all or substantially Reporting Company shall assume all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations thereof set forth in this Section 5.85.11.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Berkshire Hathaway Energy Co), Purchase and Sale Agreement (Dominion Energy, Inc)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and For a period of 6 years after the Effective Time through Closing Date (and such additional period of time as may be necessary to fully and finally resolve any claims for indemnification which have been duly submitted prior to the six-6 year anniversary of the date on which Closing Date), unless otherwise required by Applicable Law, Buyer shall not, and shall cause the Effective Time occursCompany not to, Regional shall indemnify and hold harmless each Indemnified Party against all claimsamend, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred repeal or modify any provision in connection with the Organizational Documents or any claim, Action or investigation, whether civil, criminal, administrative or investigative, arising out resolution of or pertaining the Board of Directors of the Company relating to the fact that the Indemnified Party is limitation, waiver or was an officer disclaimer of fiduciary duty or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, exculpation or advancement of expenses and exculpation of present and former directors and directors, managers, officers or employees of SunLink and its Subsidiaries the Company or Seller or any of their respective predecessors (collectively, the “D&O Indemnified Parties”), in respect of acts or omissions occurring or alleged to have occurred at or prior their capacities as such, in any manner that would result in such provisions being less favorable to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink D&O Indemnified Parties as in effect on the date hereof.
(b) The obligations under this Section 10.05 are intended to be for the benefit of each D&O Indemnified Party and such D&O Indemnified Party’s respective estate, heirs and representatives and this Section 10.05 shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party or such D&O Indemnified Party’s respective estate, heirs and representatives without the consent of such D&O Indemnified Party. It is expressly agreed that the D&O Indemnified Parties and such D&O Indemnified Party’s respective estate, heirs and representatives are third party beneficiaries of this AgreementSection 10.05 and entitled to enforce the covenants contained herein. Nothing herein shall affect any indemnification rights that any D&O Indemnified Party or such D&O Indemnified Party’s respective estate, heirs and Representatives may have under the organizational documents of the Company or any Law.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional that, following the Closing, the Company or Buyer or any of its their respective successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in of the Company or Buyer, as the case of a transfer of all or substantially all of the properties and assets) of Regionalmay be, shall expressly assume and succeed to the obligations set forth in this Section 5.810.05.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Primis Financial Corp.), Stock Purchase Agreement (Primis Financial Corp.)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through Closing Date until six (6) years from the six-year anniversary Closing Date, Buyer shall or shall cause the Transferred Subsidiaries (as applicable) to indemnify, defend and hold harmless to the fullest extent permitted under Law and the Organizational Documents of the Transferred Subsidiaries as of the date hereof, the individuals who on which the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining prior to the fact that Closing Date were directors, officers, trustees, members, managers or employees (each, a “D&O Indemnified Person”) of the Indemnified Party is Transferred Subsidiaries (as applicable) with respect to all acts or was an officer omissions by them in their capacities as such or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving taken at the request of SunLink or one of its the Transferred Subsidiaries as an officer, director, manager, employee or agent of another Person(if applicable), in respect of acts or omissions occurring or alleged each case, to have occurred the extent related to the Business at any time on or prior to the Effective TimeClosing Date. In addition, whether asserted Buyer shall or claimed prior to, at shall cause the Transferred Subsidiaries (as applicable) to pay or after the Effective Time, in each case reimburse any expenses of any D&O Indemnified Persons entitled to indemnification hereunder as incurred to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement Law and the Organizational Documents of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense Transferred Subsidiaries as of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefordate hereof; provided that any the D&O Indemnified Party Person to whom expenses are to be advanced provides prior an undertaking to any receipt of repay such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) . If any D&O Indemnified Party Person makes any claim for indemnification or advancement of expenses under this Section 5.8 4.7 that is denied by Regionalany of the Transferred Subsidiaries, and a court of competent jurisdiction determines that the D&O Indemnified Party Person is entitled to such indemnification or advancement of expensesindemnification, then Regional Buyer shall, and shall cause the Transferred Subsidiaries (as applicable) to, pay the such D&O Indemnified PartyPerson’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to such claim against the fullest extent permitted by lawTransferred Subsidiaries (as applicable).
(eb) In The certificates of incorporation, by-laws and all other organization documents of the Transferred Subsidiaries shall not be amended, repealed or otherwise modified for a period of six (6) years from the Closing Date in any manner that would adversely affect the rights thereunder of individuals who at or at any time prior to the Closing Date were D&O Indemnified Persons of the Transferred Subsidiaries. The rights of the D&O Indemnified Persons under this Section 4.7 shall be in addition to any rights such D&O Indemnified Persons may have under the certificates of incorporation, by-laws and all other organization documents of the Transferred Subsidiaries, or under any applicable Law or under any Contract of any D&O Indemnified Person with any of the Transferred Subsidiaries.
(c) Buyer shall obtain, at Buyer’s sole cost and expense, with effect from the Closing Date and shall maintain in effect for six (6) years after the Closing Date a “run-off” or “tail” directors’ and officers’ liability insurance policy to the current policy (the “D&O Tail Policy”) for the Transferred Subsidiaries with respect to matters occurring prior to the Closing and having coverage limits in at least the same aggregate amount as provided in the current policy for such six (6)-year period and terms and conditions otherwise no less advantageous in the aggregate to the indemnitees than the terms and conditions of the current policy for the Transferred Subsidiaries; provided that in no event Regional shall Buyer be required to expend an aggregate premium amount in excess of 250% of the annual premium currently payable by the Transferred Subsidiaries with respect to such current policy.
(d) If after the Closing any of the Transferred Subsidiaries or Buyer or any of its their respective successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), shall (i) consolidates amalgamate, consolidate with or merges merge or wind-up into any other Person and and, if applicable, shall not be the continuing or surviving corporation or entity of such consolidation or mergerentity, or (ii) transfers transfer all or substantially all of its properties and assets to any PersonPerson or Persons, then, and in each such case, proper provision provisions shall be made so that the successors successors, assigns and assigns (in transferees of such Transferred Subsidiary or Buyer, as the case of a transfer of all or substantially may be, shall assume all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.84.7.
(e) The provisions of this Section 4.7 are intended to be for the benefit of, and shall be enforceable by, each D&O Indemnified Person entitled to indemnification under this Section 4.7, his or her heirs and his or her representatives and 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.
Appears in 2 contracts
Sources: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and after From the Effective Time through the six-year later of (i) the sixth anniversary of the date on which the Effective Time occursoccurs and (ii) the expiration of any statute of limitations applicable to any claim, Regional action, suit, proceeding or investigation referred to below, the Surviving Corporation shall indemnify and hold harmless each present and former director and officer of the Company, determined as of the Effective Time (the "Indemnified Party Parties"), against all any claims, losses, liabilities, damages, judgments, fines and reasonable fines, fees, costs and or expenses, including without limitation attorneys’ ' fees and disbursementsdisbursements (collectively, "Costs"), incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is matters existing or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective TimeTime (including, without limitation, the Merger, the preparation, filing and mailing of the Proxy Statement and the other transactions and actions contemplated by this Agreement), whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink the Company would have been permitted to do so permitted, under applicable Law. Each Indemnified Party will be entitled law, indemnification agreements existing on the date hereof, the Certificate of Incorporation or Bylaws of the Company in effect on the date hereof, to advancement of reasonable indemnify such Person (and the Surviving Corporation shall also advance expenses (including reasonable attorneys’ fees) as incurred in to the defense of any such claim, Action or investigation from Regional following receipt by Regional from fullest extent permitted under applicable law provided the Indemnified Party of a request therefor; provided that any Indemnified Party person to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, undertaking to repay such advances if it is ultimately determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party person is not entitled to indemnification under applicable Lawindemnification).
(b) From Any Indemnified Party wishing to claim indemnification under this Section 5.10, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability or obligation it may have to such Indemnified Party except, and only to the extent, that such failure materially prejudices the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time through the six-year anniversary of the date on which the Effective Time occursTime), the articles Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of incorporation other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues that raise conflicts of interest between the Surviving Corporation and bylaws of Regional shall containthe Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Regional the Surviving Corporation shall cause its articles pay all reasonable fees and expenses of incorporation and bylaws to so contain, provisions no less favorable such counsel for the Indemnified Parties promptly as statements therefor are received. If such indemnity is not available with respect to indemnificationany Indemnified Party, advancement then the Surviving Corporation and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits. In the event that any claim or claims are asserted
(c) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any present or former director or officer of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at the Company, on or prior to the Effective Time than are set forth in the articles sixth anniversary of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date provisions of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if Section 5.10 shall continue in effect until the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder final disposition of such six-year period for an annualized premium at claim, action, suit, proceeding or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insuranceinvestigation.
(d) If any Indemnified Party makes any claim This covenant is intended to be for indemnification or advancement of expenses under this Section 5.8 that is denied by Regionalthe benefit of, and a court shall be enforceable by, each of competent jurisdiction determines that the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled entitled, whether pursuant to such indemnification law, contract or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by lawotherwise.
(e) In To the event Regional or extent that the Surviving Corporation fails to perform any of its successors or assigns (in obligations pursuant to this Section 5.10, Parent shall assume the case of a transfer of all or substantially all of Regional’s properties obligations and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all rights of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in Surviving Corporation under this Section 5.85.10.
Appears in 2 contracts
Sources: Merger Agreement (Seneca West Corp), Merger Agreement (Harcor Energy Inc)
D&O Indemnification. (aA) Without limiting any other rights Acquiror agrees that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and for a period of six (6) years after the Effective Time through Closing (x) it will cause the six-year anniversary Surviving Entities and the Designated Subsidiaries to continue to indemnify and hold harmless, and to provide rights to the advancement of expenses to, in each case on terms at least as favorable as those in existence as of the date on which of this Agreement in their respective certificates of incorporation, certificates of formation, certificates of limited partnership, bylaws, limited liability company agreements, limited partnership agreements or other organizational documents, as applicable, each present and former director, officer or manager (or equivalent) (each, a “Covered Person”) of the Effective Time occurs, Regional shall indemnify Companies and hold harmless each Indemnified Party the Designated Subsidiaries against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigativeDamages, arising out of or pertaining to the fact that the Indemnified Party is matters arising, occurring or was an officer otherwise existing prior to or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective TimeClosing, whether asserted or claimed prior to, at or after the Effective TimeClosing and (y) it will not, and will not permit the Surviving Entities or Designated Subsidiaries to, amend, repeal or otherwise modify any organizational document providing such rights to any Covered Person in any manner that would adversely affect the rights of any such Covered Person thereunder following the Closing, unless the alteration or modification of such document is required by applicable Law or each case Covered Person affected thereby otherwise consents in writing thereto. Acquiror shall cause the Surviving Entities and the Designated Subsidiaries, as applicable, to the fullest extent that SunLink would have been permitted advance expenses to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred a Covered Person in the connection with such Covered Person’s defense of any such claim, Action action, suit, proceeding or investigation from Regional following receipt by Regional from the Indemnified Party of within thirty (30) days after receiving a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of for such advances an undertaking, to the extent required by the Act or other applicable Law, to repay advance from such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable LawCovered Person.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(eB) In the event Regional that Acquiror, any Surviving Entity or any Designated Subsidiary or any successor or assign of its successors or assigns (in the case any of a transfer of all or substantially all of Regional’s properties and assets), them (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity as a result of such consolidation or merger, merger or (ii) transfers all or substantially all of its properties and assets to any Person, thenAcquiror agrees to require, and in each cause the Surviving Entities and/or the Designated Subsidiaries, as applicable, to require, such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly Person to assume and succeed to the obligations set forth in this Section 5.85(b)(ii).
(C) This Section 5(b)(ii) shall survive the Closing and is intended to benefit the Covered Persons, each of whom is an expressly intended third-party beneficiary and may enforce the provisions of this Section 5(b)(ii) directly.
Appears in 1 contract
Sources: Merger Agreement (Ventas Inc)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through Closing, Purchaser shall cause the six-year anniversary of Company, to the date on which the Effective Time occursfullest extent permitted under applicable Law, Regional shall to indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink the Acquired Companies (each, an “Insured Party”) against all costs and its Subsidiaries expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in respect connection with any Action based on the fact that such individual is or was a director or officer of acts an Acquired Company and arising out of or omissions pertaining to any action or omission occurring or alleged to have occurred at or prior to the Effective Time than Closing Date (including the transactions contemplated by this Agreement and the Reorganization) (and shall pay any expenses in advance of the final disposition of such action or proceeding to each Insured Party to the fullest extent permitted under applicable Law, upon receipt from the Insured Party for whom expenses are paid of any undertaking to repay such amounts required under applicable Law). Any Insured Party wishing to claim indemnification under this Section 6.6, upon learning of any Action, shall promptly notify Purchaser thereof, but the failure to so notify shall not relieve the applicable Acquired Company of any liability it may have to such Insured Party, except to the extent such failure materially prejudices the indemnifying party. In the event of any such Action, (arising after the Closing Date), (i) Purchaser or the applicable Acquired Company shall have the right to assume the defense thereof, with counsel reasonably acceptable to the Insured Party (which acceptance shall not be unreasonably withheld, conditioned, or delayed), and Purchaser and the applicable Acquired Company shall not be liable to such Insured Party for any legal expenses of other counsel or any other expenses subsequently incurred by such Insured Party in connection with the defense thereof, except that, if Purchaser or the applicable Acquired Company elects not to assume such defense or if counsel for the Insured Party advises that there are issues that raise conflicts of interest between Purchaser or the Acquired Companies and the Insured Party, or between any Insured Parties, then the Insured Party may retain counsel satisfactory to it, and Purchaser or the applicable Acquired Company shall pay all reasonable fees and expenses of such counsel for the Insured Party promptly as statements therefor are received; provided, however, that Purchaser and the applicable Acquired Company shall be obligated pursuant to this Section 6.6 to pay for only one firm of counsel for all Insured Parties in any jurisdiction unless the use of one counsel for such Insured Parties would present such counsel with a conflict of interest; provided, further, that the fewest number of counsels necessary to avoid conflicts of interest shall be used; (ii) such Insured Party will cooperate in the defense of any such matter; and (iii) Purchaser and the applicable Acquired Company shall not be liable for any settlement effected without their prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and provided, further, that Purchaser and the Acquired Companies shall not have any obligation hereunder to any Insured Party if and to the extent that a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Insured Party in the manner contemplated hereby is prohibited by applicable Law. Purchaser and the Company hereby acknowledge that present and former directors and officers of the Insured Parties may have certain rights to indemnification, advancement of expenses and/or insurance. From and after the Closing, Purchaser and the Company hereby agree that they are the indemnitors of first resort (i.e., their obligations to the Insured Parties are primary and any obligation of any secondary indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the Insured Parties are secondary).
(b) Notwithstanding anything to the contrary set forth in this Agreement, the articles of incorporation and bylaws of SunLink as in effect Sellers shall maintain (or caused to be maintained) a “run-off” policy on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much current directors’ and officers’ liability insurance for coverage of the acts or omissions of such directors and officers occurring prior to the Closing Date (or the “Run-Off Policy”) for not less than six (6) years after the Closing Date. The Company shall cause the Acquired Companies and each of its Subsidiaries to refrain from taking any act that would cause such coverage under a Reporting Tail Endorsementto cease to remain in full force and effect.
(c) as can Each Insured Party to whom this Section 6.6 applies shall be obtained third party beneficiaries of this Section 6.6. The provisions of this Section 6.6 are intended to be for the remainder benefit of each Insured Party and his heirs. The obligations under this Section 6.6 shall not be terminated or modified in such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, a manner as to the SunLink Indemnified Parties under the Current D&O Insuranceadversely affect any such Insured Party without his written consent.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by RegionalAfter the Closing Date, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional Purchaser or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), Acquired Company (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns (in of Purchaser or the case Company or any of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly their respective Subsidiaries assume and succeed to the obligations set forth in this Section 5.86.6.
Appears in 1 contract
Sources: Securities Purchase Agreement (Builders FirstSource, Inc.)
D&O Indemnification. (a) Without limiting Prior to the Effective Time, the Company shall purchase an endorsement under the Company’s existing directors’ and officers’ liability insurance coverage (the “D&O Tail Policy”) for the Acquired Companies’ directors and officers in a form acceptable to Parent, which shall provide such directors and officers with coverage for six years following the Effective Time and shall have a scope substantially similar to the existing coverage under, and have other terms not materially less favorable to the insured persons than the terms of, the directors’ and officers’ liability insurance coverage currently maintained by the Company. From and after the Closing, Parent shall cause the Surviving Company to continue to honor its obligations under any other rights that any Indemnified Party may have such D&O Tail Policy procured pursuant to this Section 5.11, and shall cause the Surviving Company to not cancel (or permit to be canceled) or take (or cause to be taken) any employment agreement action or indemnification agreement omission that would reasonably be expected to result in effect the cancellation thereof.
(b) Parent hereby acknowledges, and shall cause the Surviving Company to comply with, the Surviving Company’s obligations pursuant to (i) the LLC Agreement, the Buildium Employee LLC Agreement and the Buildium Agency LLC Agreement, respectively, to indemnify and hold harmless each present and former director, manager and officer of the Acquired Companies as of the Effective Time arising out of their activities on behalf of the date hereof Acquired Companies or otherwisein furtherance of the interests of the Acquired Companies in accordance with the terms of the LLC Agreement, the Buildium Employee LLC Agreement, and the Buildium Agency LLC Agreement, respectively, and (ii) the LLC Act (the “D&O Indemnification Obligations”). Parent acknowledges that the D&O Indemnification Obligations shall continue from and after the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts actions existing or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by lawunder applicable Legal Requirements.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.8.
Appears in 1 contract
Sources: Merger Agreement (RealPage, Inc.)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and after From the Effective Time through the six-year sixth (6th) anniversary of the date on which the Effective Time occurs, Regional shall each of Public Company and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless each 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 or officer of Merger Partner, Public Company or any of their respective Subsidiaries (the “Indemnified Party Persons”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including reasonable and documented attorneys’ fees and disbursements, incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party Person is or was an officer officer, director, employee or director agent of SunLink Merger Partner, Public Company or any of its Subsidiaries serving at any time their respective Subsidiaries, or, while a director or officer of SunLink Merger Partner, Public Company or any of its their respective Subsidiaries, is or was serving at the request of SunLink Merger Partner, Public Company or one any of its their respective Subsidiaries as an officer, a director, managerofficer, employee or agent of another Person, whether asserted or claimed prior to, at or after the Effective Time, to the extent permitted under the applicable certificate or articles of incorporation and bylaws. Each Indemnified Person will be entitled to advancement of expenses (including reasonable and documented attorneys’ fees) incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Public Company and the Surviving Corporation following receipt by Public Company or the Surviving Corporation from the Indemnified Persons of a request therefor; provided, that any Person to whom expenses are advanced provides an undertaking, to the extent then required by the DGCL or the NRS, as applicable, to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, the certificate of incorporation and bylaws of the Surviving Corporation will contain provisions at least as favorable as the provisions relating to the indemnification, advance of expenses and elimination of liability for monetary damages set forth in the certificate or articles of incorporation and bylaws of Merger Partner and Public Company immediately prior to the Effective Time.
(b) Prior to the Effective Time, Public Company shall determine in good faith to either (i) continue to maintain in effect for six (6) years after the Effective Time, the Public Company’s directors’ and officers’ insurance policies and fiduciary liability insurance policies in place as of the date hereof or (ii) purchase a six (6)-year prepaid “D&O tail policy” for the non-cancellable extension of the directors’ and officers’ liability coverage of Public Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under Public Company’s existing policies as of the date of this Agreement with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Pubic Company by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Merger).
(c) Prior to the Effective Time, Merger Partner shall determine in good faith to either (i) continue to maintain in effect for six (6) years after the Effective Time, the Merger Partner’s or its Affiliates’ directors’ and officers’ insurance policies and fiduciary liability insurance policies in place as of the date hereof or (ii) purchase a six (6)-year prepaid “D&O tail policy” for the non-cancellable extension of the directors’ and officers’ liability coverage of Merger Partner’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under M▇▇▇▇▇ Partner’s existing policies as of the date of this Agreement with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Merger Partner by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Merger).
(d) Public Company shall pay all expenses, including reasonable and documented attorneys’ fees, that may be incurred by a Person in successfully enforcing such Person’s rights provided in this Section 6.9.
(e) Public Company and Merger Partner agree that all rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in each favor of the current or former directors, officers or employees, as the case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement may be, of reasonable expenses (including reasonable attorneys’ fees) incurred Public Company, Merger Partner or any of their respective Subsidiaries as provided in the defense their respective certificates of any such claim, Action incorporation or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act bylaws or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries organization documents or in respect of acts or omissions occurring or alleged to have occurred at or any agreement in existence immediately prior to the Effective Time than are set forth in shall survive the articles of incorporation Merger and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement continue in full force and effect effect. The provisions of this Section 6.9 are intended to be in addition to the rights otherwise available to the current officers and directors of Public Company, Merger Partner or any of their respective Subsidiaries by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the Indemnified Persons, their heirs and their representatives. The obligations set forth in this Section 6.9 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person, or any Person who is a term beneficiary under the policies referred to in this Section 6.9 and their heirs and representatives, without the prior written consent of six years from and after such affected Indemnified Person or other Person.
(f) If the Effective Time, provided that in case that Surviving Corporation or Public Company or any of their respective successors or assigns shall (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns (in the case of a transfer of all or substantially such Person shall assume all of the properties and assets) obligations of Regional, shall expressly assume and succeed to the obligations such Person set forth in this Section 5.86.9.
(g) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Merger Partner, Public Company or any of their respective Subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.9 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Channel Therapeutics Corp)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and after Following the Effective Time through Time, FSK shall, to the six-year anniversary of the date on which the Effective Time occursfullest extent permitted under applicable Law, Regional shall indemnify indemnify, defend and hold harmless and advance expenses to the present and former directors and officers of FSKR or any of its Consolidated Subsidiaries (in each case, when acting in such capacity) (each, an “Indemnified Party Party” and collectively, the “Indemnified Parties”) against all claimscosts or expenses (including, but not limited to, reasonable attorneys’ fees actually incurred, reasonable experts’ fees, reasonable travel expenses, court costs, transcript fees and telecommunications, postage and courier charges), judgments, fines, losses, liabilitiesclaims, damages, judgmentspenalties, fines and reasonable feesamounts paid in settlement or other liabilities (collectively, costs and expenses, including attorneys’ fees and disbursements, “Indemnified Liabilities”) incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, Proceeding arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts actions or omissions occurring or alleged to have occurred at or prior to the Effective TimeTime (including the Transactions). In the event of any such Indemnified Liabilities, whether asserted or claimed prior to(i) FSK shall advance to such Indemnified Party, at or after the Effective Timeupon request, in each case reimbursement of documented expenses reasonably and actually incurred to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; Law provided that any Indemnified Party the Person to whom expenses are to be advanced advanced, or someone on his or her behalf, provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, undertaking to repay such advances if it is ultimately determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party Person is not entitled to indemnification and complies with other applicable provisions imposed under the Investment Company Act and interpretations thereof by the SEC or its staff and (ii) FSK and the applicable LawIndemnified Parties shall cooperate in the defense of such matter.
(b) From Any Indemnified Party wishing to claim indemnification under Section 7.5(a), upon learning of any Proceeding described above, shall promptly notify FSK in writing; provided, that the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws failure to so contain, provisions no less favorable with respect to indemnification, advancement notify shall not affect the obligations of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink FSK under Section 7.5(a) unless FSK is materially prejudiced as in effect on the date of this Agreementa consequence.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional FSK or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person entity and shall is not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers all or substantially all of its properties and assets to any Personother entity, then, then and in each such case, FSK shall cause proper provision shall to be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, FSK shall expressly assume and succeed to the obligations set forth in this Section 5.87.5.
(d) The provisions of this Section 7.5 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives and (ii) 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.
Appears in 1 contract
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through Closing, Buyer shall, and shall cause the six-year anniversary of the date on which the Effective Time occursSale Entities to, Regional shall indemnify (i) indemnify, defend and hold harmless each Indemnified Party current and former director, officer and employee of the Sale Entities and each person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise if such service was at the request or for the benefit of any Sale Entity (each, an “Indemnitee” and, collectively, the “Indemnitees”) against all claims, liabilities, losses, liabilities, damages, judgments, fines and reasonable feesfines, penalties, costs (including amounts paid in settlement or compromise) and expenses, expenses (including attorneys’ fees and disbursements, incurred expenses of legal counsel) in connection with any actual or threatened claim, Action suit, action, proceeding or investigation, investigation (whether civil, criminal, administrative or investigative) (each, a “Claim”), whenever asserted, arising out of of, relating to or pertaining in connection with any action or omission relating to the fact that the Indemnified Party is or was an officer or director of SunLink or their position with any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions Sale Entity occurring or alleged to have occurred at before or on the Closing Date (including any Claim relating in whole or in part to this Agreement or the Contemplated Transactions), to the same extent such indemnitees were indemnified by Seller or the Sale Entities prior to the Effective Time, whether asserted or claimed Date pursuant to (A) the respective Organizational Documents of each of the Sale Entities then in effect and (B) any indemnification agreements with an Indemnitee disclosed to and made available to Buyer prior to, at or after to the Effective TimeDate, which shall in each case to survive the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred Contemplated Transactions and continue in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, full force and effect to the extent required permitted by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From The provisions of this Section 5.11 (i) will survive the Effective Time through Closing Date until the six-year anniversary of the date on which Closing Date and (ii) are intended to be for the Effective Time occurs, the articles of incorporation and bylaws of Regional shall containbenefit of, and Regional shall cause its articles of incorporation be enforceable by, each Indemnitee, his or her heirs and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts his or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years her representatives from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as Closing. The obligations of Buyer and the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses Sale Entities under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and 5.11 shall not be terminated or modified in such a manner as to adversely affect the continuing rights of any Indemnitee to whom this Section 5.11 applies unless (A) such termination or surviving corporation or entity of such consolidation or merger, modification is required by applicable Law or (iiB) transfers all the affected Indemnitee shall have consented in writing to such termination or substantially all of its properties and assets modification (it being expressly agreed that the Indemnitees to any Person, then, and in each such case, proper provision whom this Section 5.11 applies shall be made so that the successors and assigns (in the case third party beneficiaries of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.85.11).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Southwest Gas Holdings, Inc.)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on From the date hereof or otherwise, from and after the Effective Time Closing through the six-year sixth (6th) anniversary of the date on which the Effective Time Closing Date occurs, Regional Public Company shall indemnify and hold harmless each Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, manager or officer of Merger Partner, Public Company or any of their respective Subsidiaries (the “Indemnified Party Persons”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party Person is or was an officer officer, director, manager, employee, trustee, fiduciary or director agent of SunLink Merger Partner, Public Company or any of its Subsidiaries serving at any time their respective Subsidiaries, or, while a director director, manager or officer of SunLink Merger Partner, Public Company or any of its their respective Subsidiaries, is or was serving at the request of SunLink Merger Partner, Public Company or one any of its their respective Subsidiaries as an officer, a director, manager, officer, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective TimeClosing, in each case to the fullest extent that SunLink would have been permitted to do so under the applicable Lawcertificate of incorporation and bylaws or other organizational document. Each Indemnified Party Person will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action action, suit, proceeding or investigation from Regional Public Company following receipt by Regional Public Company from the Indemnified Party of a request therefor; provided that any Indemnified Party Person to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent then required by the Act or other applicable Delaware Law, to repay such advances if it is ultimately determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party Person is not entitled to indemnification under applicable Lawindemnification. From the Closing through the sixth anniversary of the Closing Date, the certificate of incorporation and bylaws of Public Company will contain provisions at least as favorable as the provisions relating to the indemnification, advance of expenses and elimination of liability for monetary damages set forth in the certificate of incorporation and bylaws of Public Company immediately prior to the Closing.
(b) From Prior to the Closing, Public Company shall purchase a six-year prepaid “D&O tail policy” (the “Public Company Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Public Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six years from and after the Closing with respect to any claim related to any period of time at or prior to the Merger Partner Merger Effective Time with terms, conditions, retentions and limits of liability to be mutually agreed by Public Company and ▇▇▇▇▇▇ Partner prior to the Closing (which approval will not be unreasonably withheld, conditioned or delayed), but that are no more favorable than the coverage provided under Public Company’s existing policies as of the date of this Agreement with respect to coverage of any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Public Company by reason of him or her serving in such capacity that existed or occurred at or prior to the Closing (including in connection with this Agreement or the Mergers).
(c) Prior to the Closing, Merger Partner shall purchase a six-year prepaid “D&O tail policy” (the “Merger Partner Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Merger Partner’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six years from and after the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement any claim related to any period of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred time at or prior to the Effective Time with terms, conditions, retentions and limits of liability that are no less favorable than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the provided under ▇▇▇▇▇▇ Partner’s existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expireswith respect to any actual or alleged error, is terminated misstatement, misleading statement, act, omission, neglect, breach of duty or cancelled during any matter claimed against a manager, director or officer of Merger Partner by reason of him or her serving in such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (capacity that existed or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium occurred at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, prior to the SunLink Indemnified Parties under Closing (including in connection with this Agreement or the Current D&O InsuranceMerger.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional Public Company shall pay the Indemnified Party’s costs and all expenses, including reasonable legal fees and expensesattorneys’ fees, that may be incurred by the Indemnified Party a Person in connection with pursuing his or her claims to the fullest extent permitted by lawsuccessfully enforcing such Person’s rights provided in this Section 7.2.
(e) In Public Company and Merger Partner agree that all rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the event Regional Closing, whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, managers, officers or employees, as the case may be, of Public Company, Merger Partner or any of their respective Subsidiaries as provided in their respective certificates of incorporation or bylaws or other organization documents or in any agreement in existence immediately prior to the Closing shall survive the Mergers and shall continue in full force and effect. The provisions of this Section 7.2 are intended to be in addition to the rights otherwise available to the current officers, managers and directors of Public Company, Merger Partner or any of their respective Subsidiaries by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the Indemnified Persons, their heirs and their representatives. The obligations set forth in this Section 7.2 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person, or any Person who is a beneficiary under the policies referred to in this Section 7.2 and their heirs and representatives, without the prior written consent of such affected Indemnified Person or other Person.
(f) If Public Company or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), shall (i) consolidates consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision provisions shall be made so that the successors and assigns (in the case of a transfer of all or substantially such Person shall assume all of the properties and assets) obligations of Regional, shall expressly assume and succeed to the obligations such Person set forth in this Section 5.87.2.
(g) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Merger Partner, Public Company or any of their respective Subsidiaries for any of their respective directors, managers, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 7.2 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Sources: Merger Agreement (Calyxt, Inc.)
D&O Indemnification. (a) Without limiting Buyer shall indemnify, defend and hold harmless the present and former directors, officers and employees of the Seller Entities (each, an “Indemnified Party”) against all Liabilities arising from any other rights actions, claims or matters first brought or made within six (6) years after the Effective Time (and for so long thereafter as any such actions, claims or matters remain active or in existence) that any Indemnified Party may have pursuant relate to any employment agreement actual or indemnification agreement alleged actions, errors or omissions arising out of or related to the Indemnified Party’s position, service or services as directors, officers or employees of any Seller Entities or, at Seller’s request, of another corporation, partnership, joint venture, trust or other enterprise, occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement) to the fullest extent permitted under the WBCL and by any Seller Entity’s Articles of Incorporation and Bylaws as in effect on the date hereof or otherwise, from and after the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenseshereof, including attorneys’ fees and disbursements, provisions relating to advances of expenses incurred in connection with the defense of any claimLitigation and whether or not any Buyer Entity is insured against any such matter. Without limiting the foregoing, Action or investigationin any case in which approval by the Surviving Company is required to effectuate any indemnification, whether civilthe Surviving Company shall direct, criminal, administrative or investigative, arising out at the election of or pertaining to the fact that the Indemnified Party is or was an officer or director that the determination of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at such approval shall be made by independent counsel mutually agreed upon between Buyer and the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at Indemnified Party.
(b) At or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses Buyer shall (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional Seller shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or cooperate prior to the Effective Time than are set forth in these efforts) purchase a non-rescindable extended reporting period for Seller’s existing primary and excess directors and officers and fiduciary liability insurance coverage with a duration of (6) years after the articles Effective Time (provided, that Buyer may, with the written consent of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At Seller prior to the Effective Time, Regional shall purchase and cause substitute therefore any other policy or policies) with respect to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties claims arising from an insurance carrier with the same of better credit rating as compared wrongful acts, facts or events which occurred prior to the carrier Effective Time and covering persons who are currently covered by such insurance; provided, that Buyer shall not be obligated to make aggregate annual premium payments for such six-year period in respect of such insurance coverage (or any replacement coverage) which exceed 200% of the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regionalannual premium payments on Seller’s insurance current policy in existence effect as of the date of this Agreement expires(the “Maximum Amount”). If the amount of the premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, is terminated Buyer shall use its reasonable efforts to maintain the most advantageous policies of directors and officers and fiduciary liability insurance obtainable for a premium equal to the Maximum Amount. For the avoidance of doubt, Buyer shall be responsible for any and all amounts that the applicable Indemnified Party would otherwise incur due to the application of any deductible or cancelled during retention amount in connection with such six-year period directors and officers and fiduciary liability insurance.
(c) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 8.12, upon learning of any such Liability or Litigation, shall promptly notify Buyer thereof; provided, that failure to provide such notice shall not relieve Buyer of its obligations pursuant to this Section except to the extent such failure materially prejudices Buyer. In the event of any such Litigation (whether arising before or after the Effective Time), (i) Buyer shall have the right to assume the defense thereof and Buyer shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Buyer elects not to assume such defense or counsel for the Indemnified Parties advises that there are substantive issues which raise conflicts of interest between Buyer and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and Buyer shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefore are received; provided, that Buyer shall be obligated pursuant to this paragraph (c) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction; (ii) the Indemnified Parties will cooperate in the defense of any such Litigation; and (iii) Buyer shall not be liable for any settlement effected without its prior written consent and which does not provide for a complete and irrevocable release of all Buyer’s Entities and their respective directors, officers and controlling persons, employees, agents and Representatives; and provided further, that Buyer shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall determine, and such determination shall have become final, that the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder indemnification of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, Indemnified Party in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurancemanner contemplated hereby is prohibited by applicable Law.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional Buyer or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates shall consolidate with or merges merge into any other Person and shall not be the continuing or surviving corporation or entity Person of such consolidation or merger, merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any Person, then, then and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, Buyer shall expressly assume and succeed to the obligations set forth in this Section 5.88.12.
(e) The provisions of this Section 8.12 are intended to be for the benefit of and shall be enforceable by, each Indemnified Party and their respective heirs and legal and personal representatives.
Appears in 1 contract
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and after From the Effective Time through the six-year later of (i) the sixth anniversary of the date on which the Effective Time occursoccurs and (ii) the expiration of any statute of limitations applicable to any claim, Regional action, suit, proceeding or investigation referred to below, the Surviving Corporation shall indemnify and hold harmless each Indemnified Party present and former director and officer of the Company and its Subsidiaries, determined as of the Effective Time (the "INDEMNIFIED PARTIES"), against all any claims, losses, liabilities, damages, judgments, fines and reasonable fines, fees, costs and or expenses, including without limitation attorneys’ ' fees and disbursementsdisbursements (collectively, "COSTS"), incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is matters existing or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective TimeTime (including, without limitation, the Merger, the preparation, filing and mailing of the Proxy Statement and the other transactions and actions contemplated by this Agreement), whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink the Company or such subsidiary would have been permitted to do so permitted, under applicable Law. Each Indemnified Party will be entitled law, indemnification agreements existing on the date hereof, the Certificate of Incorporation or Bylaws of the Company or such subsidiary in effect on the date hereof, to advancement of reasonable indemnify such Person (and the Surviving Corporation shall also advance expenses (including reasonable attorneys’ fees) as incurred in to the defense of any such claim, Action or investigation from Regional following receipt by Regional from fullest extent permitted under applicable law provided the Indemnified Party of a request therefor; provided that any Indemnified Party person to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, undertaking to repay such advances if it is ultimately determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party person is not entitled to indemnification under applicable Lawindemnification).
(b) From Any Indemnified Party wishing to claim indemnification under this Section 5.10, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability or obligation it may have to such Indemnified Party except, and only to PAGE the extent, that such failure materially prejudices the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time through Time), the Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues that raise conflicts of interest between the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received. If such indemnity is not available with respect to any Indemnified Party, then the Surviving Corporation and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits. In the event that any claim or claims are asserted or made within the aforesaid six-year anniversary of the date on which the Effective Time occursperiod, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws all rights to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries indemnification in respect of acts any such claim or omissions occurring or alleged to have occurred at or prior to claims shall continue until the Effective Time than are set forth in the articles final disposition of incorporation any and bylaws of SunLink as in effect on the date of this Agreementall such claims.
(c) At Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any present or former director or officer of the Company, on or prior to the sixth anniversary of the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date provisions of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if Section 5.10 shall continue in effect until the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder final disposition of such six-year period for an annualized premium at claim, action, suit, proceeding or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insuranceinvestigation.
(d) If any Indemnified Party makes any claim This covenant is intended to be for indemnification or advancement of expenses under this Section 5.8 that is denied by Regionalthe benefit of, and a court shall be enforceable by, each of competent jurisdiction determines that the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled entitled, whether pursuant to such indemnification law, contract or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by lawotherwise.
(e) In To the event Regional or extent that the Surviving Corporation fails to perform any of its successors or assigns (in obligations pursuant to this Section 5.10, Parent shall assume the case of a transfer of all or substantially all of Regional’s properties obligations and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all rights of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in Surviving Corporation under this Section 5.85.10.
Appears in 1 contract
Sources: Merger Agreement (Pacific Rehabilitation & Sports Medicine Inc)
D&O Indemnification. (a) Without limiting The parties hereto agree that all rights to indemnification, advancement of expenses and exculpation from liability for or in connection with acts or omissions occurring at any time prior to or on the Closing Date (including in connection with this Agreement and the transactions contemplated hereunder) that now exist in favor of any Person who prior to or on the Closing Date is or was a current or former director, manager, officer or employee of a Transferred Subsidiary, or who at the request of Seller or any of its Affiliates served prior to or on the Closing Date in connection with the Business as a director, officer, member, manager, employee, trustee or fiduciary of any other rights that entity of any type (each, a “D&O Indemnified Party may have pursuant to Person”), including as provided in the Transferred Subsidiary Organizational Documents, or in any employment agreement or indemnification agreement Contract between a D&O Indemnified Person and a Transferred Subsidiary (an “Indemnity Agreement”), will survive the Closing and will continue in full force and effect on for six years following the date hereof or otherwiseClosing Date. In furtherance of the foregoing, from and after the Effective Time through for the six-year anniversary period following the Closing Date, Buyer will cause each of the date on which the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Transferred Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in and each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which Transferred Subsidiaries shall, (i) maintain in its respective Transferred Subsidiary Organizational Documents of each of the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, Transferred Subsidiaries provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries from liability that in each such respect of acts or omissions occurring or alleged are at least as favorable to have occurred at or prior to the Effective Time than are set forth each D&O Indemnified Person as those contained in the articles of incorporation and bylaws of SunLink such Transferred Subsidiary’s respective Transferred Subsidiary Organizational Documents, as applicable, as in effect on the date Execution Date, which provisions will not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink any D&O Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period Person and (ii) if continue each Indemnity Agreement without termination, revocation, amendment or other modification that would adversely affect the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder rights thereunder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink any D&O Indemnified Parties under the Current D&O InsurancePerson.
(db) If Buyer or any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
Transferred Subsidiary (e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), assigns) (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Personother Person (including by dissolution, liquidation, assignment for the benefit of creditors or similar action), then, and in each such case, Buyer or such Transferred Subsidiary (as applicable) will use commercially reasonable efforts to negotiate proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly assume and succeed to such other Person fully assumes the obligations set forth in this Section 5.85.24.
(c) Prior to Closing, Seller shall cause the Transferred Subsidiaries to obtain, at Buyer’s expense, with effect from the Closing Date, and, following the Closing, Buyer shall cause the applicable Transferred Subsidiary to maintain in effect for six years after the Closing Date, a “run-off” or “tail” directors’ and officers’ liability insurance policy to the current policy for such Transferred Subsidiary with respect to matters occurring prior to the Closing, with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as such Transferred Subsidiary’s existing policy with respect to matters existing or occurring at or prior to the Closing (including in connection with the Transaction) so long as the aggregate cost for such “run-off” or “tail” policy does not exceed 300% of the amount paid by Seller for such coverage for its last full fiscal year.
(d) The provisions of this Section 5.24 will survive the Closing. This Section 5.24 will be for the irrevocable benefit of, and will be enforceable by, each D&O Indemnified Person and his or her respective heirs, executors, administrators, estates, successors and assigns, and each such Person will be an express intended third-party beneficiary of this Agreement for such purposes. Buyer will pay, or will cause the Transferred Subsidiaries to pay, as and when incurred by any Person referred to in the immediately preceding sentence, all fees, costs, charges and expenses (including attorneys’ fees and expenses) incurred by such Person in enforcing such Person’s rights under this Section 5.24. Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 5.24 will not be terminated, revoked, modified or amended in any way so as to adversely affect any Person referred to in the second sentence of this Section 5.24(d) without the written consent of such Person.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, For a period of six years from and after the Effective Time through Time, and in any event subject to the six-year anniversary provisions of the date on which the Effective Time occursSection 5.21(b)(iv), Regional Buyer shall indemnify cause Buyer Bank to indemnify, defend and hold harmless each the present and former directors and officers of the Bank (the “D&O Indemnified Party Parties”), against all claimsLosses as incurred, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigativeinvestigative (each a “Claim”), arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts actions or omissions of such persons in the course of performing their duties for the Bank occurring or alleged to have occurred at or prior to before the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses Time (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertakingtransactions contemplated hereby), to the same extent required by as such persons have the Act or other applicable Law, right to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject be indemnified pursuant to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary Organizational Documents of the date on which the Effective Time occursBank, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement, to the extent permitted by applicable Law.
(b) Any D&O Indemnified Party wishing to claim indemnification under this Section 5.21 shall promptly notify Buyer Bank upon learning of any Claim, provided that failure to so notify shall not affect the obligation of Buyer Bank under this Section 5.21, unless, and only to the extent that, Buyer Bank is actually prejudiced in the defense of such Claim as a consequence. In the event of any such Claim (whether arising before or after the Effective Time), Buyer Bank shall have the right to assume the defense thereof and Buyer shall not be liable to such D&O Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such D&O Indemnified Parties in connection with the defense thereof. If Buyer Bank elects to assume the defense, it shall keep the D&O Indemnified Parties apprised of all developments, including settlement offers. If Buyer Bank elects not to assume such defense or counsel for the D&O Indemnified Parties advises that there are issues which raise conflicts of interest between Buyer Bank and the D&O Indemnified Parties, the D&O Indemnified Parties may retain counsel which is reasonably satisfactory to Buyer Bank, and Buyer Bank shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the D&O Indemnified Parties (which may not exceed one firm in any jurisdiction). The D&O Indemnified Parties shall have the right to employ separate counsel (either at their own expense or as provided in the prior sentence) and to participate in the defense of any Claims. In the event of any Claim, (i) the parties will cooperate in the defense of any such matter, (ii) Buyer Bank shall not be liable for any settlement effected without its prior written consent and (iii) Buyer Bank shall have no obligation to indemnify any D&O Indemnified Party if such indemnification would be in violation of any applicable federal or state banking Laws or regulations, or in the event that a federal or state banking agency or a court of competent jurisdiction shall determine that indemnification of a D&O Indemnified Party in the manner contemplated hereby is prohibited by applicable Laws and regulations, whether or not related to banking Laws.
(c) At For a period of six years following the Effective Time, Regional shall purchase Buyer will, and cause Buyer Bank to, use its commercially reasonable efforts to be maintained a prepaid Reporting Tail Endorsement on provide director’s and officer’s liability insurance (herein, “D&O Insurance”) that serves to reimburse the present and former officers and directors of the Bank or its existing Subsidiaries (determined as of the Effective Time) with respect to claims against such directors and officers liability arising from facts or events occurring before the Effective Time (including the transactions contemplated hereby), which insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with will contain at least the same coverage and amounts, and contain terms and conditions no less advantageous to the D&O Indemnified Party, as that coverage currently provided by the Bank; provided that if Buyer Bank is unable to maintain or obtain the insurance called for by this Section 5.21, Buyer Bank will provide as much comparable insurance as is reasonably available (subject to the limitations described below in this Section 5.21(c)); and provided, further, that officers and directors of better credit rating as compared the Bank or its Subsidiaries may be required to make application and provide customary representations and warranties to the carrier of the D&O Insurance for the Current purpose of obtaining such insurance. In no event shall Buyer Bank be required to expend for such tail insurance a premium amount in excess of an amount equal to 200% of the annual premiums paid by the Bank for D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during (the “Maximum D&O Tail Premium”). If the cost of such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed tail insurance exceeds the Maximum D&O Tail Premium, then Regional Buyer Bank shall obtain as much directors’ and officers’ liability tail insurance (coverage or a separate tail insurance policy with the greatest coverage under available for a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or cost not in excess of exceeding the Maximum D&O Tail Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional Buyer Bank or any of its successors or and assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates shall consolidate with or merges merge into any other Person corporation, association or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers shall transfer all or substantially all of its properties property and assets to any Personindividual, corporation or other entity, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties Buyer Bank and assets) of Regional, its Subsidiaries shall expressly assume and succeed to the obligations set forth in this Section 5.85.21.
(e) The provisions of this Section 5.21 are intended to be for the benefit of, and shall be enforceable by each D&O Indemnified Party, and each D&O Indemnified Party’s heirs and personal and legal representatives.
Appears in 1 contract
D&O Indemnification. (a) Without limiting All rights to indemnification, exculpation and advancement of expenses existing in favor of the current or former directors, officers, employees and agents of Acquiror, Panavision, SIM or any other rights that of their respective Subsidiaries (the “D&O Indemnified Persons”), as provided in the certificate of incorporation, articles of organization, bylaws or similar constituent documents of Acquiror, Panavision, SIM or any Indemnified Party may have pursuant to any employment agreement or indemnification agreement of their respective Subsidiaries, as applicable, in effect on the date hereof of this Agreement, or otherwisein any indemnification agreement or arrangement as in effect as of the date of this Agreement with respect to matters occurring prior to or at the Closing, shall survive the consummation of the Transactions and shall continue in full force and effect and Acquiror, Panavision, SIM or any of their respective Subsidiaries, as applicable, will perform and discharge its respective obligations to provide such indemnity, exculpation and advancement of expenses from and after the Effective Time through Closing for a period of six (6) years or until the six-year anniversary of the date on which the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action settlement or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense final adjudication of any Action commenced during such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Lawperiod.
(b) From Without limiting the Effective Time through foregoing, for a period of six (6) years from and after the six-year anniversary Closing Date, Acquiror shall cause the certificate of the date on which the Effective Time occursincorporation, bylaws or other governing documents of Acquiror, the articles of incorporation Surviving Corporation, SIM and bylaws of Regional shall containtheir respective successors, and Regional shall cause its articles of incorporation and bylaws if any, to so contain, contain provisions no less favorable with respect to indemnificationexculpation, indemnification and advancement of expenses and exculpation of present and former directors and officers of SunLink and its Acquiror, Panavision, SIM or any of their respective Subsidiaries in respect of acts or omissions occurring or alleged to have occurred for periods at or prior to the Effective Time Closing Date than are set forth in the articles certificate of incorporation and incorporation, bylaws or other governing documents of SunLink as in effect on the date of this Agreement.
(c) At the Effective TimeAcquiror, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence Panavision or SIM as of the date of this Agreement, except as may be required by applicable Law.
(c) Notwithstanding anything contained in this Agreement expiresto the contrary, this Section 9.2 (i) is terminated or cancelled during such six-year period intended to be for the benefit of, and will be enforceable by, each D&O Indemnified Person, and each D&O Indemnified Person’s heirs, legatees, Representatives, successors and assigns, and (ii) if shall survive the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess consummation of the Maximum PremiumTransactions indefinitely and shall be binding, jointly and severally, on terms all successors and conditions assigns of reasonable equivalenceAcquiror, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, Surviving Corporation and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) SIM. In the event Regional that Acquiror, the Surviving Corporation, SIM or any of its their respective successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in of Acquiror, the Surviving Corporation or SIM, as the case of a transfer of all or substantially all of the properties and assets) of Regionalmay be, shall expressly assume and succeed to the obligations set forth in this Section 5.89.2.
Appears in 1 contract
Sources: Business Combination Agreement (Saban Capital Acquisition Corp.)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time Time, and through the six-through the three year anniversary of the date on which the Effective Time occursTime, Regional WFBI shall indemnify and hold harmless the current and former officers, employees, directors and agents of Alliance and the Alliance Subsidiaries (each an “Indemnified Party Person”) against all claimsany costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, liabilitiesclaims, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, damages or liabilities incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of any act or pertaining to the fact that the Indemnified Party is omission or was an officer other matters existing or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, arising in each case whole or in part out of or pertaining to the fact that he or she was a director, officer, employee, fiduciary or agent of Alliance, Alliance Bank or any Alliance Subsidiary or is or was serving at the request of Alliance as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, including without limitation matters related to the negotiation, execution and performance of this Agreement or consummation of the Merger, to the fullest extent that SunLink which such Indemnified Parties would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement under the Alliance Articles of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertakingIncorporation and Bylaws, to the same extent required by and on the Act or other applicable Law, to repay same conditions as such advances if it person is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under pursuant to applicable Law.
(b) From the Effective Time through the six-year anniversary law and Alliance’s Articles of the date on which the Effective Time occursIncorporation or Bylaws, the articles of incorporation and/or any agreement between Alliance and bylaws of Regional shall containsuch Indemnified Person, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this AgreementAgreement and which been disclosed in Section 6.10 to the Alliance Disclosure Schedule, to the extent legally permitted to do so.
(b) Any Indemnified Person wishing to claim indemnification under this Section 6.10 hereof, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify WFBI, but the failure to so notify shall not relieve WFBI of any liability it may have to such Indemnified Person if such failure does not actually prejudice WFBI. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) WFBI shall have the right to assume the defense thereof and WFBI shall not be liable to such Indemnified Persons for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Persons in connection with the defense thereof, except that if WFBI elects not to assume such defense or counsel for the Indemnified Persons advises that there are issues which raise conflicts of interest between WFBI and the Indemnified Persons, the Indemnified Persons may retain counsel which is reasonably satisfactory to WFBI, and WFBI shall pay, promptly as statements therefore are received, the reasonable fees and expenses of such counsel for the Indemnified Persons (which may not exceed one firm in any jurisdiction), (ii) the Indemnified Persons will cooperate in the defense of any such matter, (iii) WFBI shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and (iv) WFBI shall have no obligation hereunder to the extent that a federal or state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Person in the manner contemplated hereby is prohibited by applicable laws and regulations.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six For three years from and after the Effective Time, provided that there shall be maintained in case that force (i) Regionaleither through the purchase by Alliance and Alliance Bank of tail coverage of Alliance’s existing officers’ and directors’ liability insurance policy, under WFBI’s existing policy, or another policy), officers’ and directors’ liability insurance in respect of acts or omissions occurring prior to the Effective Time covering each such Indemnified Person covered by the Alliance’s and Alliance Bank’s officers’ and directors’ liability insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum PremiumEffective Time, on terms with respect to coverage and conditions amount no less favorable than those of reasonable equivalencesuch policy in effect on the date hereof. The cost of such coverage for the full three year period (whether paid by WFBI or by Alliance or Alliance Bank shall not exceed 300% of the amount paid by Alliance in its last full fiscal year for one year’s coverage, which amount is set forth in Section 6.10 of the aggregateAlliance Disclosure Schedule. In the event that the cost of such coverage exceeds such amount, then the available amount shall be used to purchase coverage for the SunLink Indemnified Parties under longest available period. Section 6.10 of the Current D&O InsuranceAlliance Disclosure Schedule sets forth each contract, agreement, plan, resolution, charter provision, bylaw provision or other arrangement or understanding pursuant to which Alliance or any Alliance Subsidiary has or may have any obligation to indemnify any director, officer, employee or agent.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional WFBI or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates shall consolidate with or merges merge into any other Person entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any Personother entity, then, then and in each such case, proper provision shall be made so that the successors and assigns (in of WFBI or the case of a transfer of all or substantially all of the properties and assets) of Regional, surviving company shall expressly assume and succeed to the obligations set forth in this Section 5.86.10 hereof prior to or simultaneously with the consummation of such transaction.
Appears in 1 contract
D&O Indemnification. (a) Without limiting For a period of six (6) years after the Closing Date, the Surviving Corporation shall not amend, repeal or otherwise modify any other provisions of its certificate of incorporation or bylaws concerning indemnification, exculpation, advancement of expenses or limitation of liability of current and former directors, officers, fiduciaries or agents of the Company in any manner that would affect adversely the rights that any Indemnified Party may have pursuant thereunder of persons who, prior to any employment agreement the Closing Date, were current or indemnification agreement former directors, officers, fiduciaries or agents of the Company (such individuals, the “Company Indemnitees”) or (ii) the agreements listed on Schedule 8.1 hereto as in effect on the date hereof or otherwise(the “D&O Indemnification Agreements”), from and after the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, except to the extent required by applicable Law and except for any such change that would not be any less favorable with respect to the Act Company Indemnitees as the indemnification, exculpation, advancement of expenses or limitation of liability provisions contained in the Organizational Documents of the Company or the D&O Indemnification Agreements, as applicable, as of immediately prior to the Closing. Notwithstanding anything to the contrary in the certificate of incorporation, bylaws of the Company, the Surviving Corporation or any Subsidiary of the Company or any provision in any indemnification or other applicable Lawagreement to which any of them is a party or by which any of them is bound, (a) no exculpation or other provision in the certificate of incorporation or bylaws of the Company, the Surviving Corporation or any Subsidiary of the Company or any such agreement shall be deemed to repay exculpate any such advances if it is determined by a final determination of a court of competent jurisdiction person from its obligations under this Agreement and (which determination is not subject to appealb) that such Indemnified Party is not no person shall be entitled to indemnification or reimbursement or advancement of expenses under applicable Lawany provision of the Organization Documents of the Company, the Surviving Corporation or any Subsidiary of the Company or any such agreement for any matter for which such person is obligated to indemnify any Buyer Indemnified Party pursuant to this Agreement.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws Prior to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional the Buyer shall cause the Company to purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its fully pay for an extended reporting period endorsement under the Company’s existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance coverage in a form reasonably acceptable to Company that shall provide the Company Indemnitees with coverage for six (6) years following the Effective Time of not less than the existing coverage and have other terms not materially less favorable to the insured persons than the Company’s directors’ and officers’ liability insurance coverage presently maintained by the Company (the “D&O Tail Policy”). The Buyer shall not, and shall cause the Surviving Corporation to not, take any action to eliminate such D&O Tail Policy; provided, that none of the Buyer, the Surviving Corporation or coverage under a Reporting Tail Endorsement) as can any of their respective Affiliates shall be obtained for the remainder of such six-year period for required to pay an annualized aggregate premium at or not in excess of 300% of the Maximum Premium, on annual premium paid by the Company or its Subsidiaries for such policy as of the date hereof. The Buyer or the Surviving Corporation may substitute the D&O Tail Policy with policies of at least the same coverage containing terms and conditions of reasonable equivalence, in the aggregate, which are not materially less favorable to the SunLink Indemnified Parties under Company Indemnitees so long as such substitution does not result in gaps or lapses in coverage with respect to matters occurring at or prior to the Current D&O InsuranceClosing.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(ec) In the event Regional the Surviving Corporation or any of its Subsidiaries or any of their successors or assigns assigns, directly or indirectly (in including through a transaction at the case of a transfer of all or substantially all of Regional’s properties and assets), Buyer level) (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its or their properties and assets to any Personother Person other than the Buyer or any of its Subsidiaries, then, and in each such case, proper provision shall be made so that the successors and or assigns (in the case of a transfer of all or substantially all of the properties and assets) Surviving Corporation, its Subsidiary or any of Regional, their successors or assigns shall expressly assume and succeed to the obligations set forth in this Section 5.88.1. Notwithstanding anything in this Agreement to the contrary, except as required by applicable Law, the obligations under this Section 8.1 shall not be terminated or modified in such a manner as to adversely affect any Company Indemnitee to whom this Section 8.1 applies without the consent of such affected Company Indemnitee, it being understood and agreed that the Company Indemnitees are intended to be express third party beneficiaries of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Victoria's Secret & Co.)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and after From the Effective Time through the six-year later of (i) the sixth anniversary of the date on which the Effective Time occursoccurs and (ii) the expiration of any statute of limitations applicable to any claim, Regional action, suit, proceeding or investigation referred to below, the Surviving Corporation shall indemnify and hold harmless each Indemnified Party present and former director and officer of the Company and its subsidiaries, determined as of the Effective Time (the "INDEMNIFIED PARTIES"), against all any claims, losses, liabilities, damages, judgments, fines and reasonable fines, fees, costs and or expenses, including without limitation attorneys’ ' fees and disbursementsdisbursements (collectively, "COSTS"), incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is matters existing or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective TimeTime (including, without limitation, the Merger, the preparation, filing and mailing of the Proxy Statement and the other transactions and actions contemplated by this Agreement), whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink the Company or such subsidiary would have been permitted to do so permitted, under applicable Law. Each Indemnified Party will be entitled law, indemnification agreements existing on the date hereof, the Amended and Restated Articles or Certificate of Incorporation or Amended and Restated Bylaws of the Company or such subsidiary in effect on the date hereof, to advancement of reasonable indemnify such Person (and the Surviving Corporation shall also advance expenses (including reasonable attorneys’ fees) as incurred in to the defense of any such claim, Action or investigation from Regional following receipt by Regional from fullest extent permitted under applicable law provided the Indemnified Party of a request therefor; provided that any Indemnified Party person to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, undertaking to repay such advances if it is ultimately determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party person is not entitled to indemnification under applicable Lawindemnification).
(b) From Any Indemnified Party wishing to claim indemnification under this Section 4.12, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability or obligation it may have to such Indemnified Party except, and only to the extent, that such failure materially prejudices the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time through Time), the Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received. If such indemnity is not available with respect to any Indemnified Party, then the Surviving Corporation and the Indemnified Party shall contribute to the amount payable in such proportion as is appropriate to reflect relative faults and benefits. In the event that any claim or claims are asserted or made within the aforesaid six-year anniversary of the date on which the Effective Time occursperiod, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws all rights to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries indemnification in respect of acts any such claim or omissions occurring or alleged to have occurred at or prior to claims shall continue until the Effective Time than are set forth in the articles final disposition of incorporation any and bylaws of SunLink as in effect on the date of this Agreementall such claims.
(c) At Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any present or former director or officer of the Company, on or prior to the sixth anniversary of the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date provisions of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if Section 4.12 shall continue in effect until the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder final disposition of such six-year period for an annualized premium at claim, action, suit, proceeding or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insuranceinvestigation.
(d) If any Indemnified Party makes any claim This covenant is intended to be for indemnification or advancement of expenses under this Section 5.8 that is denied by Regionalthe benefit of, and a court shall be enforceable by, each of competent jurisdiction determines that the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled entitled, whether pursuant to such indemnification law, contract or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by lawotherwise.
(e) In To the event Regional or extent that the Surviving Corporation fails to perform any of its successors or assigns (in obligations pursuant to this Section 4.12, Parent shall assume the case of a transfer of all or substantially all of Regional’s properties obligations and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all rights of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in Surviving Corporation under this Section 5.84.12.
Appears in 1 contract
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through Closing Date, Buyer shall cause the six-year anniversary of the date on which the Effective Time occurs, Regional shall Company to (i) indemnify and hold harmless each present and former manager, director and officer of the Company (collectively, the “Company Indemnified Party Parties”), against any and all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, Losses incurred or suffered by any of the Company Indemnified Parties in connection with any claim, Action Liabilities or investigationany Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is matters existing or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective TimeClosing Date, whether asserted or claimed prior to, at or after the Effective TimeClosing Date, in each case to the fullest extent that SunLink the Company would have been permitted to do so under applicable Law. Each Law and under the Company Organizational Documents as in effect on the date of this Agreement (but in each case, subject to the limitations on the Company’s ability to indemnify managers, directors and officers under Section 145 of the DGCL), to indemnify such Company Indemnified Parties and (ii) advance expenses as incurred by any Company Indemnified Party will be in connection with any matters for which such Company Indemnified Party is entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional indemnification from the Indemnified Party of a request thereforCompany pursuant to this Section 5.7 to the fullest extent permitted under applicable Law or, if greater, under the Company Organizational Documents; provided provided, however, that any the Company Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, undertaking to repay such advances if it is ultimately and finally determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) and all rights of appeal have lapsed that such Company Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall containCompany Organizational Documents, and Regional shall cause its articles pursuant to this Section 5.7. The terms and provisions of incorporation and bylaws this Section 5.7 are intended to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries be in respect of acts or omissions occurring or alleged to have occurred at or prior addition to the Effective Time than are set forth in rights otherwise available to the articles Company Indemnified Parties by applicable Law, charter, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, the Company Indemnified Parties and their respective heirs and representatives, each of incorporation and bylaws of SunLink as in effect on the date whom is an intended third party beneficiary of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) 5.7. In the event Regional Buyer or the Company, or any of its their respective successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets)assigns, (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or mergerPerson, or (ii) transfers all or substantially all of its properties and or assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in of Buyer or the Company, as the case of a transfer of all or substantially all of may be, honor the properties and assets) of Regional, shall expressly assume and succeed to the indemnification obligations set forth in this Section 5.85.7.
(b) Prior to or simultaneously with the Closing, Buyer shall, or shall cause the Company to, obtain, at Buyer’s cost, a non-cancelable run-off insurance policy of not less than the existing coverage amount, for a period of six (6) years after the Closing Date to provide insurance coverage for events, acts or omissions occurring on or prior to the Closing Date for all persons who were directors, managers or officers of the Company or the Business on or prior to the Closing Date, which policy shall contain terms and conditions no less favorable to the insured persons than the directors’, managers’ or officers’ liability coverage presently maintained by the Company or by Seller on the Company’s behalf.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Amneal Pharmaceuticals, Inc.)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through Time, the six-year anniversary of Surviving Company and each Subsidiary shall indemnify, defend and hold harmless the date on which individuals who at any time prior to the Effective Time occurswere directors or officers of any HSE Group Entity (collectively, Regional shall indemnify the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such and hold harmless each Indemnified Party against all Losses claims, lossesdamages, liabilities, damagescosts, judgments, fines and reasonable fees, costs and expenses, expenses (including attorneys’ fees and disbursementsexpenses), incurred judgments, fines, Losses, and amounts paid in settlement in connection with any actual or threatened action, suit, claim, Action proceeding or investigation, investigation (and regardless of whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party any claim is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in ) (each case a “Claim”) to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ feesA) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act HSE Charter Documents or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink any Employment Agreement as in effect on the date of this Agreement.
Agreement and (cB) At permitted under applicable Law. Without limiting the Effective Timeforegoing, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for in the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement event any Indemnitee becomes involved in full force and effect for a term of six years any capacity in any Claim then from and after the Effective Time, provided that the Surviving Company shall periodically advance to such Indemnitee its legal and other expenses (including the cost of any investigation and preparation incurred in case that connection therewith) promptly after statements therefore are received (i) Regional’s insurance policy in existence as unless the Surviving Company shall elect to defend such Claim), subject to the provision by such Indemnitee of any undertaking to reimburse the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, amounts so advanced in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement event of expenses under this Section 5.8 that is denied final non-appealable determination by Regional, and a court of competent jurisdiction determines that such Indemnitee is not entitled thereto; provided, however, that neither the Indemnified Party is entitled Surviving Company nor any Subsidiary thereof shall be liable for any settlement effected without the prior written consent of the Surviving Company. Notwithstanding anything in this Section 5.6 to such indemnification the contrary, in no event shall the Surviving Company or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, any Subsidiary thereof be obligated to indemnify any Indemnitee for any Claim incurred by an Indemnitee arising from any claim by an equity holder of any HSE Group Entity, or any employee, partner, fiduciary, officer or agent thereof.
(b) The Indemnitees to whom this Section 5.6 applies shall be third party beneficiaries of this Section 5.6. The provisions of this Section 5.6 are intended to be for the Indemnified Party in connection with pursuing benefit of and shall be enforceable by each Indemnitee, his or her claims to heirs and his or her representatives. This Section 5.6 shall be binding on the fullest extent permitted by law.
(e) In the event Regional or any of Surviving Company and its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.8assigns.
Appears in 1 contract
D&O Indemnification. (a) Without limiting The Company agrees that the transactions contemplated hereby shall not affect or diminish, and from and after the Closing, the Company shall cause each of the TLC Subsidiaries not to make any changes to their respective organizational documents that would adversely affect or diminish, any of the TLC Subsidiaries' duties and obligations of indemnification existing as of the Closing Date in favor of employees, agents, directors or officers of the TLC Subsidiaries or, with respect to liabilities of or related to the TLC Business, of Mattel, arising by virtue of the TLC Subsidiaries' organizational documents in the form in effect at the date of this Agreement or arising by operation of law or arising by virtue of any contract, resolution or other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on document existing at the date hereof or otherwiseof this Agreement, and such duties and obligations shall continue in full force and effect and be honored by the Company for so long as they would (but for the transactions hereby) otherwise survive and continue in full force and effect.
(b) In addition to the foregoing, from and after the Effective Time through Closing, the six-year anniversary Company shall indemnify, hold harmless and defend each person who is a current or former officer or director of any of the date on which TLC Subsidiaries or, with respect to liabilities of or related to the Effective Time occursTLC Business, Regional shall indemnify and hold harmless each Indemnified Party of Mattel, against all claimslosses, lossescosts, obligations, liabilities, damagessettlement payments, awards, judgments, fines fines, penalties, damages, demands, claims, actions, causes of action, assessments, deficiencies and reasonable fees, costs and expenses, other charges ("Losses") or expenses (including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, ' fees) arising out of or pertaining to the fact that the Indemnified Party is or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring (or alleged to have acts or omissions) by them in their capacities as such, which acts or omissions occurred at or prior to the Effective TimeClosing. To the maximum extent permitted by applicable law, whether asserted or claimed prior tothe indemnification and related rights hereunder shall be mandatory rather than permissive, at or after and the Effective Time, Company shall promptly advance expenses in each case connection with such indemnification to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request thereforlaw; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertakingthat, to the extent required by law, the Act or other applicable Law, person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party person is not entitled to indemnification under applicable Law.
(b) From indemnification. At the Effective Time through Closing, the six-year anniversary Company shall assume and become liable for all liabilities and obligations of the date on which the Effective Time occurs, the articles TLC Subsidiaries (and each of incorporation their respective successors and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of assigns) contemplated by this AgreementSection 5.3.
(c) At the Effective TimeThe provisions of this Section 5.3, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of are intended to be for the date benefit of, and shall be enforceable by, each person entitled to indemnification hereunder, and each such person's heirs, representatives, successors or assigns, it being expressly agreed that such persons shall be third party beneficiaries of this Agreement expiresSection 5.3, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premiumare in addition to, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premiumsubstitution for, on terms and conditions of reasonable equivalence, in the aggregate, any other rights to the SunLink Indemnified Parties under the Current D&O Insuranceindemnification or contribution that any such person may have by contract or otherwise.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this This Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and 5.3 shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets apply to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.8Excluded Liabilities.
Appears in 1 contract
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have For six (6) years after the Closing, Purchasers shall, and shall cause the Purchased Entities to, (i) fulfill the obligations of the Purchased Entities to their present and former directors and officers pursuant to the terms of the Organizational Documents of the Purchased Entities and/or as provided in any employment agreement or indemnification agreement in effect on place between any Seller Entity or any Purchased Entity and any of their respective present and former directors and officers, in each case for events that occurred and matters that arose prior to the date hereof Closing to the extent relating to the Assumed Liabilities (“Preclosing D&O Liabilities”) and (ii) not amend, repeal or otherwiseotherwise modify any provisions for indemnification, from and after reimbursement, contribution or advancement of expenses in the Effective Time through the six-year anniversary Organizational Documents of the date on which Purchased Entities or indemnification agreements referred to in the Effective Time occurs, Regional shall indemnify and hold harmless each Indemnified Party against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining foregoing clause (i) applicable to the fact present and former directors and officers of the Purchased Entities in any manner that would adversely affect the Indemnified Party is or was an officer or director rights of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, such individuals in respect of acts actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, Closing to the extent relating to the Assumed Liabilities, unless such modification is required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From For six (6) years after the Effective Time through the six-year anniversary of the date on which the Effective Time occursClosing, the articles of incorporation and bylaws of Regional shall containSeller shall, and Regional shall cause its articles Affiliates to, (i) fulfill the obligations of incorporation the Seller Entities to any former directors and bylaws officers who are Transferred Employees pursuant to so containthe terms of the Organizational Documents of the Seller Entities and/or as provided in any indemnification agreement in place between any Seller Entity and any such and former directors and officers, in each case for events that occurred and matters that arose prior to the Closing to the extent relating to the Retained Liabilities; and (ii) not amend, repeal or otherwise modify any provisions no less favorable with respect to for indemnification, reimbursement, contribution or advancement of expenses and exculpation in the Organizational Documents of present and the Seller Entities or indemnification agreements referred to in the foregoing clause (i) applicable to the relevant former directors and officers of SunLink and its Subsidiaries the Purchased Entities in any manner that would adversely affect the rights of such individuals in respect of acts actions or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in Closing to the articles of incorporation and bylaws of SunLink as in effect on extent relating to the date of this AgreementRetained Liabilities, unless such modification is required by applicable Law.
(c) At the Effective TimeSeller shall, Regional and shall purchase cause its Affiliates to, at its sole cost and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and expense, maintain such endorsement in full force and effect for a term period of six (6) years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much Closing directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess covering occurrences of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, Purchased Entities prior to the SunLink Indemnified Parties under the Current Closing (“Pre-Closing Occurrences D&O Insurance.
(dCoverage”) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), those individuals who are (i) consolidates with or merges into currently (and any other Person additional individuals who prior to Closing become) directors and shall not be officers of the continuing or surviving corporation or entity of such consolidation or merger, or Purchased Entities and (ii) transfers all covered by Seller’s and its Affiliates’ directors’ and officers’ liability insurance policies. Pre-Closing Occurrences D&O Coverage shall provide at least substantially equivalent terms, conditions, and benefits as to the current policies of directors’ and officers’ liability insurance maintained, which shall be deemed satisfied by providing Pre-Closing Occurrences D&O Coverage of at least ten million Dollars ($10,000,000). At Seller’s sole discretion (and at its sole cost and expense), Pre-Closing Occurrences D&O Coverage may be provided for (i) through Sellers’ and its Affiliates’ directors’ and officers’ insurance, (ii) through a tail policy purchased prior to or substantially following the Closing or (iii) through a combination thereof. If a tail policy is purchased and transferred with a Purchased Entity, Purchasers shall use their reasonable best efforts to cause such policy to be maintained in full force and effect for its full term, to honor all of its properties and assets to any Person, thenSeller’s obligations thereunder, and in each to bear the expense of any such case, proper provision shall be made so that tail policy purchased prior to or at the successors and assigns Closing at a premium not to exceed ninety-thousand Dollars (in the case of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.8$90,000).
Appears in 1 contract
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and after From the Effective Time through the six-year sixth anniversary of the date on which the Effective Time occurs, Regional shall each of Public Company and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless each 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 or officer of Merger Partner, Public Company or any of their respective subsidiaries (the “Indemnified Party Persons”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party Person is or was an officer officer, director, employee or director agent of SunLink Merger Partner, Public Company or any of its Subsidiaries serving at any time their respective subsidiaries, or, while a director or officer of SunLink Merger Partner, Public Company or any of its Subsidiariestheir respective subsidiaries, is or was serving at the request of SunLink ▇▇▇▇▇▇ Partner, Public Company or one any of its Subsidiaries their respective subsidiaries as an officer, a director, managerofficer, employee or agent of another Personperson, whether asserted or claimed prior to, at or after the Effective Time, to the extent permitted under the applicable certificate of incorporation and bylaws. Each Indemnified Person will be entitled to advancement of expenses (including attorneys’ fees) incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Public Company and the Surviving Corporation following receipt by Public Company or the Surviving Corporation from the Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the certificate of incorporation and bylaws of the Surviving Corporation will contain provisions at least as favorable as the provisions relating to the indemnification, advance of expenses and elimination of liability for monetary damages set forth in the certificate of incorporation and bylaws of Merger Partner and Public Company immediately prior to the Effective Time.
(b) Prior to the Effective Time, Public Company shall purchase a six-year prepaid “D&O tail policy” (the “D&O Public Company Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Public Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability to be mutually agreed by Public Company and ▇▇▇▇▇▇ Partner prior to the Closing (which approval will not be unreasonably withheld, conditioned or delayed), but that are no more favorable than the coverage provided under Public Company’s existing policies as of the date of this Agreement with respect to coverage of any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Public Company by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Merger).
(c) Prior to the Effective Time, ▇▇▇▇▇▇ Partner shall purchase a six-year prepaid “D&O tail policy” (the “Merger Partner Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Merger Partner’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under ▇▇▇▇▇▇ Partner’s existing policies as of the date of this Agreement with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Merger Partner by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Merger).
(d) Public Company shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by a person in successfully enforcing such person’s rights provided in this Section 6.10.
(e) Public Company and Merger Partner agree that all rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in each favor of the current or former directors, officers or employees, as the case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement may be, of reasonable expenses (including reasonable attorneys’ fees) incurred Public Company, Merger Partner or any of their respective subsidiaries as provided in the defense their respective certificates of any such claim, Action incorporation or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act bylaws or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries organization documents or in respect of acts or omissions occurring or alleged to have occurred at or any agreement in existence immediately prior to the Effective Time than are set forth in shall survive the articles of incorporation Merger and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement continue in full force and effect effect. The provisions of this Section 6.10 are intended to be in addition to the rights otherwise available to the current officers and directors of Public Company, Merger Partner or any of their respective subsidiaries by law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the Indemnified Persons, their heirs and their representatives. The obligations set forth in this Section 6.10 shall not be terminated, amended or otherwise modified in any manner that adversely affects any Indemnified Person, or any person who is a term beneficiary under the policies referred to in this Section 6.10 and their heirs and representatives, without the prior written consent of six years from and after such affected Indemnified Person or other person.
(f) If the Effective Time, provided that in case that Surviving Corporation or Public Company or any of their respective successors or assigns shall (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates consolidate with or merges merge into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers transfer all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision provisions shall be made so that the successors and assigns (in the case of a transfer of all or substantially such person shall assume all of the properties and assets) obligations of Regional, shall expressly assume and succeed to the obligations such person set forth in this Section 5.86.10.
(g) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Merger Partner, Public Company or any of their respective subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.10 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Sources: Merger Agreement (IMARA Inc.)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time Time, and through the six-through the three year anniversary of the date on which the Effective Time occursTime, Regional Eagle shall indemnify and hold harmless the current and former officers, employees, directors and agents of Fidelity and F&T Bank their Subsidiaries (each an “Indemnified Party Person”) against all claimsany costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, liabilitiesclaims, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, damages or liabilities incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of any act or pertaining to the fact that the Indemnified Party is omission or was an officer other matters existing or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, arising in each case whole or in part out of or pertaining to the fact that he or she was a director, officer, employee, fiduciary or agent of Fidelity, F&T Bank or any Fidelity Subsidiary or is or was serving at the request of Fidelity as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, including without limitation matters related to the negotiation, execution and performance of this Agreement or consummation of the Merger, to the fullest extent that SunLink which such Indemnified Parties would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement under the Fidelity Articles of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertakingIncorporation and Bylaws, to the same extent required by and on the Act or other applicable Law, to repay same conditions as such advances if it person is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under pursuant to applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the law and Fidelity’s articles of incorporation or bylaws, and/or any agreement, arrangement or understanding between Fidelity and bylaws of Regional shall containsuch Indemnified Person, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this AgreementAgreement and which been disclosed in Section 6.11 to the Fidelity Disclosure Schedule, to the extent legally permitted to do so; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law.
(b) Any Indemnified Person wishing to claim indemnification under this Section 6.11 hereof, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Eagle, but the failure to so notify shall not relieve the Eagle of any liability it may have to such Indemnified Person if such failure does not actually prejudice the Eagle. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Eagle shall have the right to assume the defense thereof and the Eagle shall not be liable to such Indemnified Persons for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Persons in connection with the defense thereof, except that if the Eagle elects not to assume such defense or counsel for the Indemnified Persons advises that there are issues which raise conflicts of interest between the Eagle and the Indemnified Persons, the Indemnified Persons may retain counsel which is reasonably satisfactory to the Eagle, and the Eagle shall pay, promptly as statements therefore are received, the reasonable fees and expenses of such counsel for the Indemnified Persons (which may not exceed one firm in any jurisdiction), (ii) the Indemnified Persons will cooperate in the defense of any such matter, (iii) the Eagle shall not be liable for any settlement effected without its prior written consent and (iv) the Eagle shall have no obligation hereunder to the extent that a federal or state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Person in the manner contemplated hereby is prohibited by applicable laws and regulations.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six For three years from and after the Effective Time, provided that there shall be maintained in case that force (i) Regionaleither through the purchase by Fidelity and F&T Bank of tail coverage of Fidelity’s existing officers’ and directors’ liability insurance policy, under Eagle’s existing policy, or another policy), officers’ and directors’ liability insurance in respect of acts or omissions occurring prior to the Effective Time covering each such Indemnified Person covered by the Fidelity’s and F&T Bank’s officers’ and directors’ liability insurance policy in existence as of the Effective Time, on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date of hereof; provided that, in satisfying its obligation under this Agreement expiresSection 6.11, is terminated Eagle shall not be obligated to pay premiums for the tail or cancelled during such six-other policy covering the full three year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of (and Fidelity and F&T Bank shall not pay a premium in excess of) 250% of the Maximum Premiumamount paid by Fidelity in its last full fiscal year for one year’s coverage, on terms and conditions which amount is set forth in Section 6.11 of reasonable equivalencethe Fidelity Disclosure Schedule. Section 6.11 of the Fidelity Disclosure Schedule sets forth each contract, in the aggregateagreement, plan, resolution, charter provision, bylaw provision or other arrangement or understanding pursuant to the SunLink Indemnified Parties under the Current D&O Insurancewhich Fidelity or any Fidelity Subsidiary has or may have any obligation to indemnify any director, officer employee or agent.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional Eagle or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates shall consolidate with or merges merge into any other Person entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers shall transfer all or substantially all of its properties and assets to any Personother entity, then, then and in each such case, proper provision shall be made so that the successors and assigns (in of Eagle or the case of a transfer of all or substantially all of the properties and assets) of Regional, surviving company shall expressly assume and succeed to the obligations set forth in this Section 5.86.11 hereof prior to or simultaneously with the consummation of such transaction. This provision shall survive for a periods set forth in this Section 6.11.
Appears in 1 contract
Sources: Merger Agreement (Eagle Bancorp Inc)
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from From and after the Effective Time through the six-year anniversary of the date on which the Effective Time occursTime, Regional Acquiror shall indemnify indemnify, defend and hold harmless each current or former director, officer or employee of the Company or any of its Subsidiaries or fiduciary of the Company or any of its Subsidiaries under any Company Benefit Plans or any Person who is or was serving at the request of the Company or any of its Subsidiaries as a director, officer, trustee or employee of another Person (each, an “Indemnified Party”), and any Person who becomes an Indemnified Party between the date hereof and the Effective Time, against all claimsany costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, liabilitiesclaims, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, damages or liabilities incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is matters existing or was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink or any of its Subsidiaries, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, including the Contemplated Transactions, whether asserted or claimed prior to, at or after the Effective Time, in each case to the extent such indemnification is required by the Company’s or such Subsidiary’s certificate of incorporation, bylaws or similar organizational documents, in each case as made available to Acquiror. Acquiror shall also advance expenses incurred by an Indemnified Party in each such case to the fullest extent that SunLink would have been permitted by applicable Legal Requirements, subject to do so under applicable Law. Each Indemnified Party will be entitled to advancement the receipt of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any an undertaking from such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances advanced expenses if it is determined by a final determination and nonappealable judgment of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is was not entitled to indemnification under applicable Lawhereunder.
(b) From Prior to the Effective Time through Time, the six-year anniversary Company shall obtain and Acquiror shall fully pay the premium for the extension of the date Company’s directors’ and officers’ liability insurance policies set forth on Schedule 6.5(b) of the Company Disclosure Schedule (complete and accurate copies of which have been heretofore made available to Acquiror) (the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries “Existing D&O Policy”) in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time Time, covering each person currently covered by the Existing D&O Policy for a period of six (6) years after the Effective Time; provided that Acquiror shall not be required to pay in the aggregate more than are two hundred percent (200%) of the amount of the aggregate annual premium paid by the Company for the current policy term for such policy, which annual premium is set forth on Schedule 6.5(b) of the Company Disclosure Schedules. It is understood and agreed that if the aggregate premiums for the coverage set forth in this Section 6.5(b) would exceed such two hundred percent (200%) amount, Acquiror shall be obligated to pay for the articles of incorporation and bylaws of SunLink maximum available coverage as in effect on may be obtained by the date of this AgreementCompany for such two hundred percent (200%) amount.
(c) At The provisions of this Section 6.5 shall survive consummation of the Effective Time, Regional shall purchase Merger and cause the Bank Merger and are intended to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regionalbenefit of, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenseswill be enforceable by, then Regional shall pay the each Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by lawheirs and his or her legal representatives.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, shall expressly assume and succeed to the obligations set forth in this Section 5.8.
Appears in 1 contract
D&O Indemnification. (a) Without limiting any other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement in effect on the date hereof or otherwise, from and after From the Effective Time through the six-year sixth anniversary of the date on which the Effective Time occurs, Regional shall each of Public Company and the Surviving Corporation shall, jointly and severally, indemnify and hold harmless each 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 or officer of Merger Partner, Public Company or any of their respective subsidiaries (the “D&O Indemnified Party Persons”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party Person is or was an officer officer, director, employee or director agent of SunLink Merger Partner, Public Company or any of its Subsidiaries serving at any time their respective subsidiaries, or, while a director or officer of SunLink Merger Partner, Public Company or any of its Subsidiariestheir respective subsidiaries, is or was serving at the request of SunLink Merger Partner, Public Company or one any of its Subsidiaries their respective subsidiaries as an officer, a director, managerofficer, employee or agent of another Personperson, whether asserted or claimed prior to, at or after the Effective Time, to the extent permitted under the applicable certificate of incorporation and bylaws. Each D&O Indemnified Person will be entitled to advancement of expenses (including attorneys’ fees) incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Public Company and the Surviving Corporation following receipt by Public Company or the Surviving Corporation from the D&O Indemnified Person of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the certificate of incorporation and bylaws of the Surviving Corporation will contain provisions at least as favorable as the provisions relating to the indemnification, advance of expenses and elimination of liability for monetary damages set forth in the certificate of incorporation and bylaws of Merger Partner and Public Company immediately prior to the Effective Time.
(b) Prior to the Effective Time, Public Company shall purchase a six (6)-year prepaid “D&O tail policy” (the “D&O Public Company Tail Policy”) for the non-cancellable extension of the directors’ and officers’ liability coverage of Public Company’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability to be mutually agreed by Public Company and Merger Partner prior to the Closing (which approval will not be unreasonably withheld, conditioned or delayed), but that are no more favorable than the coverage provided under Public Company’s existing policies as of the date of this Agreement with respect to coverage of any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Public Company by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Merger).
(c) Prior to the Effective Time, Merger Partner shall purchase a six (6)-year prepaid “D&O tail policy” for the non-cancellable extension of the directors’ and officers’ liability coverage of Merger Partner’s existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under ▇▇▇▇▇▇ Partner’s existing policies as of the date of this Agreement with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of Merger Partner by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the Merger).
(d) Public Company shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by a person in successfully enforcing such person’s rights provided in this Section 6.10.
(e) Public Company and Merger Partner agree that all rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in each favor of the current or former directors, officers or employees, as the case to the fullest extent that SunLink would have been permitted to do so under applicable Law. Each Indemnified Party will be entitled to advancement may be, of reasonable expenses (including reasonable attorneys’ fees) incurred Public Company, Merger Partner or any of their respective subsidiaries as provided in the defense their respective certificates of any such claim, Action incorporation or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act bylaws or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law.
(b) From the Effective Time through the six-year anniversary of the date on which the Effective Time occurs, the articles of incorporation and bylaws of Regional shall contain, and Regional shall cause its articles of incorporation and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries organization documents or in respect of acts or omissions occurring or alleged to have occurred at or any agreement in existence immediately prior to the Effective Time than are set forth in shall survive the articles of incorporation Merger and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement continue in full force and effect effect. The provisions of this Section 6.10 are intended to be in addition to the rights otherwise available to the current officers and directors of Public Company, Merger Partner or any of their respective subsidiaries by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Persons, their heirs and their representatives. The obligations set forth in this Section 6.10 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Person, or any person who is a term beneficiary under the policies referred to in this Section 6.10 and their heirs and representatives, without the prior written consent of six years from and after such affected D&O Indemnified Person or other person.
(f) If the Effective Time, provided that in case that Surviving Corporation or Public Company or any of their respective successors or assigns shall (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) In the event Regional or any of its successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates consolidate with or merges merge into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers transfer all or substantially all of its properties and assets to any Personperson, then, and in each such case, proper provision provisions shall be made so that the successors and assigns (in the case of a transfer of all or substantially such person shall assume all of the properties and assets) obligations of Regional, shall expressly assume and succeed to the obligations such person set forth in this Section 5.86.10.
(g) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Merger Partner, Public Company or any of their respective subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 6.10 is not prior to or in substitution for any such claims under such policies.
Appears in 1 contract
Sources: Merger Agreement (Kindly MD, Inc.)
D&O Indemnification. (a) Without limiting any For a period of six (6) years after the Equity Closing Date, Issuer shall cause the Company to not adversely modify or amend, or to repeal, and to maintain in effect and continue to provide to the fullest extent permitted by applicable Legal Requirement all rights to indemnification, advancement of expenses, exculpation and other rights that any Indemnified Party may have pursuant to any employment agreement or indemnification agreement limitations on liability as in effect on the date hereof in the Organizational Documents of the Company in favor of any current or otherwiseformer director or officer that benefits from such indemnification, advancement of expenses, exculpation and other limitations on liability as set forth in such Organizational Documents (each such director or officer, a “D&O Indemnitee”). Without ▇▇▇▇▇▇ the foregoing, from and after the Effective Time through Closing, Issuer shall, and shall cause the six-year anniversary of the date on which the Effective Time occursCompany to, Regional shall (i) indemnify and hold harmless each Indemnified Party D&O Indemnitee who at the Equity Closing is a D&O Indemnitee against all claimsjudgments, fines, losses, liabilitiesclaims, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, damages or liabilities incurred in connection with any claim, Action action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or a D&O Indemnitee was an officer or director of SunLink or any of its Subsidiaries serving at any time while a director or officer of SunLink of, or any of its Subsidiariesotherwise entitled to indemnification from, is or was serving at the request of SunLink or one of its Subsidiaries as an officer, director, manager, employee or agent of another Person, in respect of acts or omissions occurring or alleged to have occurred Company at or prior to the Effective TimeEquity Closing, in each case, whether asserted or claimed prior to, at or after the Effective TimeEquity Closing (the “D&O Indemnifiable Claims”), and (ii) pay or, if requested by any D&O Indemnitee advance, to such D&O Indemnitee all costs, charges and expense, including attorneys’ fees paid or incurred in connection with investigating, defending, being a witness in or participating in, or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, in each case to the fullest extent that SunLink Parent, Newco BHF or any of their respective Subsidiaries (including the Company), as the case may be, would have been permitted under the applicable Legal Requirements to do so indemnify such Person (including promptly advancing expenses as incurred to the fullest extent permitted under applicable Law. Each Indemnified Party will be entitled to advancement of reasonable expenses (including reasonable attorneys’ fees) incurred in the defense of any such claim, Action or investigation from Regional following receipt by Regional from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Act or other applicable Law, to repay such advances if it is determined by a final determination of a court of competent jurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable LawLegal Requirements).
(b) From Notwithstanding anything contained in this Agreement to the Effective Time through contrary, this Section 5.2 shall survive the six-year anniversary consummation of the date Contemplated Transactions and shall be binding, jointly and severally, on which all successors and assigns of Issuer and are intended to be for the Effective Time occurs, the articles of incorporation and bylaws of Regional shall containbenefit of, and Regional shall cause its articles will be enforceable by, each D&O Indemnitee and each of incorporation their heirs and bylaws to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of SunLink and its Subsidiaries in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time than are set forth in the articles of incorporation and bylaws of SunLink as in effect on the date of this Agreement.
(c) At the Effective Time, Regional shall purchase and cause to be maintained a prepaid Reporting Tail Endorsement on its existing directors and officers liability insurance policy (providing only for the Side A coverage where the existing policies also include Side B coverage for Regional) covering the SunLink Indemnified Parties from an insurance carrier with the same of better credit rating as compared to the carrier for the Current D&O Insurance and maintain such endorsement in full force and effect for a term of six years from and after the Effective Time, provided that in case that (i) Regional’s insurance policy in existence as of the date of this Agreement expires, is terminated or cancelled during such six-year period and (ii) if the premium for the Reporting Tail Endorsement would exceed the Maximum Premium, then Regional shall obtain as much directors’ and officers’ liability insurance (or coverage under a Reporting Tail Endorsement) as can be obtained for the remainder of such six-year period for an annualized premium at or not in excess of the Maximum Premium, on terms and conditions of reasonable equivalence, in the aggregate, to the SunLink Indemnified Parties under the Current D&O Insurance.
(d) If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.8 that is denied by Regional, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Regional shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law.
(e) representatives. In the event Regional that Issuer or any of its respective successors or assigns (in the case of a transfer of all or substantially all of Regional’s properties and assets), (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns (in the case of a transfer of all or substantially all of the properties and assets) of Regional, Issuer shall expressly assume and succeed to the obligations set forth in this Section 5.85.2.
Appears in 1 contract
Sources: Investment Agreement (Conns Inc)