Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim). (b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law. (c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof. (d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof. (e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein. (f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 3 contracts
Sources: Merger Agreement (ConversionPoint Holdings, Inc.), Merger Agreement (ConversionPoint Holdings, Inc.), Merger Agreement (Inuvo, Inc.)
Indemnification; Insurance. (a) The provisions with respect Parent and Subsidiary agree that all rights to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed indemnification for acts or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time omissions occurring prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any the current or former employee of CPTtrustees, Inuvo directors or any of their respective Subsidiaries officers (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”“) of the Company and its subsidiaries as provided in CPT Certificate their respective declarations of Incorporationtrust, CPT Bylaws, Inuvo Articles certificates of Incorporation incorporation or Inuvo Bylaws bylaws (or the similar organizational documents of CPT’s or Inuvo’s Subsidiaries) documents), shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms.
(i) In addition to the rights provided in Section 6(a) above, in the event that any officer, director or trustee of the Company or any of the Company’s subsidiaries (the “Indemnification Parties“) is, or is threatened to be, made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including without limitation, actions by or on behalf of securityholders, (each, a “Proceeding“), by reason of the fact that he is or was an officer, employee, director or trustee of the Company or any of the Company’s subsidiaries or any action or omission by such individual in his capacity as such (including any action or omission occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), Parent and Subsidiary and their respective successors and assigns (the “Indemnifying Parties“) shall, from and after the Effective Time, indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnification Party against any losses, claims, liabilities, expenses (including reasonable documented attorneys’ fees and expenses), judgments, fines and amounts paid in settlement in accordance herewith in connection with any such Proceeding.
(ii) Any Indemnification Party proposing to assert the right to be indemnified under this Section 6(b) shall, promptly after receipt of notice of commencement of any action against such Indemnification Party in respect of which a claim is to be made under this Section 6(b) against the Indemnifying Parties, notify the Indemnifying Parties of the commencement of such action, enclosing a copy of all papers served; provided, however, that the failure to provide such notice shall not affect the obligations of the Indemnifying Parties except to the extent such failure to notify materially prejudices the Indemnifying Parties’ ability to defend such claim, action, suit, proceeding or investigation; and provided further, however, that, in the case of any Proceeding pending, to the knowledge of the Company, at the Control Time or Effective Time, the Company shall notify Parent pursuant to this Section 6(b) prior to the Control Time or Effective Time, as the case may be.
(iii) If any such action is brought against any of the Indemnification Parties and such Indemnification Parties notify the Indemnifying Parties of its commencement, the Indemnifying Parties will be entitled to participate in and, to the extent that they elect by delivering written notice to such Indemnification Parties promptly after receiving notice of the commencement of the action from the Indemnification Parties, to assume the defense of the action and after notice from the Indemnifying Parties to the Indemnification Parties of their election to assume the defense, the Indemnifying Parties will not be liable to the Indemnification Parties for any legal or other expenses of their counsel except as provided below. If the Indemnifying Parties assume the defense, the Indemnifying Parties shall have the right to settle such action without the consent of the Indemnification Parties; provided, however, that no Indemnifying Parties, in the defense of any such action shall, except with the consent of the Indemnification Parties, consent to entry of any judgment or enter into any settlement that (A) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnification Parties of a full, unconditional release from all liability with respect to such action, or (B) contains obligations of such Indemnification Party other than with respect to the payment of money.
(iv) The Indemnification Parties will have the right to employ their own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnification Parties unless (A) the employment of counsel by the Indemnification Parties has been authorized in writing by the Indemnifying Parties, (B) the Indemnification Parties have reasonably concluded (based on advice of counsel to the Indemnification Parties) that there may be legal defenses available to them that are different from or in addition to and inconsistent with those available to the Indemnifying Parties, (C) a conflict or potential conflict exists (based on advice of counsel to the Indemnification Parties) between the Indemnification Parties and the Indemnifying Parties (in which case the Indemnifying Parties will not have the right to direct the defense of such action on behalf of the Indemnification Parties) or (D) the Indemnifying Parties have not in fact employed counsel to assume the defense of such action within a reasonable time (not to exceed 30 days) after receiving notice of the commencement of the action from the Indemnification Parties, in each of which cases, the reasonable documented fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Parties and shall promptly be paid by each Indemnifying Party within 20 days of receipt by the Indemnifying Parties of notice and documentation that such fees and expenses are due and payable.
(v) Notwithstanding anything contained in this Section 6.6 to the contrary, the Indemnifying Parties shall not be obligated to advance any expenses or costs prior to receipt of (A) an undertaking by or on behalf of the Indemnification Party to repay any expenses advanced if it shall ultimately be determined that the Indemnification Party is not entitled to be indemnified against such expense pursuant to the last sentence of this Section 6(b) and (B) such other representations as may be required by law. It is understood that the Indemnifying Parties shall not, in connection with any Proceeding or Proceedings in the same jurisdiction, be liable for the reasonable documented fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all such Indemnification Parties unless (x) the employment of more than one counsel has been authorized in writing by the Indemnifying Parties, (y) any of the Indemnification Parties have reasonably concluded (based on advice of counsel to the Indemnification Parties) that there may be legal defenses available to them that are different from or in addition to and inconsistent with those available to other Indemnification Parties or (z) a conflict or potential conflict exists (based on advice of counsel to the Indemnification Parties) between any of the Indemnification Parties and the other Indemnification Parties, in each case of which the Indemnifying Parties shall be obligated to pay the reasonable documented fees and expenses of such additional counsel or counsels on the same basis as provided in the immediately preceding sentence.
(vi) Notwithstanding anything to the contrary set forth in this Agreement, the Indemnifying Parties (A) shall not be liable for any settlement effected without their prior written consent and (B) shall not have any obligation hereunder to any Indemnification Party to the extent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnification is prohibited by applicable law. In the event of a final and non-appealable determination by a court that any payment of expenses is prohibited by applicable law, the Indemnification Parties shall promptly refund to the Indemnifying Parties the amount of all such expenses theretofore advanced pursuant hereto.
(vii) In no event shall the Indemnifying Parties be responsible for any losses, claims, liabilities, expenses, judgments, fines or amounts paid in settlement of (A) any Proceedings arising due to violations of Section 16 under the Exchange Act or (B) for which the Indemnification Party has previously been reimbursed from other sources.
(c) For a period of six (6) years after from the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPTCompany’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to current directors’ and officers’ liability insurance in an amount covering those trustees, directors and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to officers who are currently covered by the Effective Time at a cost that is reasonable and customary for tail insurance policies with a Company’s directors’ and officers’ liability insurance policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”Company Insured Parties“) (a copy of which has been heretofore delivered to Parent) (or, in lieu of maintaining such insurance, cause coverage to be provided under any policy maintained for the benefit of Parent or any of its subsidiaries or otherwise obtained by Parent, so long as the terms thereof are no less advantageous to the intended beneficiaries thereof than those of the Company’s policy). ; provided, however, that in no event shall Parent shall use commercially reasonable efforts be required to obtain competitive quotes (from insurance providers with comparable ratings) expend in excess of 200% of the annual premiums currently paid by the Company for such insurance, and; provided, further, that if the annual premiums of such insurance coverage in an effort exceed such amount, Parent shall be obligated to reduce obtain a policy with the greatest coverage available for a cost thereofnot exceeding such amount. In lieu of the foregoing, Parent may purchase six-year “tail” coverage covering acts or omissions prior to the Effective Time on substantially similar terms to the existing policy of the Company.
(ed) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 6.6 shall survive the consummation of the Mergers and Merger, is intended to be for benefit the benefit ofIndemnified Parties, and shall be enforceable by, binding on all successors and assigns of Parent and the Indemnified Parties referred to herein.
(f) Surviving Company. If the Parent or Subsidiary or any of its respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each case, to the extent necessary, proper provision shall be made so that such case the successors and assigns of the Parent such entity shall assume the obligations set forth in this Section 6.116.6, which obligations are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each director, trustee and officer covered hereby.
Appears in 3 contracts
Sources: Merger Agreement (Istar Financial Inc), Merger Agreement (Istar Financial Inc), Merger Agreement (Istar Financial Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time Closing, Impax and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relatesAmneal shall, Parent shall jointly and severally, indemnify, defend and hold harmless harmless, and provide advancement of expenses to, the present current and former directors and officers directors of CPTImpax, Inuvo Holdco and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Impax Indemnified Directors and OfficersParties”) against all losses, claims, damages, expenses and the current and former members of the Amneal Board and officers of Amneal and its Subsidiaries (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b“Amneal Indemnified Parties”), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law, including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL or the DLLCA adopted after the date of this Agreement that increase the extent to which a corporation or limited liability company may indemnify its officers and directors or any Impax Indemnified Party or Amneal Indemnified Party, from and against any and all costs or expenses (including attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur at or prior to the Closing (including for acts or omissions occurring in connection with the approval of this Agreement, the performance of Impax’s, Holdco’s and Amneal’s obligations under this Agreement and the consummation of the Transactions or arising out of or pertaining to the Transactions) whether asserted or claimed prior to, at or after the Closing.
(cb) Each of Parent, CPT It is understood and Inuvo agrees, agreed that all rights to indemnification, expense advancement and exculpation and advancement of expenses now existing in favor of any Indemnified Directors each present and Officers or any current or former director, officer and employee of CPTImpax, Inuvo Holdco, Amneal or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporationthe Impax Charter, CPT Impax Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (the Amended and Restated Holdco Charter, the Amended and Restated Holdco Bylaws, Amneal LLC Operating Agreement or the charter or organizational documents of CPT’s the Subsidiaries of Impax, Holdco or Inuvo’s Subsidiaries) shall Amneal, in each case as in effect on the date of this Agreement, or under any other agreements in effect on the date of this Agreement (true, correct and complete copies of which have been delivered, as applicable, by Impax and Amneal to Amneal and Impax, respectively), will survive the Mergers Transactions and shall Impax, Holdco and Amneal will (i) continue in full force and effect in accordance with their terms. For for a period of at least six (6) years from the Closing Date (or, if any relevant claim is asserted or made within such six (6) year period, until final disposition of such claim) such rights to indemnification and expense advancement and (ii) perform, in a timely manner, Impax’s, Holdco’s or Amneal’s or their respective Subsidiaries’ obligations with respect thereto. Any claims for indemnification and expense advancement pursuant to such agreements and organizational documents as to which Impax, Holdco or Amneal has received written notice before the sixth (6th) anniversary of the Closing Date will survive, whether or not those claims will have been finally adjudicated or settled, and no action taken during such period may be deemed to diminish the obligations set forth in this Section 6.05(b).
(c) For at least six (6) years after the Effective TimeClosing, Parent Impax shall maintain (and Holdco shall cause Impax to maintain) in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPTImpax’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to current directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts respect of acts or events that occurred on omissions occurring at or prior to the Effective Time at a cost that is reasonable Closing (including for acts or omissions occurring in connection with the approval of this Agreement and customary for tail insurance policies with a the consummation of the Transactions) covering the Impax Indemnified Parties currently covered by Impax’s directors’ and officers’ liability insurance policy insurer reasonably acceptable (a true and complete copy of which has been heretofore made available to CPT Amneal), on terms with respect to such coverage and Inuvo (amount no less favorable than those of such policy in effect on the “D&O Insurance”). Parent shall use commercially reasonable efforts date of this Agreement; provided, however, that Impax may substitute therefor a tail policy or policies of Impax containing terms with respect to obtain competitive quotes (from insurance providers with comparable ratings) for coverage and amount no less favorable to such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Impax Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable LawParties. The obligations under covenants contained in this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is 6.05(c) are intended to be for the benefit of, and shall be enforceable by, each of the Impax Indemnified Parties referred to herein.
(f) If the Parent or any of its and their respective successors or assigns (i) consolidates with or merges into any other Person heirs and legal Representatives, and shall not be deemed exclusive of any other rights to which an Impax Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
(d) For at least six (6) years after the continuing Closing, Amneal shall maintain (and Holdco shall cause Amneal to maintain) in effect Amneal’s current directors’ and officers’ liability insurance in respect of acts or surviving corporation omissions occurring at or entity prior to the Closing (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Transactions) covering the Amneal Indemnified Parties currently covered by Amneal’s directors’ and officers’ liability insurance policy (a true and complete copy of which has been heretofore made available to Impax), on terms with respect to such coverage and amount no less favorable than those of such consolidation policy in effect on the date of this Agreement; provided, however, that Impax may substitute therefor a tail policy or merger or (ii) transfers or conveys all or substantially all policies of its properties Amneal containing terms with respect to coverage and assets amount no less favorable to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth such Amneal Indemnified Parties. The covenants contained in this Section 6.116.05(d) are intended to be for the benefit of, and shall be enforceable by, each of the Amneal Indemnified Parties and their respective heirs and legal Representatives, and shall not be deemed exclusive of any other rights to which an Amneal Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise.
Appears in 2 contracts
Sources: Business Combination Agreement (Atlas Holdings, Inc.), Business Combination Agreement (Impax Laboratories Inc)
Indemnification; Insurance. (a) The provisions with respect 17.1 If ▇▇▇▇▇ is made a party or is threatened to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed made a party to or otherwise modified for a period of six (6) years after the Effective Time is involved in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding suit or investigationproceeding, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers (a “proceeding”), by reason of the fact that he is or may become was an employee (which term includes officer, director, agent and any other capacity) of the Company or is or was serving at the request of the Company as an employee or agent of another corporation or of a party partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as an employee or agent or in any other capacity while serving as an employee or agent, ▇▇▇▇▇ shall be indemnified and held harmless by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case Company to the fullest extent permitted authorized by applicable Law.
law, against all expense, liability and loss (cincluding, but not limited to, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amount paid or to be paid in settlement) Each incurred or suffered by ▇▇▇▇▇ in connection therewith and such indemnification shall continue as to ▇▇▇▇▇ after he has ceased to be a director, officer, employee or agent and shall inure to the benefit of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs▇▇▇▇▇’▇ heir, executors and administrators; provided, however, that the Company shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by ▇▇▇▇▇ (other than a proceeding to enforce this Section 17) only if such proceeding (or part thereof) was authorized directly or indirectly by the Board. The right to indemnification conferred in this Section shall be a contract right and shall include the right to be, promptly upon request, paid by the Company the expenses incurred in defending any Indemnified Directors such proceeding in advance of its final disposition subject to, if and Officersonly if required by the Business Corporation Law of the Commonwealth of Pennsylvania, delivery to the “Indemnified Parties”) Company of an undertaking, by or on behalf of ▇▇▇▇▇, to repay all amounts so advanced if it shall ultimately be determined that ▇▇▇▇▇ is not entitled to be indemnified under this Section 17.1 or otherwise.
17.2 The indemnification provided by this Section shall not be limited or exclude any rights, indemnities or limitations of liability to which ▇▇▇▇▇ may be entitled, whether as provided in CPT a matter of law, under the Certificate of Incorporation, CPT BylawsBy-laws of the Company, Inuvo Articles by agreement, vote of Incorporation the stockholders or Inuvo Bylaws disinterested directors of the Company or otherwise.
17.3 ▇▇▇▇▇, in seeking indemnification under this Agreement (the “Indemnitee”), shall give the other party or parties (the organizational documents “Indemnitor”) prompt written notice of CPTany claim, suit or demand that the Indemnitee believes will give rise to indemnification under this Agreement; provided, however, that the failure to give such notice shall not affect the liability of the Indemnitor under this Agreement unless the failure to give such notice materially and adversely affects the ability of the Indemnitor to defend itself against or to cure or mitigate the damages. Except as hereinafter provided, the Indemnitor shall have the right (without prejudice to the right of the Indemnitee to participate at its expense through counsel of its own choosing) to defend and to direct the defense against any such claim, suit or demand, at the Indemnitor’s or Inuvo’s Subsidiaries) shall survive the Mergers expense and shall continue in full force with counsel chosen jointly by Indemnitor and effect in accordance with their terms. For a period of six (6) years after the Effective TimeIndemnitee, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and right to settle or compromise any such indemnification agreements of CPTclaim, Inuvo suit or any of their respective Subsidiaries demand; provided, however, that the Indemnitor shall not, with the Indemnified Parties and Indemnitee’s written consent, which shall not be unreasonably withheld, settle or compromise any claim or consent to amendany entry of judgment. The Indemnitee shall, repeal or otherwise modify such provisions at the Indemnitor’s expense, cooperate in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect defense of any actionsuch claim, suitsuit or demand. If the Indemnitor, proceeding within a reasonable time after notice of a claim fails to defend the Indemnitee, the Indemnitee shall be entitled to undertake the defense, compromise or investigation pending settlement or asserted or such claim made or threatened within such period shall continue until at the final disposition or resolution thereofexpense of and for the account and risk of the Indemnitor.
(d) Prior to 17.4 ▇▇▇▇▇ shall be covered during the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period entire term of six (6) years from the Effective Time with respect to directors’ this Agreement and officers’ thereafter by Officer and Director liability insurance in an amount amounts and scope reasonably acceptable on terms similar to CPT and Inuvo for claims arising from facts that afforded to other executives and/or directors of the Company or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for its affiliates, which such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under paid by the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to hereinCompany.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 2 contracts
Sources: Employment Agreement (Atlas Energy, L.P.), Employment Agreement (Atlas Energy, L.P.)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for For a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to -------------------------- the Effective Time, unless otherwise required by applicable Law (the Parent shall, and provided that all rights of indemnificationshall cause the Surviving Corporation to, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors officers, directors, employees and agents of CPT, Inuvo the Company and their respective Subsidiaries its subsidiaries (collectively, together with their respective heirsthe "Indemnified Parties") from and against, executors and administratorspay or reimburse the Indemnified Parties for, the “Indemnified Directors and Officers”) against all losses, obligations, expenses, claims, damages, expenses damages or liabilities (including reasonable attorneys’ fees whether or not resulting from third-party claims and including any interest, penalties, out-of-pocket expenses and attorneys’ fees or other ' fees incurred in the investigation or defense of any of the same or in asserting any of their rights hereunder) with respect to enforce actions or omissions arising out of such individuals' services as officers, directors, employees or agents of the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo Company or any of their respective Subsidiaries, and arising out its subsidiaries or as trustees or fiduciaries of actual any plan for the benefit of employees of the Company or alleged events, actions or omissions any of its subsidiaries occurring or alleged to have occurred at on or prior to the Effective TimeTime (including, without limitation, the transactions contemplated by this Agreement) to the full extent permitted or required under applicable law and, in each the case of indemnification by the Surviving Corporation, to the fullest extent permitted under the provisions of the Company Certificate of Incorporation and the Company By-Laws, each as in effect at the date hereof (which provisions shall not be amended in any manner which adversely affects any Indemnified Party, for a period of six years), including provisions relating to advances of expenses incurred in the defense of any action or suit; provided that in the -------- event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of each such claim shall continue until final disposition of such claim. Without limiting the foregoing, in any case in which approval by applicable Lawthe Surviving Corporation is required to effectuate any indemnification, the Parent shall cause the Surviving Corporation to direct, at the election of the Indemnified Party, that the determination of any such approval shall be made by independent counsel selected by the Indemnified Party.
(b) Any Indemnified Party wishing to claim indemnification under Section 6.9(a) shall provide notice to the Parent promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and the Indemnified Party shall permit the Parent (at the Parent's expense) to assume the defense of any claim or any litigation resulting therefrom; provided that (i) counsel for the Parent who shall conduct the -------- - defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party, and the Indemnified Party may participate in such defense at such Indemnified Party's expense, and (ii) the omission by any Indemnified Party -- to give notice as provided herein shall not relieve the Parent of its indemnification obligation under this Agreement except to the extent that such omission results in a failure of actual notice to the Parent and the Parent is materially damaged as a result of such failure to give notice. The Parent shall not, in the defense of any such claim or litigation, except with the consent of the Indemnified Party, consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. In the event that the Parent does not accept the defense of any matter as above provided, or counsel for the Parent advises that there are issues which raise conflicts of interest between the Parent or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Parent or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided that the Parent shall not be liable for any -------- settlement effected without its prior written consent. In any event, the Parent and the Indemnified Parties shall cooperate in the defense of any action or claim subject to this Section 6.9 and, subject to the Confidentiality Agreement, the records of each shall be available to the other with respect to such defense.
(c) Each of Parent, CPT and Inuvo agrees, that all rights The Parent will cause to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For be maintained for a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of less than six (6) years from the Effective Time with respect to the Company's current directors’ ' and officers’ liability ' insurance in an amount and scope reasonably acceptable indemnification policy to CPT and Inuvo the extent that it provides coverage for claims arising from facts or events that occurred on or occurring prior to the Effective Time at a cost that is reasonable ("D&O Insurance") for all persons who are directors and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable officers of the Company on the date of this Agreement, so long as the annual premium therefor would not be in excess of 150% of the last annual premium paid prior to CPT and Inuvo the date of this Agreement (the “D&O Insurance”"Maximum Premium"). ; provided, however, that if the annual premium therefor would -------- ------- exceed the Maximum Premium, the Parent shall use commercially reasonable efforts purchase as much coverage as is available for the Maximum Premium; provided, further, that the Parent may, in -------- ------- lieu of maintaining such existing D&O Insurance as provided above, cause coverage to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or provided under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be policy maintained for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If of the Parent or any of its respective successors subsidiaries or assigns any policy specifically obtained for this purpose, so long as the terms thereof are no less advantageous to the intended beneficiaries thereof than the existing D&O Insurance for a period of not less than six (i6) consolidates with years from the Effective Time. If the existing D&O Insurance expires, is terminated or merges into any other Person and shall not canceled during such six (6) year period, the Parent will obtain as much D&O Insurance as can be obtained for the continuing or surviving corporation or entity remainder 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 case, period for an annualized premium equal to the extent necessaryMaximum Premium, proper provision shall be made so that on terms and conditions no less advantageous to the successors and assigns of covered persons than the Parent shall assume the obligations set forth in this Section 6.11existing D&O Insurance.
Appears in 2 contracts
Sources: Merger Agreement (Prudential Mortgage Capital Co LLC), Merger Agreement (Prudential Mortgage Capital Co LLC)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Cara shall indemnify, defend and hold harmless the present Enteris and former officers directors of CPTits Affiliates, Inuvo and their respective Subsidiaries directors, officers, employees and agents, and their respective successors, heirs and assigns (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersEnteris Indemnitees”) ), against all losses, claimsliabilities, damages, losses and expenses (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon the Enteris Indemnitees, or any of them, as a direct result of claims, suits, actions, demands or proceedings (“Claims”) brought by a Third Party against Enteris Indemnitees, including, personal injury and product liability claims (collectively, “Enteris Indemnity Claims”), to the extent arising out of (i) the Development, Manufacture and/or Commercialization of any Product by Cara or any of its Affiliates, Sub-licensees and/or agents in the Territory, including warranty claims or Product recalls; (ii) any attorneys’ fees or other fees incurred to enforce the provisions breach of this Section 6.11(b)Agreement by Cara or any of its Affiliates, Liabilities Sub-licensees or amounts that are paid in settlement ofagents; (iii) any tort claims for the death, personal injury, or otherwiseillness of any person or claims relating to any damage to any property related in any way to the rights granted under this Agreement or activities conducted by or on behalf of Cara, its Affiliates or Sub-licensees and their respective directors, officers, employees and agents, in connection with any claimthis Agreement; except, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessarysuch Claim or Loss is caused by a breach by Enteris of its representations, proper provision warranties, covenants or obligations in this Agreement, or the gross negligence or willful misconduct of any Enteris Indemnitee; or (iv) the gross negligence or willful misconduct of any Cara Indemnitee, or agent of Cara; but excluding any Enteris Indemnity Claim or Losses to the extent that Enteris has an obligation to indemnify Cara Indemnitees pursuant to Section 7.5(b), as to which Claim or Losses each Party shall be made so indemnify the other to the extent of their respective liability for such Losses.
(b) Enteris shall indemnify, defend and hold harmless Cara, its Affiliates and Sub-licensees, and their respective directors, officers, employees and agents, and their respective successors, heirs and assigns (collectively, the “Cara Indemnitees”), against all Losses incurred by or imposed upon the Cara Indemnitees, or any of them, as a direct result of claims, suits, actions, demands or proceedings brought by a Third Party against Cara Indemnitees, including personal injury and product liability claims (collectively, “Cara Indemnity Claims”) to the extent arising out of (i) any breach of this Agreement by Enteris or any of its Affiliates or agents, except, in each case, to the extent such Claim is caused by a breach by Cara of its representations, warranties, covenants or obligations in this Agreement, or the gross negligence or willful misconduct of any Cara Indemnitee; or (ii) the gross negligence or willful misconduct of any Enteris Indemnitee; or (iii) infringement or violation of Third Party intellectual property rights to the extent due to the use or practice of the Licensed Technology; but excluding any Cara Indemnity Claim or Losses to the extent that Cara has an obligation to indemnify any Enteris Indemnitees pursuant to Section 7.5(a) as to which Claims or Losses each Party shall indemnify the other to the extent of their respective liability for such Losses.
(c) Upon receipt of notice of any Loss, or of any claim, suits, action, demand or proceeding, that may give rise to a right of indemnity from the other Party hereto, the Party seeking indemnification (the “Indemnified Party”), either on behalf of itself or, as applicable, for a member of its group entitled to such indemnity (an “Indemnified Member”), shall give prompt written notice to the other Party (the “Indemnifying Party”) of the Loss (or related claim, action, or allegation) for which indemnification is sought (a “Claim”). Provided that the successors Indemnifying Party is not contesting its obligation to indemnify as to the noticed Claim under this Article 7, the Indemnified Party (and assigns the Indemnified Member, as applicable) shall permit the Indemnifying Party to control any the defense of such Claim and any litigation relating to such Claim and all related Losses and the disposition of such Claim and Losses. The Indemnifying Party shall (i) act reasonably and in good faith with respect to all matters relating to the settlement or disposition of such Claim and all related Losses as the settlement or disposition relates to such Indemnified Party and (ii) not settle or otherwise resolve such Claim and related Losses in a way that would adversely impact the Indemnified Party (or the Indemnified Member, as applicable) without the prior written consent of such Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Each Indemnified Party (and all applicable Indemnified Members) shall cooperate with the Indemnifying Party in its defense of any such Claim and related Losses in all reasonable respects and shall have the right to be present in person or through counsel at all legal proceedings with respect to such Claim and Loss. If the Indemnifying Party does not assume and conduct the defense of the Parent Claim and Loss as provided above, (a) the Indemnified Party may defend against, consent to the entry of any reasonable judgment, or enter into any reasonable settlement with respect to such Loss in any manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (b) the Indemnifying Party shall assume remain responsible to indemnify the obligations set forth Indemnified Party as provided in this Section 6.11Article 7.
Appears in 2 contracts
Sources: Non Exclusive License Agreement (SWK Holdings Corp), Non Exclusive License Agreement (Cara Therapeutics, Inc.)
Indemnification; Insurance. (a) The provisions Notwithstanding anything to the contrary in Section 2.04, Parent and Purchaser agree that all rights to indemnification existing in favor, and all limitations on the personal liability of, each present and former director, officer, employee or agent of the Company or any of its subsidiaries or a director, officer, employee, agent or trustee of any employee benefit plan for employees of the Company or any of its subsidiaries, and each person who is or was then serving in any such capacity (or any person who is or was then serving any other corporation or entity in any such capacity at the request of the Company) (individually, an "Indemnified Party" and collectively, the "Indemnified Parties") provided for in the Company's Amended and Restated Certificate of Incorporation, as amended, or Amended and Restated By-Laws or similar organizational documents of any Company subsidiary as in effect on the date of this Agreement with respect to indemnification, advancement of expenses matters occurring prior to the Effective Time shall survive the Merger and exculpation contained shall continue in the Parent Certificate of Incorporation full force and Parent Bylaws shall not be amended, repealed or otherwise modified effect for a period of not less than six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to from the Effective Time; provided, unless otherwise required by applicable Law (and provided however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim for indemnification for losses, damages or liabilities of any kind or nature incurred (an "Indemnifiable Claim") which is asserted or made within such six-year period shall continue until the final disposition of such claim). Parent hereby agrees that it shall indemnify any Indemnified Party in respect of any Indemnifiable Claim to the extent that the Company does not promptly indemnify such party for an Indemnifiable Claim.
(b) From Parent and after the Effective Time and until Surviving Corporation shall cause to be put into effect by the expiration of any applicable statutes of limitation Completion of the underlying claim Offer, with a carrier satisfactory to which the indemnification relates, Parent shall indemnify, defend and hold harmless Board of the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, Company on the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions date of this Section 6.11(b)Agreement, Liabilities directors' and officers' liability insurance covering each Indemnified Party who is currently covered by the Company's directors' and officers' liability insurance with respect to claims arising from facts or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to events which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, which insurance shall remain in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For for a period of at least six (6) years after the Effective Time, Parent Time and which shall maintain be no less favorable than such insurance maintained in effect by the indemnificationCompany on the date hereof in terms of coverage and amounts; provided that, exculpation in no event shall the Surviving Company be required to make annual premium payments for such insurance in excess of $150,000.
(c) This Section 6.06 shall survive the closing of the transactions contemplated hereby, is intended to benefit the Company, the Surviving Corporation and advancement each of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties (each of whom shall be entitled to enforce this Section 6.06 against Parent or the Surviving Corporation, as the case may be) and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect shall be binding on all successors and assigns of Parent and the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofSurviving Corporation.
(d) Prior to In the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from event the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts Surviving Corporation or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its their respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Parent shall Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.116.06.
Appears in 2 contracts
Sources: Merger Agreement (Telesciences Inc /De/), Merger Agreement (Edb 4tel Acquisition Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnificationACI shall, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation from and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons Company shall, indemnify, defend and hold harmless each person who is now, or has been at any time prior to through the Effective Time were entitled to indemnification, advancement date of expenses this Agreement or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or who becomes prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights an officer, director or employee of indemnification, advancement ACI or any of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective its Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”"ACI INDEMNIFIED PARTIES") against (i) all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees costs, expenses, liabilities or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities judgments or amounts that are paid in settlement of, with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of or otherwise, in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative investigation based in whole or investigative and including all appeals thereof to which any Indemnified Directors and Officers in part on or arising in whole or in part out of the fact that such person is or may become was a party to by virtue director, officer or employee of his or her service as a present or former director or officer of CPT, Inuvo ACI or any of their respective its Subsidiaries or is or was a plan fiduciary serving at the request of ACI or any of its Subsidiaries, and arising out of actual whether pertaining to any matter existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective TimeTime and whether asserted or claimed prior to, or at or after the Effective Time ("ACI INDEMNIFIED LIABILITIES") and (ii) all ACI Indemnified Liabilities based in each case whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby to the fullest full extent a corporation is permitted under the DGCL to indemnify its own directors, officers and employees (and the Company will pay expenses in advance of the final disposition of any such action or proceeding to each ACI Indemnified Party to the full extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor law upon receipt of any Indemnified Directors and Officers or any current or former employee undertaking contemplated by Section 145(e) of CPTthe DGCL). Without limiting the foregoing, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, in the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and event that any such indemnification agreements of CPTclaim, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending is brought against any ACI Indemnified Party (whether arising before or asserted after the Effective Time), (i) the ACI Indemnified Parties may retain counsel satisfactory to them and ACI (or claim made them and the Company after the Effective Time), (ii) ACI (or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to after the Effective Time, Parentthe Company) shall pay all reasonable fees and expenses of such counsel for the ACI Indemnified Parties promptly as statements therefor are received, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six and (6iii) years from ACI (or after the Effective Time Time, the Company) will use all reasonable efforts to assist in the vigorous defense of any such matter, provided that neither ACI nor the Company shall be liable for any settlement of any claim effected without its written consent, which consent, however, shall not be unreasonably withheld. Any ACI Indemnified Party wishing to claim indemnification under this Section 4.10(a), upon learning of any such claim, action, suit, proceeding or investigation, shall notify ACI or, after the Effective Time, the Company (but the failure so to notify shall not relieve ACI or the Company from any liability which it may have under this Section 4.10(a) except to the extent such failure prejudices such party), and shall deliver to ACI (or after the Effective Time, the Company) the undertaking contemplated by Section 145(e) of the DGCL. The ACI Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more ACI Indemnified Parties.
(b) For a period of at least five years after the Effective Time, the Company shall cause to be maintained in effect policies of directors’ ' and officers’ ' liability insurance of the type maintained by ACI as of the date hereof in an aggregate coverage amount not less than $20,000,000 and scope reasonably acceptable including coverage with respect to CPT and Inuvo for claims arising from facts or events that which occurred on or prior to before the Effective Time at a cost to the extent available; provided, that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable in no event shall the Company be required to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts expend, in order to obtain competitive quotes (from insurance providers with comparable ratings) for such maintain or procure insurance coverage pursuant to this Section 4.10(b), any amount per annum in an effort to reduce excess of 200% of the cost thereofannual amount expended by ACI as of the date hereof.
(ec) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries provisions of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is 4.10 are intended to be for the benefit of, and shall be enforceable by, the each ACI Indemnified Parties referred to hereinParty and his or her heirs and representatives.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 2 contracts
Sources: Merger Agreement (Ashland Inc), Merger Agreement (Ashland Coal Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at At or prior to the Effective Time, unless otherwise required by applicable Law Stellar shall purchase past acts and extended reporting period insurance coverage under its (i) current directors and provided officers insurance policy, (ii) employment practices liability insurance policy and (iii) bankers professional insurance policy (provided, that all rights Stellar may substitute therefor policies with a substantially comparable insurer of indemnificationat least the same coverage and amounts containing terms and conditions which are no less advantageous to the insured for each of the foregoing), advancement of expenses and exculpation in each case that (x) provides coverage with respect of any claim asserted to claims arising from facts or made within such six-events which occurred at the Effective Time or during at least the six (6) year period immediately preceding the Effective Time (including the transactions contemplated by this Agreement) and (y) is in effect for a period of at least six (6) years from and after the Effective Time; provided, however, that Stellar shall continue until not expend, on an annual basis, for such extended insurance coverage an amount in excess of 300% of the final disposition current annual premium paid as of the date hereof by Stellar for such claim)insurance.
(b) From and after the Effective Time and until Time, the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Surviving Corporation shall indemnify, defend indemnify and hold harmless and shall advance expenses as incurred, in each case to the extent (subject to applicable law) such persons are indemnified as of the date of this Agreement by Stellar pursuant to the Stellar Articles, the Stellar Bylaws, the governing or organizational documents of any Subsidiary of Stellar and any indemnification agreements in existence as of the date hereof and disclosed in Section 6.7(b) of the Stellar Disclosure Schedule, each present and former officers directors director or officer of CPTStellar and its Subsidiaries (in each case, Inuvo and their respective Subsidiaries when acting in such capacity) (collectively, together with their respective heirs, executors and administrators, the “Stellar Indemnified Directors and OfficersParties”) against all losses, claims, damages, any costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bfees), Liabilities judgments, fines, losses, damages or amounts that are paid in settlement of, or otherwise, liabilities incurred in connection with any threatened or actual claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers investigative, whether arising before or after the Effective Time, arising out of the fact that such person is or may become was a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo Stellar or any of their respective Subsidiaries, its Subsidiaries and arising out of actual pertaining to matters existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, including the transactions contemplated by this Agreement; provided, that in each the case of advancement of expenses the Stellar Indemnified Party to the fullest extent permitted by applicable Lawwhom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such Stellar Indemnified Party is not entitled to indemnification.
(c) Each The provisions of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) this Section 6.7 shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is are intended to be for the benefit of, and shall be enforceable by, the each Stellar Indemnified Parties referred to herein.
(f) Party and his or her heirs and representatives. If the Parent Surviving Corporation or any of its respective successors or assigns (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 or (ii) merger, transfers or conveys all or substantially all of its properties and assets or deposits to any Personother entity or engages in any similar transaction, then, and then in each case, to the extent necessary, Surviving Corporation will cause proper provision shall to be made so that the successors and assigns of the Parent shall Surviving Corporation will expressly assume the obligations set forth in this Section 6.116.7.
(d) The obligations of the Surviving Corporation, Prosperity and Stellar under this Section 6.7 shall not be terminated or modified in a manner so as to adversely affect any Stellar Indemnified Party or any other person entitled to the benefit of this Section 6.7 without the prior written consent of the affected person.
Appears in 2 contracts
Sources: Merger Agreement (Prosperity Bancshares Inc), Merger Agreement (Stellar Bancorp, Inc.)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time Time, Parent shall, and until shall cause the expiration Surviving Corporation to, indemnify and hold harmless, to the fullest extent permitted under applicable Law and required by the certificate of any applicable statutes of limitation incorporation or bylaws (or comparable organizational documents) of the underlying claim Company and its Subsidiaries as in effect as of the date of this Agreement (and the Surviving Corporation shall also advance expenses as incurred to which the indemnification relatesfullest extent permitted under applicable Law and required by the certificate of incorporation or bylaws (or comparable organizational documents) of the Company and its Subsidiaries as in effect as of the date of this Agreement, Parent shall indemnifyprovided that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), defend and hold harmless the each present and former officers directors director and officer of CPT, Inuvo the Company and their respective its Subsidiaries (each an “Indemnified Party” and collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersParties”) ), against all losses, claims, damages, any costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bfees), Liabilities judgments, fines, losses, claims, damages or amounts that are paid in settlement of, or otherwise, liabilities incurred in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative investigative, arising out of or related to (i) their service as such or their service at the request of the Company or its Subsidiaries as a director, officer, employee, member, trustee or fiduciary of any other corporation, partnership or joint venture, trust, employee benefit plan or other enterprise, or (ii) services performed by such Indemnified Parties at the request of the Company or its Subsidiaries, in each case, at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including with respect to (A) the Merger and including all appeals thereof any other transactions contemplated by this Agreement, and (B) actions to which enforce this Section 6.11 or any other indemnification or advancement right of any Indemnified Directors Party.
(b) Parent and Officers is Merger Sub agree that all rights to exculpation or may become a party indemnification for acts or omissions occurring at or prior to by virtue the Effective Time existing as of his or her service as a present or former director or officer the date of CPT, Inuvo this Agreement in favor of the Indemnified Parties or any of their predecessors and the heirs, executors, trustees, fiduciaries and administrators of such Indemnified Parties, as provided in the Company’s or each of its Subsidiaries’ respective Subsidiariescertificates of incorporation or bylaws (or comparable organizational documents) or in any Contract, in each case, as in effect as of the date of this Agreement and arising out provided to Parent, shall survive the Merger and the transactions contemplated by this Agreement and shall continue in full force and effect in accordance with their terms. After the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) fulfill and honor such obligations to the maximum extent that the Company or applicable Subsidiary would have been permitted to fulfill and honor them by applicable Law. In addition, for six years following the Effective Time, Parent shall and shall cause the Surviving Corporation to cause the Charter and the Bylaws to contain provisions with respect to indemnification and exculpation in respect of actual acts or omissions occurring or alleged eventsto have occurred at or prior to the Effective Time that are at least as favorable as the indemnification and exculpation provisions contained in the certificates of incorporation and bylaws of the Company as of the date of this Agreement, actions except as required by applicable Law. During such six-year period or such period in which an Indemnified Party is asserting a claim for indemnification pursuant to this Section 6.11, whichever is longer, such provisions shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights or protections thereunder of any such Indemnified Party in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted except as required by applicable Law.
(c) Each Parent shall cause the Surviving Corporation as of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect Time to obtain and fully pay the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain premium for “tail” insurance policies with for the extension of (i) the directors’ and officers’ liability coverage of the Company’s and its Subsidiaries’ existing directors’ and officers’ insurance policies, (ii) the Company’s and its Subsidiaries’ existing fiduciary liability insurance policies and (iii) the Company’s and its Subsidiaries’ existing employment practices liability insurance policies, in each case, for a claims reporting or discovery period of at least six (6) years from and after the Effective Time (the “Tail Period”) from one or more insurance carriers with the same or better credit rating as the Company’s and its Subsidiaries’ insurance carrier as of the date of this Agreement (or, if no such policies are available from insurance carriers with such credit rating, from insurance carriers with the next-highest credit rating then capable of providing such policies) with respect to directors’ and officers’ liability insurance, fiduciary liability and employment practices liability insurance (collectively, the “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as the Company’s and its Subsidiaries’ existing policies with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director, officer or principal of the Company or any of its Subsidiaries by reason of his or her serving in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts such capacity that existed or events that occurred on at or prior to the Effective Time at (including in connection with this Agreement or the transactions or actions contemplated hereby); provided that in no event shall Parent or the Surviving Corporation be required to expend for such “tail” insurance policies an aggregate amount in excess of 300% of the annual premium paid by the Company for the calendar year immediately preceding the date of this Agreement (such 300% amount, the “Maximum Premium”); provided, further, that if the aggregate amount of such “tail” insurance policies exceeds the Maximum Premium, the Surviving Corporation shall obtain policies with the greatest coverage available for a cost not exceeding the Maximum Premium. If the Surviving Corporation for any reason does not obtain such “tail” insurance policies, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for the Tail Period the D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and limits of liability that is reasonable are at least as favorable to the insureds as provided in the Company’s and customary its Subsidiaries’ existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for tail insurance the Tail Period with terms, conditions, retentions and limits of liability that are at least as favorable to the insureds as provided in the Company’s and its Subsidiaries’ existing policies as of the date of this Agreement; provided that in no event shall Parent or the Surviving Corporation be required to expend for all such comparable D&O Insurance an annual premium amount in excess of 150% of the annual premium paid by the Company for the calendar year immediately preceding the date of this Agreement; provided, further, that if the annual premiums of such comparable D&O Insurance for any given year exceeds such applicable amount, the Surviving Corporation shall obtain policies with the greatest coverage available for a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for cost not exceeding such insurance coverage in an effort to reduce the cost thereofapplicable amount.
(ed) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries provisions of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers Closing and is are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, and nothing in this Agreement shall affect, and the rights of each Indemnified Parties referred to herein.
(f) If Party under this Section 6.11 shall be in addition to, any indemnification rights that any such Indemnified Party may have under the Parent certificates of incorporation or bylaws of the Company or any of its Subsidiaries or any Contract or applicable Law. Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 6.11 shall not be terminated, amended, waived or otherwise modified in such a manner as to adversely affect any Indemnified Party without the consent of such Indemnified Party. The obligations of the Surviving Corporation, Parent, and their respective Subsidiaries pursuant to this Section 6.11 are joint and several. The rights of the Indemnified Parties pursuant to this Section 6.11 will be in addition to, and not in substitution for, any other rights that such persons may have pursuant to (i) the Charter and Bylaws, (ii) the similar organizational documents of the Subsidiaries of the Company, (iii) any and all indemnification agreements entered into with the Company or any of its Subsidiaries made available to Parent, or (iv) applicable Law.
(e) In the event that Parent or the Surviving Corporation (or any of their respective successors or assigns (iassigns) consolidates shall consolidate or merge with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger merger, or transfers at least fifty percent (ii50%) transfers or conveys all or substantially all of its properties and assets to any other Person, then, and then in each case, to the extent necessary, case proper provision shall be made (to the extent such obligations are not otherwise transferred, assumed or assigned by operation of law) so that the continuing or surviving corporation or entity (or its successors and assigns or assigns, if applicable), or transferee of such assets, as the Parent case may be, shall assume the obligations set forth in this Section 6.11.
(f) Prior to the Closing, the Company shall (i) cooperate with Parent in good faith in connection with the renewal or extension of any of the Insurance Policies maintained by the Company or any of its Subsidiaries, (ii) use commercially reasonable efforts to consult with Parent regarding the renewal or extension of any of the Insurance Policies maintained by the Company or any of its Subsidiaries and (iii) keep Parent informed, on a reasonably current basis, of the status and terms of any renewed or extension of any of the Insurance Policies maintained by the Company or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Streamline Health Solutions Inc.), Merger Agreement (Streamline Health Solutions Inc.)
Indemnification; Insurance. (ai) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect Time, Parent shall, and shall cause the rights thereunder of Surviving Corporation to, indemnify and hold harmless to the persons fullest extent permitted under Applicable Law each person who is now, or has been at any time prior to the Effective Time were entitled to indemnificationdate hereof, advancement an officer, director, employee, trustee or agent of expenses the Company (or exculpation under any subsidiary or division thereof), including, without limitation, each person controlling any of the CPT Certificate of Incorporationforegoing persons (individually, an "Indemnified Party" and collectively, the CPT Bylaws"Indemnified Parties"), the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b' fees), Liabilities or judgments, fines, penalties and amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative investigation (and shall pay expenses for legal fees in advance of the final disposition of any such action or investigative and including all appeals thereof proceeding to which any each Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case Party to the fullest extent permitted under Delaware law, provided that the Indemnified Party agrees that, in the event that it is ultimately determined that such Indemnified Party is not entitled to the payment of such expenses, for any reason, such Indemnified Party shall reimburse Parent and the Surviving Corporation for such expenses paid in advance) arising out of or pertaining to acts or omissions, or alleged acts or omissions, by applicable Law.
(c) Each of Parentthem in their capacities as such, CPT whether commenced, asserted or claimed before the Effective Time and Inuvo agreesincluding, that all rights to indemnificationwithout limitation, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officersliabilities arising under the Securities Act, the “Exchange Act and state corporation laws in connection with the Merger; provided that the Parent and the Surviving Corporation shall pay for only one law firm (in addition to local counsel) for all Indemnified Parties”) as provided in CPT Certificate , unless the use of Incorporation, CPT Bylaws, Inuvo Articles one law firm for all Indemnified Parties would present such law firm with a conflict of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their termsinterest. For a period of six (6) years after the Effective Time, Parent shall maintain cause the Surviving Corporation to keep in effect the indemnification, exculpation and advancement of expenses Company's current provisions of CPT in its Certificate of Incorporation, CPT Bylaws, Inuvo Articles Incorporation and By-laws providing for exculpation of Incorporation or Inuvo Bylaws (director and the organizational documents officer liability and indemnification of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect fullest extent permitted under the DGCL. In the event of any actual or threatened claim, action, suit, proceeding or investigation pending in respect of such acts or asserted or claim made or threatened within omissions, Parent shall, and shall cause the Surviving Corporation to cooperate in the defense of any such period matter; provided, however, that the Parent and the Surviving Corporation shall continue until the final disposition or resolution thereofnot be liable for any settlement effected without their written consent (which consent shall not be unreasonably withheld).
(dii) Prior to From and after the Effective Time, ParentParent shall, CPT and/or Inuvo or shall obtain “tail” cause the Surviving Corporation to, maintain in effect for not less than 6 years, the current policies of directors' and officers' liability insurance maintained by the Company; provided that Parent may substitute therefor policies with a claims period of six (6) years from at least the Effective Time with same coverage and amounts containing terms and conditions that are no less advantageous in any material respect to directors’ and officers’ liability insurance the Indemnified Parties; provided, however, that in an amount and scope reasonably acceptable no event shall the Parent or the Surviving Corporation be required to CPT and Inuvo for claims arising from facts or events that occurred on or prior expend pursuant to this Section 5.2(b)(ii) more than the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (current annual premiums paid by the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) Company for such insurance coverage and, in an effort to reduce the event the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed coverage shall exceed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirsamount, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and the Surviving Corporation shall not be the continuing or surviving corporation or entity of purchase as much coverage as possible for 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 case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11amount.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Southern Mineral Corp), Merger Agreement (Amerac Energy Corp)
Indemnification; Insurance. (a) The provisions From and until the sixth anniversary of the Effective Time, Parent shall cause the Surviving Corporation to comply with respect to indemnificationall obligations of the Company in existence or in effect as of the date hereof, advancement of expenses and exculpation contained in the Parent under applicable Regulations, its Certificate of Incorporation Incorporation, bylaws or by contract, to indemnify, defend and Parent Bylaws shall not be amendedhold harmless, repealed and also advance expenses as incurred, to the fullest extent permitted under applicable Regulations to, each Person who is now or otherwise modified for a period of six (6) years after has been prior to the Effective Time in any manner that would adversely affect the rights thereunder of the persons date hereof or who at any time becomes prior to the Effective Time were entitled an officer or director of the Company or any Subsidiary of the Company (the “Indemnified Officers”) against all Losses arising out of or in connection with any Action based in whole or in part on or arising in whole or in part out of the fact that such Person is or was an officer or director of the Company or a Subsidiary of the Company, whether or not pertaining to indemnification, advancement of expenses any matter existing or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time and whether or not asserted or claimed prior to, at or after the Effective Time. The parties hereto intend, unless otherwise required to the extent not prohibited by applicable Law (law, that the indemnification provided for in this Section 5.9 shall apply without limitation to acts or omissions, other than illegal acts or acts of fraud, or alleged acts or omissions, other than illegal acts or acts of fraud, by the Indemnified Officers in their capacities as officers or directors, as the case may be, Parent hereby guarantees the payment and provided that all performance of the Surviving Corporation’s obligations in this Section 5.9. Each Indemnified Officer, and his or her heirs and legal representatives, is intended to be a third party beneficiary of this Section 5.9 and may specifically enforce its terms. This Section 5.9 shall not limit or otherwise adversely affect any rights any Indemnified Officer may have under any agreement with the Company or any Subsidiary of indemnification, advancement of expenses and exculpation in respect of the Company or under the Company’s or any claim asserted or made within such six-year period shall continue until the final disposition of such claim)Subsidiary’s organizational documents.
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall cause the Surviving Corporation and the Subsidiaries to procure, pay for and maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance or other insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts covering those Persons who are currently covered by the Company’s or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a any Subsidiary’s directors’ and officers’ liability policy insurer reasonably acceptable insurance at least to CPT the same extent as such directors and Inuvo (officers are currently covered. Every Person who is a director or officer of the “D&O Insurance”). Parent Company or a Subsidiary immediately prior to the Effective Time shall use commercially reasonable efforts to obtain competitive quotes (from be a named insured party on such policies of directors’ and officers’ liability insurance providers with comparable ratings) for such six year period following the Effective Time. The Company shall have the authority prior to the Closing to procure on behalf of the Surviving Corporation such directors’ and officers’ liability insurance coverage in an effort to reduce take effect as of the cost thereofEffective Time, and the Surviving Corporation shall be responsible for all costs relating to such insurance.
(ec) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under In the CPT Certificate of Incorporation, event Parent or the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in 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 case, to (A) if the extent necessarysuccessors and assigns of Parent or the Surviving Corporation are Related Parties, proper provision shall be made so that the successors and assigns of Parent or the Parent shall Surviving Corporation, as the case may be, assume the indemnification and other obligations set forth in this Section 6.115.9, or (B) if the successors and assigns of Parent or the Surviving Corporation are not Related Parties, Parent shall use commercially reasonable efforts to cause such successors and assigns to assume the indemnification and other obligations set forth in this Section 5.9.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Carpenter Technology Corp), Merger Agreement (Carpenter Technology Corp)
Indemnification; Insurance. (a) The provisions with respect Following the Effective Time, the Continuing Corporation and its Subsidiaries, as the case may be, shall jointly and severally indemnify, defend and hold harmless, and advance expenses to indemnification, any person who has rights to indemnification or advancement of expenses and exculpation contained in the Parent Certificate from FVCB or any of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six its Subsidiaries (6an “Indemnified Party”) years after the Effective Time (in any manner that would adversely affect the rights thereunder of the persons who at any time prior capacity), to the Effective Time were same extent and on the same conditions as such person was entitled to indemnification, indemnification or advancement of expenses pursuant to applicable law and FVCB’s Organizational Documents or exculpation under any FVCB Subsidiary’s Organizational Documents, as the CPT Certificate case may be, or any indemnification agreements to which an Indemnified Party is a party as in effect on the date of Incorporationthis Agreement, subject, in the case of advancement of expenses, to the Indemnified Party providing a written undertaking to repay such advancements as contemplated by Section 13.1-699A of the VSCA. Without limiting the foregoing, in any case or proceeding in which corporate approval may be required to effectuate any indemnification, the CPT BylawsContinuing Corporation or its applicable Subsidiary shall direct, if any Indemnified Party elects, that the Inuvo Articles determination of Incorporationpermissibility of indemnification shall be made by independent counsel mutually agreed upon between the Continuing Corporation or such Subsidiary and such Indemnified Party.
(b) The Continuing Corporation shall, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required purchase a six (6) year “tail” prepaid policy on terms and conditions no less favorable than those of the existing directors’ and officers’ liability (including fiduciary and cyber coverage) insurance maintained by applicable Law FVCB from insurance carriers with comparable credit ratings, covering, without limitation, the Merger; provided, however, that the cost of such “tail” policy shall in no event exceed three hundred percent (300%) of the amount of the last annual premium paid by FVCB for such existing directors’ and officers’ liability (and provided that all rights of indemnificationfiduciary) insurance. If, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until but for the final disposition of such claim).
(b) From and after proviso to the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administratorsimmediately preceding sentence, the “Indemnified Directors and Officers”Continuing Corporation would be required to expend more than three hundred percent (300%) against all lossesof current annual premiums, claims, damages, expenses the Continuing Corporation will obtain the maximum amount of that insurance obtainable by payment of annual premiums equal to three hundred percent (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions 300%) of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Lawcurrent annual premiums.
(c) Each of ParentNothing in this Agreement is intended to, CPT and Inuvo agreesshall be construed to or shall release, that all waive or impair any rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance claims under any policy that is or has been in an amount existence with respect to FVCB or any of its Subsidiaries for any of their respective directors, officers or other employees, it being understood and scope reasonably acceptable to CPT and Inuvo agreed that the indemnification provided for claims arising from facts or events that occurred on or in this Section 5.11 is not prior to the Effective Time at a cost that is reasonable and customary or in substitution for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for any such insurance coverage in an effort to reduce the cost thereofclaims under such policies.
(ed) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and covenant is intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her respective heirs and legal representatives. The rights to indemnification and advancement of expenses and the other rights provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Parties referred Party is entitled, whether pursuant to hereinlaw, contract or otherwise.
(fe) If the Parent Continuing Corporation or any of its respective successors or assigns (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 or (ii) merger, transfers or conveys all or substantially all of its properties and assets or deposits to any Personother entity or engages in any similar transaction, then, and then in each case, to the extent necessary, Continuing Corporation will cause proper provision shall to be made so that the successors and assigns of the Parent shall Continuing Corporation will expressly assume the obligations set forth in this Section 6.115.11. For the avoidance of doubt, to the extent required by any agreement previously entered into by FVCB in connection with a merger, acquisition or other business combination, the provisions of this Section 5.11 shall apply to directors, officers, employees and fiduciaries of predecessor entities previously acquired by FVCB.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (FVCBankcorp, Inc.), Agreement and Plan of Reorganization (Blue Ridge Bankshares, Inc.)
Indemnification; Insurance. (a) The provisions with respect Each Transacting Party agrees that all rights to indemnification, advancement of expenses and exculpation contained by any of SVT, Sea Hunter, Briteside or B▇▇▇▇ now existing in the Parent Certificate favor of Incorporation and Parent Bylaws shall not be amendedeach Person who is now, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who has been at any time prior to the Effective Time were entitled to indemnification, advancement of expenses date hereof or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or who becomes prior to the Effective TimeDate an officer, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted director or made within such six-year period shall continue until the final disposition manager of such claim).
(b) From Transacting Party or any of its Subsidiaries as provided in the constituent documents of such Transacting Party or its applicable Subsidiary, in each case as in effect on the date of this Agreement, or pursuant to any other Contract in effect on the date hereof and after disclosed in the Schedules to this Agreement, shall be assumed by the Resulting Issuer in the Business Combination, without further action, at the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers Business Combination and shall continue remain in full force and effect in accordance with their terms. , and, in the event that any proceeding is pending or asserted or any claim made during such period, until the final disposition of such proceeding or claim.
(b) For a period of six (6) years after the Effective Time, Parent to the fullest extent permitted under applicable Law, the Parties agree that the Resulting Issuer (the “Indemnifying Party”) shall maintain in effect indemnify, defend, and hold harmless any Person who is now, or has been at any time prior to the indemnificationdate hereof or who becomes prior to the Effective Date an officer, exculpation and advancement director or manager of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiariesi) now in effect and any such indemnification agreements of CPT, Inuvo Transacting Party or any of its Subsidiaries, or (ii) any other party to any Contemporaneous Agreement (each an “Indemnified Party”), against all Liabilities arising in whole or in part out of actions or omissions in their respective Subsidiaries capacity as such occurring at or prior to the Effective Time (including in connection with the transactions contemplated by this Agreement), and shall reimburse each Indemnified Parties and not to amend, repeal Party for any legal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of other expenses reasonably incurred by such Indemnified PartiesParty in connection with investigating or defending any such Liabilities as such expenses are incurred, subject to the Resulting Issuer’s receipt of an undertaking by such Indemnified Party to repay such legal and all other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofIndemnified Party is not entitled to be indemnified under applicable Law.
(dc) Prior The Transacting Parties agree that the Resulting Issuer shall (i) use its best efforts to obtain as of the Effective Time, Parent, CPT and/or Inuvo shall obtain Time “tail” insurance policies with a claims period of six (6) years from the Effective Time with market standard (as established by a reputable national insurance brokerage firm with expertise in D&O insurance) coverage, amounts and terms and conditions, and covering each of the Indemnified Parties, in each case with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts out of or relating to events that which occurred on before or at the Effective Time (including in connection with the transactions contemplated by this Agreement), or (ii) pay the premium for any such reasonable coverage obtained prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereofby any Transacting Party.
(ed) The rights obligations of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations Resulting Issuer under this Section 6.11 4.11 shall survive the consummation of the Business Combination and shall not be terminated or modified in such a manner as to adversely affect adversely any Indemnified Party to whom this Section 6.11 4.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 4.11 applies and their respective heirs, successors and assigns shall be express third-third party beneficiaries of this Section 6.114.11, each of whom may enforce the provisions of this Section 4.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(fe) If In the Parent event the Resulting Issuer or any of its respective successors or assigns assigns: (i) consolidates or amalgamates with or merges into any other Person and shall not be the continuing or surviving corporation entity in such consolidation, amalgamation 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 either such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent Resulting Issuer shall assume all of the obligations set forth in this Section 6.114.11. The agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract, or otherwise. Nothing in this Agreement is intended to, shall be construed to or shall release, waive, or impair any rights to directors’ or managers’ and officers’ insurance claims under any policy that is or has been in existence with respect to any of SVT, Sea Hunter, Briteside or B▇▇▇▇ or its officers, directors, and employees, it being understood and agreed that the indemnification provided for in this Section 4.11 is not prior to, or in substitution for, any such claims under any such policies.
Appears in 2 contracts
Sources: Business Combination Agreement (TILT Holdings Inc.), Business Combination Agreement (TILT Holdings Inc.)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(bA) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relatesTime, Parent NPB shall indemnify, defend indemnify and hold harmless the each present and former officers directors director, officer, employee and agent of CPTKNBT or a Subsidiary of KNBT, Inuvo and their respective Subsidiaries as applicable, determined as of the Effective Time (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersParties”) against all losses, claims, damages, any costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bfees), Liabilities judgments, fines, losses, claims, damages or amounts that are paid in settlement of, or otherwise, liabilities incurred in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPTinvestigative, Inuvo or any of their respective Subsidiaries, and arising out of actual matters existing or alleged events, 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, arising in each case whole or in part out of or pertaining to the fact that he or she is or was a director, officer or employee of KNBT or, while a director, officer or employee of KNBT, is or was serving at the request of KNBT as a director, officer, employee or agent of another corporation, association, partnership, joint venture, trust or other enterprise, including without limitation matters related to the negotiation, execution and performance of this Agreement or any of the transactions contemplated hereby, to the fullest extent permitted by applicable Lawwhich such Indemnified Parties would be entitled under the BCL (which right to indemnification shall include the advancement of reasonable attorneys’ fees and expenses in advance of the final disposition of any claim, action, suit, proceeding or investigation upon receipt from an Indemnified Party of any required undertaking).
(cB) Each Without limitation of Parentthe foregoing, CPT and Inuvo agrees, NPB agrees that all rights to indemnification, exculpation indemnification and advancement of expenses now all limitations on liability existing in favor of any the Indemnified Directors and Officers Parties in the respective article of incorporation, bylaws or any current or former employee similar organizational documents of CPT, Inuvo KNBT or any of their respective its Subsidiaries (together as in effect as of the date of this Agreement with their heirs, executors and administrators, and any Indemnified Directors and Officers, respect to matters occurring prior to the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) Effective Time shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms. For a period of six (6) years from and after the Effective Time, Parent provided, that nothing contained in this Section 5.08(c)(vi) shall maintain in effect the indemnificationbe deemed to preclude any liquidation, exculpation and advancement consolidation or merger of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo NPB or any of their respective its Subsidiaries, in which case all of such rights to indemnification and limitations on liability shall be deemed to so survive and continue notwithstanding any such liquidation, consolidation or merger. Without limiting the foregoing, in any case in which approval by NPB, one of its Subsidiaries with or the board of directors thereof is required to effect any indemnification, at the election of the Indemnified Parties and not to amendParty, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect determination of any action, suit, proceeding such approval shall be made by a majority of the independent directors of NPB then in office or investigation pending or asserted or claim made or threatened within such period shall continue until by independent counsel mutually agreed upon between NPB and the final disposition or resolution thereofIndemnified Party.
(dC) Prior to the Effective TimeDate, Parent, CPT and/or Inuvo NPB shall obtain “tail” insurance policies with a claims period of six use its reasonable best efforts (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount KNBT shall cooperate and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or assist prior to the Effective Time Date in these efforts), at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, no expense to the extent necessarybeneficiaries, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.to:
Appears in 2 contracts
Sources: Merger Agreement (KNBT Bancorp Inc), Merger Agreement (National Penn Bancshares Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for For a period of six (6) years following the Closing Date, the Buyer shall cause the Company and Intermediate LLC to comply with all obligations of the Company or Intermediate LLC, as the case may be, in existence or in effect as of the date hereof under applicable Law, the Certificate of Formation, the Operating Agreement (or with respect to Intermediate LLC, those provisions contained in its certificate of formation or the Intermediate LLC Operating Agreement after the Effective Time in any manner that would adversely affect date hereof; provided, such provisions are substantially the rights thereunder of the persons who at any time prior same as those applicable to the Effective Time were entitled Company) or by contract, to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless harmless, and also advance expenses as incurred, to the present fullest extent permitted under applicable Law, the Certificate of Formation, the Operating Agreement or by contract, each person who is now or has been prior to the date hereof or who becomes prior to the Closing Date an officer, manager, member or director of the Company and former officers directors of CPT, Inuvo and their respective Subsidiaries Intermediate LLC (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, costs, expenses (including reasonable attorneys’ including, without limitation, counsel fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bexpenses), Liabilities settlement payments or amounts that are paid in settlement of, liabilities arising out of or otherwise, in connection with any claim, demand, action, suit, Proceeding proceeding or investigationinvestigation based in whole or in part on or arising in whole or in part out of the fact that such person is or was an officer, manager, member or director of the Company or Intermediate LLC, whether civil, criminal, administrative or investigative and including all appeals thereof not pertaining to which any Indemnified Directors and Officers is matter existing or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective TimeClosing Date and whether or not asserted or claimed prior to, in each case at or after the Closing Date. The parties hereto intend, to the fullest extent permitted not prohibited by applicable Law, that the indemnification provided for in this Section 6.9 shall apply without limitation to acts or omissions, other than illegal acts or acts of fraud, or alleged acts or omissions, other than illegal acts or acts of fraud, by the Indemnified Officers in their capacities as officers, managers, members or directors, as the case may be. Each Indemnified Officer, and his, her or its heirs and legal representatives, is intended to be a third-party beneficiary of this Section 6.9 and may specifically enforce its terms. This Section 6.9 shall not limit or otherwise adversely affect any rights any Indemnified Officer may have under any agreement with the Company or under the Company’s organizational documents.
(cb) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after following the Effective TimeClosing Date, Parent the Buyer shall cause Intermediate LLC and its Subsidiary to maintain in effect the indemnification, exculpation and advancement policies of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable covering each Indemnified Officer with respect to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time Closing Date and providing at a cost least the same coverage and amounts and containing terms that is reasonable and customary for tail insurance are not less advantageous to the Indemnified Officers than those contained in the policies with a of directors’ and officers’ liability policy insurer reasonably acceptable to CPT insurance in effect as of the date hereof for officers and Inuvo (directors of the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) Buyer; provided, however, that, if the aggregate premiums for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation exceed 300% of the Mergers and is intended current aggregate annual premium, then the Buyer shall provide or cause to be provided policies for the benefit of, and applicable individuals with the best coverage as shall then be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any available at an annual premium of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns 300% of the Parent shall assume the obligations set forth in this Section 6.11current aggregate annual premium.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.), Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.)
Indemnification; Insurance. (a) The provisions From and after the Effective Time, the Holding Company (the "Indemnifying Party") shall provide indemnification to any present or former director, officer or employee of the Company and each Company Subsidiary, in each case determined as of the Effective Time (the "Indemnified Parties"), with respect to indemnificationany costs or expenses (including reasonable attorneys' fees), advancement judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether, civil, criminal, administrative or investigative, arising out of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed matters existing or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required if first asserted or claimed prior to the date hereof and Previously Disclosed, if first asserted or claimed between the date hereof and the Effective Time and disclosed pursuant to Section 5.16 hereof or if first asserted or claimed after the Effective Time, to the fullest extent, if any, that such Indemnified Party would have been entitled to indemnification by applicable Law (and provided the Company or any Company Subsidiary under the Articles of Incorporation, Articles of Association or Bylaws of the Company or any Company Subsidiary as Previously Disclosed, provided, however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From , and after the Effective Time and until the expiration provided, further, that nothing contained herein shall extend or be deemed a waiver of any applicable statutes statute of limitation limitations in respect of any claim or claim for indemnification. Without limiting the foregoing, all limitations of liability existing in favor of the underlying claim to which Indemnified Parties in the indemnification relatesArticles of Incorporation, Parent shall indemnify, defend and hold harmless Articles of Association or Bylaws of the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo Company or any of their respective SubsidiariesCompany Subsidiary, and arising out of actual matters existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) Time shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms. For a period effect.
(b) Any Indemnified Party wishing to claim indemnification under Section 5.9(a), upon learning of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements claim, action, suit, proceeding or investigation, shall promptly notify the Indemnifying Party, but the failure to so notify shall not relieve the Indemnifying Party of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not liability it may have to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all Party if such rights in respect failure does not materially prejudice the Indemnifying Party. In the event of any such claim, action, suit, proceeding or investigation pending (whether arising before or asserted after the Effective Time), (i) the Indemnifying Party shall have the right to assume the defense thereof and the Indemnifying Party shall not be liable to such Indemnified Parties for any legal expenses of other counsel or claim made any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Indemnifying Party elects not to assume such defense or threatened within counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Indemnifying Party and the Indemnified Parties, the Indemnified Parties may retain counsel which is reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Parties (which may not exceed one firm in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest) in accordance with the obligations set forth in Section 5.9(a) hereof, (ii) the Indemnified Parties will cooperate in the defense of any such matter, (iii) the Indemnifying Party shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld, and (iv) the Indemnifying Party shall have no obligation hereunder in the event a federal banking agency or a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) The Holding Company shall maintain the Company's existing directors' and officers' liability insurance policy (or purchase an insurance policy providing coverage on substantially the same terms and conditions) for acts or omissions occurring prior to the Effective Time by persons who are currently covered by such insurance policy maintained by the Company and the Company Subsidiaries for a period of six years following the Effective Time, provided, however, that in no event shall continue until the final disposition Holding Company be required to expend on an annual basis more than 150% of the amount paid by the Company and the Company Subsidiaries as of the date hereof for such insurance coverage (the "Insurance Amount") to maintain or resolution thereofprocure such insurance coverage, and further provided that if the Holding Company is unable to maintain or obtain the insurance called for hereby, the Holding Company shall use all reasonable efforts to obtain as much comparable insurance as is available for the Insurance Amount. At the request of the Holding Company, the Company shall use reasonable efforts to procure the insurance coverage referred to in the preceding sentence prior to the Effective Time.
(d) Prior to In the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed event that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Holding Company or any of its respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each case, to the extent necessary, proper provision shall be made so that such case the successors and assigns of the Parent such entity shall assume the obligations set forth in this Section 6.115.9, which obligations are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each director and officer covered hereby and the heirs and estates thereof.
Appears in 2 contracts
Sources: Merger Agreement (First Colonial Group Inc), Merger Agreement (KNBT Bancorp Inc)
Indemnification; Insurance. (a) The provisions From and after the Merger Effective Time, SplitCo shall, and shall cause its Subsidiaries to, in each case, to the fullest extent permitted under applicable Law (i) indemnify, hold harmless and advance expenses to the individuals who at or prior to the Merger Effective Time were directors or officers of SiriusXM or any of its Subsidiaries (each, an “Indemnitee” and collectively, the “Indemnitees”) with respect to all Actions and all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) arising from, relating to or in connection with any Action (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of SiriusXM or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director or officer of SiriusXM or such Subsidiary, or taken at the request of SiriusXM or such Subsidiary, in each case under clause (A) or (B), at, or at any time prior to, the Merger Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision) and (ii) comply with its obligations to the Indemnitees in respect of indemnification, advancement of expenses and exculpation contained from liabilities for acts or omissions occurring at or prior to the Merger Effective Time as provided in the Parent Certificate certificate of Incorporation incorporation or any bylaws of SiriusXM or its Subsidiaries or indemnification agreements, in each case, as in effect immediately prior to the Merger Effective Time or in any agreement in existence as of the date of this Agreement providing for indemnification between SiriusXM or any of its Subsidiaries and Parent Bylaws any Indemnitee. Without limiting the foregoing, from and after the Merger Effective Time, SplitCo shall cause, unless otherwise required by Law, the certificate of incorporation and bylaws of SplitCo and any successor thereto to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification and advancement than are set forth in SplitCo’s Public Charter Documents, which provisions shall not be amended, repealed or otherwise modified for in a period of six (6) years after the Effective Time in any manner that would materially adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)Indemnitees.
(b) From and after SplitCo shall not settle, compromise or consent to the Effective Time and until the expiration entry of any applicable statutes of limitation of the underlying claim judgment in any threatened or actual Action relating to which the indemnification relatesany acts or omissions covered under this Section 6.10 (each, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the a “Indemnified Directors and OfficersClaim”) against for which indemnification could be sought by an Indemnitee hereunder, unless such settlement compromise or consent includes an unconditional release of such Indemnitee from all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and liability arising out of actual such Claim or alleged eventssuch Indemnitee otherwise consents in writing to such settlement, actions compromise or omissions occurring consent (such consent not to be unreasonably delayed, withheld or alleged conditioned). SplitCo and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to have occurred at properties and individuals as reasonably requested and furnish or prior cause to the Effective Timebe furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in each case to the fullest extent permitted by applicable Lawconnection therewith.
(c) Each of Parent, CPT and Inuvo agrees, that all rights Prior to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Merger Effective Time, Parent SiriusXM shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain purchase a “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount policy (the “D&O Tail Policy”) covering the six-year period from and scope reasonably acceptable after the Merger Effective Time for SiriusXM’s current and former directors and officers who are currently covered by the directors’ and officers’ liability insurance coverage currently maintained by SiriusXM from a comparable carrier to CPT SiriusXM’s current directors’ and Inuvo for officers’ liability insurance carrier on terms that are no less favorable to the terms of the directors’ and officers’ liability insurance coverage currently maintained by SiriusXM as of the date of this Agreement with respect to claims arising from facts or events that occurred on or prior before the Merger Effective Time. If SiriusXM is unable to obtain the “tail” policy described in the immediately preceding sentence as of the Merger Effective Time at Time, SplitCo shall obtain an insurance and indemnification policy (from a cost comparable carrier as the current SiriusXM insurer) that is reasonable and customary for tail insurance policies with a provides directors’ and officers’ liability insurance for events, acts and omissions occurring at or prior to the Merger Effective Time for an aggregate period of no less than six years from the Merger Effective Time that is no less favorable to the Indemnitees than SiriusXM’s existing policy. In addition, SplitCo shall obtain an insurance and indemnification policy insurer reasonably acceptable (from a comparable carrier as the current SiriusXM insurer) that provides directors’ and officers’ liability insurance for events, acts and omissions occurring from and after the Merger Effective Time that is no less favorable to CPT the Indemnitees than SiriusXM’s existing policy. Notwithstanding the foregoing, in no event will SiriusXM or SplitCo be required to pay annual premiums for such coverage described in this Section 6.10(c) in excess of 300% of the last annual premium paid by SiriusXM for the directors’ and Inuvo (officers’ liability insurance coverage currently maintained by SiriusXM; provided that, in such an event that the “D&O Insurance”)annual premium for any such policy exceeds 300% of the last annual premium paid by SiriusXM for the directors’ and officers’ liability insurance coverage currently maintained by SiriusXM, SiriusXM or SplitCo, as applicable, shall obtain the available policy or policies, as applicable and in each case, with an annual premium equal to or less than 300% of the last annual premium paid by SiriusXM for the directors’ and officers’ liability insurance coverage currently maintained by SiriusXM, that most closely satisfies the obligations set forth in this Section 6.10(c) in the aggregate. Parent SiriusXM or SplitCo, as applicable, shall use commercially its reasonable best efforts to obtain competitive quotes (from insurance providers with comparable ratings) cause such policy to be maintained in full force and effect, for such insurance coverage in an effort its full term, and to reduce honor all of its obligations thereunder. SiriusXM shall cause the cost thereofD&O Tail Policy to expressly provide that it survives the Closing.
(ed) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries provisions of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is 6.10 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 and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have. The obligations of SplitCo and SiriusXM under this Section 6.10 shall not be terminated or modified in such a manner as to materially and adversely affect the Indemnified Parties referred rights of any Indemnitee to hereinwhom this Section 6.10 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 (such consent not to be unreasonably delayed, withheld or conditioned) (it being expressly agreed that the Indemnitees to whom this Section 6.10 applies shall be third party beneficiaries of this Section 6.10).
(fe) If In the Parent event that SplitCo or any of its respective successors or 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 merger, (ii) transfers or conveys all or substantially all of its properties and assets to any PersonPerson or (iii) winds up or dissolves, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent SplitCo shall assume all of the obligations thereof set forth in this Section 6.116.10.
(f) SplitCo hereby acknowledges that the Indemnitees have or may, in the future, have certain rights to indemnification, advancement of expenses and/or insurance provided by other Persons (collectively, “Other Indemnitors”). SplitCo hereby agrees that, (i) SplitCo and its Subsidiaries are the indemnitors of first resort (i.e., their obligations to a Indemnitee shall be primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Indemnitee shall be secondary), (ii) SplitCo and its Subsidiaries shall, to the extent permitted by the SplitCo Public Charter Documents and SplitCo Subsidiary Documents or pursuant to any indemnity agreements between any of SiriusXM and its Subsidiaries and any such Indemnitees as in effect on the date of this Agreement, be required to advance the full amount of expenses incurred by any Indemnitee and, to the extent permitted by the SplitCo Public Charter Documents and SplitCo Subsidiary Documents or pursuant to any indemnity agreements between any of SiriusXM and its Subsidiaries and any such Indemnitees as in effect on the date of this Agreement, be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted, without regard to any rights the Indemnitee may have against the Other Indemnitors, and (iii) effective upon the Closing, SplitCo and its Subsidiaries, irrevocably waive, relinquish and release the Other Indemnitors (other than the insurers under the D&O Tail Policy) from any and all claims (A) against the Other Indemnitors for contribution, indemnification, subrogation or any other recovery of any kind in respect thereof and (B) that the Indemnitees must seek expense advancement, reimbursement or indemnification from any Other Indemnitor before SplitCo and its Subsidiaries must perform its expense advancement, reimbursement or indemnification obligations under this Agreement. SplitCo hereby further agrees that no advancement, indemnification or other payment by the Other Indemnitors on behalf of a Indemnitee with respect to any claim for which a Indemnitee has sought indemnification from SplitCo and its Subsidiaries shall affect the foregoing, and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement, indemnification or other payment to all of the rights of recovery of such Indemnitee against SplitCo and its Subsidiaries, and SplitCo and its Subsidiaries shall jointly and severally indemnify and hold harmless against such amounts actually paid by the Other Indemnitors.
(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 SiriusXM or any of its Subsidiaries for any of their respective directors, officers or other employees or the D&O Tail Policy, 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.
(h) The obligations of SiriusXM and SplitCo (or any successor entity thereto) under this Section 6.10 shall continue in full force and effect for a period of six years from the Merger Effective Time; provided, however, that if any Claim (whether arising before, at or after the Merger Effective Time) is brought against an Indemnitee on or prior to the sixth anniversary of the Merger Effective Time, the provisions of this Section 6.10 shall continue in effect until the full and final resolution of such Claim.
Appears in 2 contracts
Sources: Merger Agreement (Sirius Xm Holdings Inc.), Merger Agreement (Liberty Media Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for For a period of six (6) three years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of IncorporationTime, the CPT BylawsParent shall, and shall cause the Inuvo Articles of IncorporationSurviving Corporation to, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors officers, directors, employees and agents of CPT, Inuvo the Company and their respective Subsidiaries its subsidiaries (collectively, together with their respective heirsthe "Indemnified Parties") from and against, executors and administratorspay or reimburse the Indemnified Parties for, the “Indemnified Directors and Officers”) against all losses, obligations, expenses, claims, damages, expenses damages or liabilities (including reasonable attorneys’ fees whether or not resulting from third-party claims and including any interest, penalties, out-of-pocket expenses and attorneys’ fees or other ' fees incurred to enforce in the provisions investigation or defense of this Section 6.11(b), Liabilities any of the same or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or asserting any of their respective Subsidiaries, and rights hereunder) resulting from or arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time to the full extent permitted or required under applicable law and, in the case of indemnification by the Surviving Corporation, to the extent permitted under the provisions of the Certificate of Incorporation and the By-laws of the Company, each as in effect at the date hereof (which provisions shall not be amended in any manner which adversely affects any Indemnified Party, for a cost period of three years), provided that in the event any claim or claims are asserted or made within such three-year period, all rights to indemnification in respect of each such claim shall continue until final disposition of such claim. Without limiting the foregoing, in any case in which approval by the Surviving Corporation is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable required to CPT and Inuvo (effectuate any indemnification, the “D&O Insurance”). Parent shall use commercially reasonable efforts cause the Surviving Corporation to obtain competitive quotes (from insurance providers with comparable ratings) for direct, at the election of the Indemnified Party, that the determination of any such insurance coverage in an effort to reduce approval shall be made by independent counsel selected by the cost thereofIndemnified Party.
(eb) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under In the CPT Certificate of Incorporationevent that the Parent, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Surviving Corporation or any of its respective their successors or assigns (i) consolidates with or merges into any other Person person and shall is 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 Personperson, then, and in each such case, to the extent necessary, proper provision shall will be made so that the successors and assigns of the Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.116.
Appears in 2 contracts
Sources: Merger Agreement (C Ats Software Inc), Merger Agreement (Misys PLC)
Indemnification; Insurance. (a) The provisions Notwithstanding anything to the contrary in Section 1.04, Parent and Merger Sub agree that all rights to indemnification existing in favor, and all limitations on the personal liability of, each present and former director, officer, employee or agent of the Company or any of its Subsidiaries or a director, officer, employee, agent or trustee of any employee benefit plan for employees of the Company or any of its Subsidiaries, and each person who is or was then serving in any such capacity (or any person who is or was then serving any other corporation or entity in any such capacity at the request of the Company) (individually, an “Indemnified Party” and collectively, the “Indemnified Parties”) provided for in the Company’s Amended and Restated Certificate of Incorporation or By-Laws or similar organizational documents of any Subsidiary as in effect on the date of this Agreement with respect to indemnification, advancement of expenses matters occurring prior to the Effective Time shall survive the Merger and exculpation contained shall continue in the Parent Certificate of Incorporation full force and Parent Bylaws shall not be amended, repealed or otherwise modified effect for a period of not less than six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to from the Effective Time; provided, unless otherwise required by applicable Law (and provided however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim for indemnification for losses, damages or liabilities of any kind or nature incurred that is asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now Surviving Corporation shall cause to be maintained in effect and any such indemnification agreements of CPTeffect, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to nationally recognized carrier, directors’ and officers’ liability insurance in an amount covering each Indemnified Party who is currently covered by the Company’s directors’ and scope reasonably acceptable officers’ liability insurance with respect to CPT and Inuvo for claims arising from facts or events that occurred on at or prior to the Effective Time at Time, which insurance shall be no less favorable than such insurance maintained in effect by the Company on the date hereof in terms of coverage and amounts, or, if such insurance coverage is not available, the best available coverage; provided, however, that the Surviving Corporation shall not be required to pay an annual premium for such insurance in excess of 150% of the last annual premium paid prior to the Effective Time, but in such case shall purchase as much coverage as possible for such amount. Alternatively, the Company may, elect that the Surviving Corporation satisfy Parent’s obligation under this Section 5.06(b) by purchasing a cost that is reasonable and customary for tail insurance policies with a “tail” policy under the Company’s current directors’ and officers’ liability policy insurer reasonably acceptable insurance policy, with an effective term of six (6) years, covering those persons who are currently covered by the Company’s directors’ and officers’ insurance policy
(c) This Section 5.06 shall survive the Closing, is intended to CPT benefit the Company and Inuvo each of the Indemnified Parties (each of whom shall be entitled to enforce this Section 5.06 against Parent or the “D&O Insurance”). Surviving Corporation, as the case may be) and shall be binding on all successors and assigns of Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce and the cost thereofSurviving Corporation.
(ed) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under In the CPT Certificate of Incorporation, event the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s Surviving Corporation or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its their respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Parent shall Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.115.06.
Appears in 2 contracts
Sources: Merger Agreement (Opinion Research Corp), Merger Agreement (Infousa Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until Appointment Date, the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Company shall (i) indemnify, defend and hold harmless harmless, all directors and officers of the present Company and former officers directors of CPT, Inuvo and their respective Subsidiaries its subsidiaries who have served the Company or its subsidiaries in either capacity at any time during the one year period prior to the Appointment Date (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersPersons”) against all any costs, expenses (including attorneys’ fees and expenses and disbursements), judgments, fines, losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees damages or other fees liabilities incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claimthreatened, action, suit, Proceeding pending or investigationcompleted action suit or proceeding, whether civil, criminal, administrative or investigative and including all appeals thereof investigative, (collectively, an “Action”), arising out of or pertaining to which any the fact that the Indemnified Directors and Officers Person is or may become was a party to by virtue director, officer, employee or agent of his or her service as a present or former director or officer of CPT, Inuvo the Company or any of their respective Subsidiariesits subsidiaries, or a trustee, custodian, administrator, committeeman or fiduciary of any employee benefit plan established and arising out maintained by the Company or by any subsidiary of actual the Company, or alleged eventswas serving another corporation, actions partnership, joint venture, trust or other enterprise in any of the foregoing capacities at the request of the Company or any of its subsidiaries, whether asserted or claimed prior to, on or after the Appointment Date (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions or alleged to have occurred at or prior actions contemplated hereby), and (ii) provide advancement of expenses to the Effective TimeIndemnified Persons in the defense or settlement of any Action to which such Indemnified Person may be entitled to indemnification hereunder or under the Company’s (or any successor’s) certificate of incorporation or bylaws, in each of clauses (i) and (ii), to the fullest extent permitted by the Charter and Bylaws as they presently exist or may hereafter be amended (but, in the case of any such amendment, only to the extent such amendment provides broader indemnification rights or rights of advancement of expenses than the Charter and Bylaws provided prior to such amendment).
(b) Without limitation to Section 2.5(a), from and after the Appointment Date, the Company shall, to the fullest extent permitted by applicable Lawlaw, include and cause to be maintained in effect in the Company’s (or any successor’s) certificate of incorporation and bylaws for a period of six years after the Appointment Date, provisions regarding exculpation of liability of directors, and indemnification of and advancement of expenses to directors and officers of the Company, that are no less favorable than those contained in the Charter or the Bylaws as of the date of this Agreement.
(c) Each of ParentThe Company shall not settle, CPT and Inuvo agrees, that all rights compromise or consent to indemnification, exculpation and advancement of expenses now existing in favor the entry of any judgment in any proceeding or threatened Action (and in which indemnification could be sought by an Indemnified Directors and Officers Person hereunder), unless such settlement, compromise or any current consent includes an unconditional release of such Indemnified Person from all liability arising out of such Action or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administratorssuch Indemnified Person otherwise consents in writing, and any Indemnified Directors and Officers, cooperates in the “Indemnified Parties”defense of such proceeding or threatened Action.
(d) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective TimeAppointment Date, Parent the Company shall maintain in effect the indemnificationeffect, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior at no expense to the Effective Timebeneficiaries, Parent, CPT and/or Inuvo shall obtain “tail” insurance the current policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance maintained by the Company for the persons who are covered by such current policies (or substitute policies with terms, conditions, retentions and levels of coverage at least as favorable as provided in an amount and scope reasonably acceptable such existing policies, from insurance carriers with the same or better claims-paying ability ratings as the Company’s current carriers) with respect to CPT and Inuvo for claims arising from or related to facts or events that which occurred or existed on or prior before the Appointment Date, including in connection with this Agreement or the transactions or actions contemplated hereby; provided, however, that the Company shall not be obligated to make annual premium payments for such insurance to the Effective Time extent such premiums exceed 250% of the annual premiums paid as of the date hereof by the Company for such insurance (such 250% amount, the “Base Premium”); provided, further, if such insurance coverage cannot be obtained at a cost that is reasonable and customary for tail insurance all, or can only be obtained at an annual premium in excess of the Base Premium, the Company shall maintain the most advantageous policies with a of directors’ and officers’ liability policy insurer reasonably acceptable insurance for the persons who are covered by the Company’s current policies with respect to CPT and Inuvo (claims arising from or related to facts or events which occurred or existed on or before the “D&O Insurance”). Parent shall use commercially reasonable efforts Appointment Date, including in connection with this Agreement or the transactions or actions contemplated hereby, obtainable for an annual premium equal to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereofBase Premium.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under In the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed event that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Company or any of its respective successors or assigns (i) consolidates with or merges into any other Person person and shall is 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 properties, rights and other assets to any Personperson, then, and in each such case, the Company as a precondition to the extent necessary, such transaction will cause proper provision shall to be made so that the successors and assigns of the Parent such successor or assign shall expressly assume the obligations set forth in this Section 6.112.5.
(f) The provisions of this Section 2.5 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: Credit Agreement (InfuSystem Holdings, Inc), Settlement Agreement (InfuSystem Holdings, Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons date hereof, Parent and Purchaser shall indemnify and hold harmless each person who is, or has been at any time prior to the Effective Time were entitled to indemnification, advancement of expenses date hereof or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or who becomes prior to the Effective Time, unless otherwise required an officer, director or employee of the Company or any of its Subsidiaries (collectively, the "Indemnified Parties" and individually, the "Indemnified Party") against all losses, liabilities, expenses, claims or damages in connection with any claim, suit, action, proceeding or investigation based in whole or in part on the fact that such Indemnified Party is or was a director, officer or employee of the Company or any of its Subsidiaries and arising out of acts or omissions occurring prior to and including the Effective Time (including but not limited to the transactions contemplated by applicable Law (and provided this Agreement) to the fullest extent permitted by the GCL, for a period of not less than six years following the Effective Time; provided, however, that all rights of indemnification, advancement of expenses and exculpation in respect of the event any claim or claims are asserted or made within such six-year period period, all rights to indemnification in respect of any such claim or claims shall continue until the final disposition of any and all such claim)claims.
(b) From Parent shall cause the Certificate of Incorporation and By-Laws of the Surviving Corporation and its Subsidiaries to include provisions for the limitation of liability of directors and indemnification of the Indemnified Parties to the fullest extent permitted under applicable law and shall not permit the amendment of such provisions in any manner adverse to the Indemnified Parties, as the case may be, without the prior written consent of such persons, for a period of six years from and after the Effective Time and until the expiration of any applicable statutes of date hereof.
(c) Without limitation of the underlying claim to which foregoing, in the indemnification relatesevent any such Indemnified Party is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including, without limitation, the transactions contemplated by this Agreement, occurring prior to, and including, the Effective Time, Parent will pay as incurred such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith, subject to the provision by such Indemnified Party of an undertaking to reimburse such payments in the event of a final determination by a court of competent jurisdiction that such Indemnified Party is not entitled thereto. Parent shall indemnifypay all expenses, defend including attorneys' fees, that may be incurred by any Indemnified Party in enforcing the indemnity and hold harmless other obligations provided for in this Section 6.06 or any action involving an Indemnified Party resulting from the present transactions contemplated by this Agreement.
(d) For six years after the Effective Time, the Surviving Corporation shall cause to be maintained policies of directors and former officers' liability insurance comparable to those currently maintained by the Company for the benefit of directors and officers directors of CPTthe Company (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are substantially equivalent) with respect to matters occurring prior to the Effective Time. Notwithstanding the foregoing, Inuvo in no case shall the Surviving Corporation be required to pay an annual premium for such insurance greater than 300% of the last annual premium paid prior to the date hereof. The Company represents to Parent that the last annual premium paid for such insurance prior to the date hereof was $256,000.
(e) Any determination to be made as to whether any Indemnified Party has met any standard of conduct imposed by law shall be made by legal counsel reasonably acceptable to such Indemnified Party, Parent and their respective Subsidiaries the Surviving Corporation, retained at Parent's and the Surviving Corporation's expense.
(collectively, together with f) This Section 6.06 is intended to benefit the Indemnified Parties and their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, personal representatives and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that binding on the successors and assigns of Parent, Purchaser and the Parent shall assume the obligations set forth in this Section 6.11Surviving Corporation.
Appears in 2 contracts
Sources: Merger Agreement (Metromail Corp), Merger Agreement (Great Universal Acquisition Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent 8.1 INDEMNIFICATION. Predix shall indemnify, defend and hold harmless the present and former officers directors of CPTRamot, Inuvo its Affiliates and their respective Subsidiaries (collectivelygovernors, together with directors, officers, employees, stockholders PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO THE COMPANY'S APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [*] DENOTES OMISSIONS. and agents and their respective heirssuccessors, executors heirs and administratorsassigns (the "Ramot Indemnitees") from and against any liability, the “Indemnified Directors and Officers”) against all lossesdamage, claims, damages, expenses loss or expense (including reasonable attorneys’ ' fees and including any attorneys’ fees expenses of litigation) incurred by or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement ofimposed upon such Ramot Indemnitees, or otherwiseany of them, in connection with any claimThird Party claims, actionsuits, suitactions, Proceeding demands or investigationjudgments, whether civilincluding, criminalwithout limitation, administrative or investigative personal injury and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ product liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each casematters, to the extent necessaryarising out of: (a) the development, proper provision shall be made so that testing, production, manufacture, supply, promotion, import, sale or use by any person of any Software Product or Licensed Product (or any component thereof) manufactured or sold by Predix or any Affiliate or Sublicensee under this Agreement, (b) the successors and assigns use of the Parent shall assume Licensed Technology or practice of the obligations set forth Licensed Patent Rights by Predix, any of its Affiliates or any Sublicensees, (c) any material breach of this Agreement by Predix, (d) any breach by a Sublicensee of a Sublicense, or (e) the gross negligence or willful misconduct on the part of Predix or any Affiliate or Sublicensee, in any such case under this Section 6.118.1.1, except to the extent any of the foregoing is caused by the negligence or willful misconduct of Ramot or a breach of this Agreement by Ramot.
Appears in 2 contracts
Sources: License Agreement (Predix Pharmaceuticals Holdings Inc), License Agreement (Predix Pharmaceuticals Holdings Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for For a period of six (6) four years after the Effective Time in any manner that would adversely affect Time, the rights thereunder Buyer shall indemnify each person who served as a director or officer of the persons who Seller or its Subsidiaries at any time prior to or before the Effective Time were entitled (the "Indemnified Parties") to indemnification, advancement of expenses or exculpation the fullest extent permitted under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo respective Articles of Incorporation, Code of Regulations, Constitution or Bylaws of Buyer or its Subsidiaries and Seller or its Subsidiaries and under applicable provisions of Ohio law from and against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement in connection with any threatened, pending or completed action, suit or proceeding by reason of the Inuvo fact that such person was a director or officer of Seller or its Subsidiaries. Without limiting the foregoing, all limitations on liability existing in favor of the Indemnified Parties in the Articles of Incorporation, Constitution, Code of Regulations or Bylaws (of Seller or any Seller Subsidiary as of the date hereof, to the extent permissible under applicable organizational documents law as of CPT’s and Inuvo’s Subsidiaries) in respect the date hereof, arising out of actions matters existing or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofeffect.
(db) Prior to In the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events event that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Buyer or any of its respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each case, to the extent necessary, proper provision shall be made so that such case the successors and assigns of the Parent such entity shall assume the obligations set forth in this Section 6.115.9, which obligations are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each director and officer covered hereby.
(c) Buyer shall add a rider, to be effective at the Effective Time, to its existing directors' and officers' liability insurance policy, or obtain "tail coverage" under the existing directors' and officers' liability insurance policy maintained by Seller at the Effective Time, covering the acts and omissions of the officers and directors of Seller and Seller Bank occurring prior to the Effective Time, and shall continue such coverage for a period of three years after the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Potters Financial Corp), Merger Agreement (United Community Financial Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relatesTime, Parent shall indemnify, defend cause the Surviving Corporation to indemnify and hold harmless harmless, to the fullest extent permitted under applicable law (and Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification), each present and former officers directors director, officer and employee of CPT, Inuvo the Company and their respective its Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersPersons”) against all losses, claims, damages, any costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bfees), Liabilities judgments, fines, losses, claims, damages or amounts that are paid in settlement of, or otherwise, liabilities incurred in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPTinvestigative, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions pertaining to matters existing or omissions occurring or alleged to have occurred at or prior to the Effective Time, including the transactions contemplated by this Agreement; provided, however, that Surviving Corporation shall not be required to indemnify any Indemnified Person pursuant hereto if it shall be determined that the Indemnified Person acted in each case bad faith and not in a manner such Indemnified Person believed to be in or not opposed to the fullest extent permitted by applicable Lawbest interests of the Company. The articles of incorporation of the Surviving Corporation shall contain, and Parent shall cause the articles of incorporation of the Surviving Corporation to contain, provisions no less favorable with respect to indemnification and exculpation of present and former directors and officers of the Company than are presently set forth in the Company’s articles of incorporation and bylaws.
(cb) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after following the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the indemnification, exculpation and advancement policies of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable covering each Person who is now or was a director or officer of the Company or any of its Subsidiaries with respect to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time and providing at a cost least the same coverage and amounts and containing terms that is reasonable and customary for tail insurance in aggregate are not less advantageous to the insured parties than those contained in the policies with a of directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo insurance in effect as of the date hereof (the “D&O InsuranceCurrent Policy Coverage”). Parent ; provided, however, that in no event shall use commercially reasonable efforts the Surviving Corporation be required to obtain competitive quotes (from insurance providers with comparable ratings) expend, per annum, in excess of 200% of the annual premium currently paid by the Company for such coverage (or such coverage as is available for 200% of such annual premium); provided, further, that if the annual premium required to provide the foregoing insurance exceeds 200% of the annual premium currently paid by the Company, the Surviving Corporation shall provide as much of such insurance as can be purchased for such premium, and, any present or former officer or director, upon reasonable written notice thereof from the Surviving Corporation, who desires to be covered by the Current Policy Coverage may so elect and shall be covered by the Current Policy Coverage so long as such former officer or director pays the portion of the premium for such policies in excess of the amount which the Surviving Corporation is obligated to pay pursuant to this Section 5.10. If the Company in its sole discretion elects, by giving written notice to Parent at least 60 days prior to the Effective Time, then, in lieu of the foregoing insurance, effective as of the Effective Time, the Company may purchase a “tail” or “runoff” policy that (i) has an effective term of up to six years from the Effective Time, (ii) covers each person currently covered by the Company’s directors’ and officers’ insurance policy in effect on the date of this Agreement for actions and omissions occurring on or prior to the Effective Time, and (iii) contains terms that are no less favorable than those of the Company’s directors’ and officers’ insurance policy in effect on the date of this Agreement; provided that the premium for such “tail” or “run off” coverage in an effort to reduce shall not exceed 200% of the cost thereofannual premium currently paid by the Company.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(fc) If the Parent Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, then and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall Surviving Corporation assume the obligations set forth in this Section 6.115.10.
Appears in 2 contracts
Sources: Merger Agreement (Herbst Gaming Inc), Merger Agreement (Sands Regent)
Indemnification; Insurance. 13.1 Except as set forth in paragraph 12.1, the OPTIONEE agrees to indemnify hold harmless and defend THE REGENTS, its officers, employees, and agents; the sponsors of the research that lead to the Invention; and the inventors of the patents and patent application in Regents' Patent Rights and their employers against any and all claims, suits, losses, damages, costs, fees, and expenses resulting from or arising out of exercise of this Agreement.
13.2 THE REGENTS shall promptly notify OPTIONEE in writing of any claim or suit brought against THE REGENTS in respect of which THE REGENTS intend to invoke the provisions of this Article 13. OPTIONEE will keep THE REGENTS informed on a current basis of its defense of any claims pursuant to this Article 13.
13.3 At such time as OPTIONEE commences research activities in its own facilities utilizing its own employees, OPTIONEE, at its sole cost and expense, shall insure its activities in connection with the work under this Agreement and obtain, keep in force and maintain insurance as follows, or an equivalent program of self insurance; Comprehensive or Commercial Form General Liability Insurance (contractual liability included) with limits as follows:
(a) The provisions with respect Each occurrence $1,000,000
(b) Personal injury $1,000,000
(c) General aggregate (commercial form only) $3,000,000 It should be expressly understood, however, that the coverages and limits referred to indemnification, advancement of expenses and exculpation contained in under the Parent Certificate of Incorporation and Parent Bylaws above shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect way limit the rights thereunder liability of the persons who at any time prior OPTIONEE. OPTIONEE shall furnish THE REGENTS with certificates of insurance evidencing compliance with all requirements. Such certificates shall:
(a) Provide for thirty-(30) day advance written notice to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect THE REGENTS of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)modification.
(b) From and after Indicate that THE REGENTS has been endorsed as an additional Insured under the Effective Time and until coverages referred to under the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Lawabove.
(c) Each Include a provision that the coverages will be primary and will not participate with nor will be excess over any valid and collectible insurance or program of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing self-insurance carried or maintained by THE REGENTS.
13.4 THE REGENTS shall promptly notify OPTIONEE in favor writing of any Indemnified Directors and Officers claim or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights suit brought against THE REGENTS in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until which THE REGENTS intends to invoke the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries provisions of this Section 6.11)Article 13. This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any OPTIONEE will keep THE REGENTS informed on a current basis of its respective successors or assigns (i) consolidates with or merges into defense of 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 claims pursuant to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11Article 13.
Appears in 2 contracts
Sources: Research and License Agreement (Megabios Corp), Research and License Agreement (Megabios Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect through the rights thereunder fourth anniversary of the persons who at any time prior Effective Time, PBOC and the Bank (each an "Indemnifying Party" and together the "Indemnifying Parties"), agrees to indemnify and hold harmless each present and former director, officer or employee of BOH, determined as of the Effective Time were entitled to indemnification(the "Indemnified Parties"), advancement against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of expenses matters existing or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent to which BOH could indemnify such Indemnified Parties and provided in the manner to which it could indemnify such parties under the Bylaws of BOH, in each case as in effect on the date hereof, provided, however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration Any Indemnified Party wishing to claim indemnification under Section 5.9(a), upon learning of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any such claim, action, suit, Proceeding proceeding or investigation, whether civilshall promptly notify the appropriate Indemnifying Party thereof, criminal, administrative or investigative and including all appeals thereof but the failure to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to so notify shall not relieve the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor Indemnifying Party of any liability it may have to such Indemnified Directors and Officers or any current or former employee Party if such failure does not materially prejudice the Indemnifying Party. In the event of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPTclaim, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending (whether arising before or asserted after the Effective Time), (i) the Indemnifying Party shall have the right to assume the defense thereof and the Indemnifying Party shall not be liable to such Indemnified Parties for any legal expenses of other counsel or claim made any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Indemnifying Party elects not to assume such defense or threatened within counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Indemnifying Party and the Indemnified Parties, the Indemnified Parties may retain counsel which is reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such period counsel for the Indemnified Parties (which may not exceed one firm in any jurisdiction); (ii) the Indemnified Parties will cooperate in the defense of any such matter; (iii) the Indemnifying Party shall continue until not be liable for any settlement effected without its prior written consent; and (iv) the final disposition Indemnifying Party shall have no obligation hereunder in the event that a federal or resolution thereofstate banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by applicable laws and regulations.
(dc) Prior BOH shall be permitted to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect maintain up to $5,000,000 in aggregate directors’ ' and officers’ ' liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo coverage for claims arising from facts acts or events that occurred on or omissions occurring prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a by persons who are currently covered by the directors’ ' and officers’ ' liability insurance policy insurer reasonably acceptable maintained by BOH and to CPT and Inuvo (purchase an extension of the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) claims reporting period for the policy providing such insurance coverage in an effort to reduce for a period of three years following the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable LawEffective Date. The obligations under this Section 6.11 premium for the year commencing August 1, 1999 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without exceed $17,875 and the consent of such affected Indemnified Party (it being expressly agreed that total premium for the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express thirdthree-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation year extension of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and claims reporting period 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 case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11exceed $14,000.
Appears in 1 contract
Sources: Merger Agreement (Pboc Holdings Inc)
Indemnification; Insurance. (a) The provisions with respect Company hereby agrees to indemnificationindemnify the Municipality for, advancement and hold it harmless from, all liability, damage, cost or expense (including reasonable attorney's fees) arising from claims of expenses and exculpation contained injury to persons or damage to property caused by reason of any negligent conduct undertaken by the Company, its employees or agents in the Parent Certificate of Incorporation construction, installation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder maintenance of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)Cable Television System.
(b) From and after The Company shall as of the Effective Time Date of this Franchise furnish to the Municipality evidence of a liability insurance policy or policies, in the form of a certificate of insurance naming the Municipality as an additional insured, which policy or policies or replacements thereof shall remain in effect throughout the term of this Franchise at the cost and until the expiration of any applicable statutes of limitation expense of the underlying claim Company; said policy and replacements shall be in the combined amount of Two Million Dollars ($2,000,000.00) for bodily injury and property damage issued by a company authorized to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administratorsdo business in New York State. In addition, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees Company shall carry Worker's Compensation insurance for its employees in such amounts as is required by the laws of the State of New York. The insurance coverage herein above referred to may be included in one or more policies covering other fees incurred to enforce risks of the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo Company or any of their respective Subsidiariesits affiliates, and arising out of actual subsidiaries or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Lawassigns.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of Notwithstanding any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officersprovision contained within this Franchise, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or Municipality and Company hereby expressly agree that the organizational documents of CPT’s or Inuvo’s Subsidiaries) Company shall survive the Mergers not be liable for and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after not indemnify the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions Municipality in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any degree whatsoever from and against any action, suitdemand, proceeding claims, losses, liabilities, suits or investigation pending proceedings arising out of or asserted related to any (i) programming carried over or claim made transmitted by or threatened within such period shall continue until through the final disposition Cable Television System (other than locally originated programming produced by the company), or resolution thereof.
(dii) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts negligent or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation intentional wrongdoing of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Municipality or any of its respective successors employees, agents or assigns officers. In the event the DTC Cable, Inc. finds it necessary to install additional facilities within the Town:
(ia) consolidates The Company hereby agrees that when and wherever it deems it economical and reasonably feasible, it shall enter into agreements with telephone or merges into electric or other utilities (collectively "utilities") for the use of said utilities’ poles or conduit space whereby said utilities shall provide use of and access to said poles or conduit space by the Company of the Company's lines and other equipment. Notwithstanding the above, where necessary to service Subscribers and where attachment to the pole(s) or conduit space of utilities is not economically reasonable or otherwise feasible, the Company may erect or authorize or permit others to erect any poles or conduit space or any other Person and facilities within the Streets of the Municipality pursuant to the issuance by the Municipality of any necessary authorization which shall not be unreasonably withheld or delayed.
(b) Subject to the continuing provisions of sub-paragraph (c), below, in such areas of the Municipality where it or surviving corporation any sub-division thereof shall hereafter duly require that all utility lines and related facilities be installed underground, the Company shall install its lines and related facilities underground in accordance with such requirement.
(c) Notwithstanding the foregoing, if the Company shall in any instance be unable to install or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all locate any part of its properties and assets property underground, then the Municipality, on being apprised of the facts thereof, shall permit such property to be installed above the ground even though other facilities in the area may be placed, or required to be placed, underground. However, any Person, then, and in each case, to the extent necessary, proper provision such permission shall be made so that on such conditions as the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11Municipality may reasonably require.
Appears in 1 contract
Sources: Franchise Agreement
Indemnification; Insurance. (a) The provisions Company shall, and, from and after the Closing Date, Republic and the Company shall, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Closing Date, an officer or director of the Company or any of its Subsidiaries (the "Indemnified Parties") against (i) all losses, claims, damages, costs, expenses, liabilities or judgments, or amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of, or in connection with, any claim, action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of the Company or any of its Subsidiaries, whether pertaining to any matter existing or occurring at or prior to the Closing Date and whether asserted or claimed prior to, or at or after, the Closing Date ("Indemnified Liabilities") and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby or thereby, in each case to the full extent a corporation is permitted under the DGCL (notwithstanding the By-laws of the Company or Republic) to indemnify its own directors, officers and employees, as the case may be (and the Company or Republic, as the case may be, shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by law upon receipt of any undertaking contemplated by Section 145(e) of the DGCL). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising before or after the Closing Date), (i) the Indemnified Parties may retain counsel satisfactory to them with the consent of the Company (or the consent of Republic and the Company after the Closing Date) which consent of the Company (or, after the Closing Date, Republic and the Company) with respect to indemnificationsuch counsel retained by the Indemnified Parties may not be unreasonably withheld, advancement (ii) the Company (or, after the Closing Date, Republic and the Company) shall pay all reasonable fees and expenses of expenses such counsel for the Indemnified Parties promptly as statements therefor are received, and exculpation contained (iii) the Company (or, after the Closing Date, Republic and the Company) shall use all reasonable efforts to assist in the Parent vigorous defense of any such matter; provided, however, that neither the Company nor Republic shall be liable for any settlement of any claim effected without its written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.15, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company and Republic (but the failure so to notify shall not relieve the Company or Republic from any liability which it may have under this Section 6.15, except to the extent such failure materially prejudices such party), and shall deliver to the Company (or, after the Closing Date, Republic and the Company) the undertaking contemplated by Section 145(e) of the DGCL. The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter, unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. The provisions of the Certificate of Incorporation and Parent Bylaws the By-laws of the Company with respect to indemnification and exculpation from liability shall not be amended, repealed or otherwise modified for a period of six (6) years after from the Effective Time Closing Date in any manner that would adversely affect the rights thereunder of the persons individuals who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at on or prior to the Effective TimeClosing Date were directors or officers of the Company, unless otherwise such modification is required by applicable Law (law. Republic shall cause the Company to keep and provided that all rights maintain in effect after the Closing Date the indemnification agreements with the individuals listed in Section 6.15 of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)Company Disclosure Schedule.
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the The provisions of this Section 6.11(b), Liabilities or amounts that 6.15 are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the each Indemnified Parties referred to hereinParty and his or her heirs and representatives.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect It is understood and agreed that, subject to indemnification, advancement of expenses and exculpation the limitations on indemnification contained in the Parent Delaware Act, the Company Certificate and other applicable law, the Company shall, to the fullest extent permitted under applicable law and regardless of Incorporation whether the Merger becomes effective, indemnify and Parent Bylaws hold harmless, and after the Effective Time, the Surviving Corporation shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to following the Effective Time, unless otherwise required by to the fullest extent permitted under applicable Law law, indemnify and hold harmless, each director and officer of the Company or any Subsidiary (and provided that all rights and, without limiting the generality of indemnificationthe foregoing, advancement of expenses and exculpation in respect as members of any claim asserted committee of the Board of Directors) on the date hereof or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after at the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersParties”) from and against all any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, expenses (including reasonable attorneys’ fees liabilities and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and investigation arising out of actual or alleged eventspertaining to any of the transactions contemplated hereby, actions including without limitation liabilities arising under the Securities Act or omissions occurring or alleged to have occurred at or prior to the Effective TimeExchange Act in connection with the Merger, and in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor event of any Indemnified Directors and Officers or any current or former employee of CPTsuch claim, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending (whether arising before or asserted after the Effective Time), (i) the Company or the Surviving Corporation shall pay the reasonable fees and expenses of not more than one (1) counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company or the Surviving Corporation, promptly as statements therefor are received, and (ii) the Company and the Surviving Corporation will cooperate in the defense of any such matter; provided, however, that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld or delayed). Notwithstanding anything to the contrary contained herein, Parent shall be entitled to assume the defense of any such matter and upon such assumption Parent shall not be liable to any Indemnified Party in connection with the defense thereof. Any Indemnified Party wishing to claim made indemnification under this Section 6.5 shall promptly notify Parent upon learning of any claim, action, suit, proceeding or threatened within such period investigation, provided that the failure to so notify shall continue until not affect the final disposition or resolution thereofobligations of Parent under this Section 6.5 except to the extent that Parent is prejudiced by any failure of an Indemnified Party to so notify Parent.
(db) Prior to For a period of six years following the Effective Time, Parent, CPT and/or Inuvo the Surviving Corporation shall maintain or obtain “tail” officers’ and directors’ liability insurance policies with a claims period of six (6) years from covering the Indemnified Parties who currently or at the Effective Time with respect to directors’ are covered by the Company’s officers and officers’ directors liability insurance policies on terms not less favorable than those in an amount effect on the date hereof in terms of coverage and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events amounts; provided, however, that occurred on or prior to if the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) aggregate annual premiums for such insurance at any time during such period exceed 150% of the premium paid by the Company for such insurance as of the date of this Agreement, then the Surviving Corporation shall provide the maximum coverage in that will then be available at an effort annual premium equal to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent 150% of such affected Indemnified Party (it being expressly agreed that per annum rate as of the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries date of this Section 6.11)Agreement. This Section 6.11 6.5 shall survive the consummation of the Mergers and Merger. Notwithstanding Section 9.7, this Section 6.5 is intended to be for the benefit of, of and shall be enforceable by, to grant third-party rights to the Indemnified Parties referred whether or not they are parties to this Agreement, and each of the Indemnified Parties shall be entitled to enforce the covenants contained herein.
(fc) If the Parent Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, then and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent Surviving Corporation shall assume the obligations set forth in this Section 6.116.5.
(d) Following the Effective Time, Parent and Surviving Corporation jointly and severally agree to pay all expenses, including reasonable attorney fees, that may be incurred by the Indemnified Parties in enforcing the indemnity and other obligations provided for in this Section 6.5 provided that it is ultimately determined that such Indemnified Party is entitled to be indemnified hereunder. Such fees shall be paid by the Parent or Surviving Corporation in advance of the final disposition of such action, suit or proceeding at the request of the Indemnified Party within twenty days after the receipt by Parent or Surviving Corporation of a statement or statements from the Indemnified Party requesting such advance or advances from time to time. Such statement or statements shall reasonably evidence the expenses and costs incurred by him in connection therewith and shall include or be accompanied by an undertaking by or on behalf of the Indemnified Party that he is entitled to receive indemnity pursuant to this Article VI and to repay such amount if it is ultimately determined that Indemnified Party is not entitled to be indemnified against such expenses and costs by the Parent or Surviving Corporation as provided by this Agreement.
Appears in 1 contract
Indemnification; Insurance. a. Licensee shall defend , hold free, safe and harmless and indemnify Licensor and Artist, and their respective affiliates, owners, directors, officers, members, employees , heirs, representatives , advisors and agents (acollectively, "Licensor Parties") The provisions with respect against, any and all claims, demands, disputes, causes of action or damages, including reasonable outside accountants ' and attorneys ' fees (collectively , "Claims"), arising out of, relating to indemnificationor referring to: (i) any act or omission of Licensee or any person or any other entity acting on Licensee's behalf or through Licensee or authorized by Licensee (whether or not approved by Licensor pursuant to this Agreement) (a "Third Party Contributor"), advancement (ii) any breach of expenses this Agreement by Licensee , any Third Party Contributor, any conventional retailer, or any other entity acting on Licensee 's behalf (whether or not approved by Licensor pursuant to this Agreement) , (iii) the manufacture , distribution, advertisement , promotion , sale, possession or use of any Product (including, but not limited to, claims relating to (w) any defect (whether obvious or hidden and exculpation contained whether or not present in any sample approved by Licensor) in a Product or in any packaging or other materials (including advertising materials), (x) any alleged injuries to persons or property, (y) any infringement by Licensee of any rights of any other person or entity (provided that claims that the Parent Certificate name "▇▇▇▇▇▇▇ ▇▇▇▇▇▇" as part of Incorporation and Parent Bylaws the Trademark infringes on a trademark or other intellectual property rights shall not be amendedindemnified by Licensee and shall be covered by Section 1S(c)) or (z) the failure by Licensee to comply with applicable laws, repealed regulations, standard s (including but not limited to those set out in Section 13(b), or otherwise modified for a period of six (6iv) years after any claim that any Product or any element thereof (other than the Effective Time in any manner that would adversely affect the rights thereunder name "▇▇▇▇▇▇▇ ▇▇▇▇▇▇" as part of the persons who at Trademark that has been approved for u se by Licensor) violates or infringes upon the trademark, copyright or other intellectual property rights (including trade dress and rights of publicity and privacy) of a third party, provided Licensee is given prompt written notice of and shall have the option to undertake and conduct the defense of any time prior such Claim, and provided, however, that the failure of Licensee to be notified shall not relieve Licensee of its obligation hereunder to the Effective Time were entitled extent such failure does not result in actual and material prejudice to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of Licensee. In any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim instance to which the indemnification relatesforegoing indemnities pertain, Parent Licensor shall indemnify, defend reasonably cooperate with and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, assist Licensee in connection with any such defense. Licensee shall reimburse Licensor Parties for all reasonable out-of- pocket costs actually incurred by Licensor Parties in connection with such cooperation and assistance. If in good faith reasonable business judgment Licensor deems it advisable to take control of the claim, action, suit, Proceeding Licensor can at its election take control over representation without waiving any rights to all or investigation, whether civil, criminal, administrative or investigative part of indemnification rights to payment of reasonable legal fees and including all appeals thereof costs. In any instance to which such indemnities pertain, Licensee shall keep Licensor fully advised of all developments pertaining to such Claim and shall not enter into a settlement of such Claim or admit liability or fault without Licensor 's prior written approval, unless such settlement includes an unconditional release of Licensor and Artist and does not include any Indemnified Directors obligation or restriction on either of them.
b. Licensee shall, throughout the Term of this Agreement and Officers is or may become any Sell-Off Period and for at least two (2) years thereafter, obtain and maintain at its own cost and expense from a party qualified insurance company acceptable to by virtue Licensor a general liability insurance policy including, without limitation, coverage for products liability and personal injury , naming each of his or her service Licensor and Artist as additional named insured. Such policy shall provide adequate protection with a present or former director or officer limit of CPTliability (in addition to costs of defense) of not less than Two Million Dollars ($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) in the aggregate, Inuvo or insuring, without limitation, against any and all claims, demands and causes of their respective Subsidiaries, and action arising out of actual any defects or failure to perform , alleged eventsor otherwise, actions of Products or omissions occurring any material used in connection therewith or alleged any use thereof. A certificate of insurance evidencing such coverage shall be furnished to have occurred Licensor within ten ( 10) days of the full execution of this Agreement. The insurance described in this Section is understood to be primary and is not subject to contribution by any other insurance which may be available to Licensor. Such insurance policy shall provide that the insurer shall not terminate or materially modify such policy or remove any of Licensor or Artist as additional insureds without prior written notice to Licensor at least thirty (30) days in advance thereof . Failure to timely obtain insurance shall be considered a material breach of this Agreement and shall give Licensor the right to terminate the Agreement on written notice to Licensee, if Licensee has failed to cure such breach within ten (10) days of Licensee's receipt of written notice thereof.
c. Licensor shall be solely responsible for, and shall defend, hold harmless and indemnify Licensee, its directors, officers, employees and agents (collectively "Licensee Parties") against any third party Claims arising out of an allegation relating to or prior referring to the Effective Time, in each case to use of the fullest extent permitted by applicable Law.
(c) Each name "▇▇▇▇▇▇▇ ▇▇▇▇▇▇" as part of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) Trademark as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect by Licensor in accordance with their terms. For the terms of this Agreement violates or infringes upon the trademark , copyright or other intellectual property rights (including trade dress) of a period third party in or to the Product, provided Licensor is given prompt written notice thereof and shall have the option to undertake and conduct the defense of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPTClaim. In any instance to which the foregoing indemnities pertain, Inuvo or Licensee shall cooperate fully with and assist Licensor in all respects in connection with any of their respective Subsidiaries such defense. Licensor shall reimburse Licensee for all reasonable out-of-pocket expenses actually incurred by Licensee Parties in connection with the Indemnified Parties such cooperation and assistance. In any instance to which such indemnities pertain, Licensor shall not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder enter into a settlement of such Indemnified Partiesthird party Claim or admit liability or fault without Licensee's prior written approval , and all unless such rights in respect settlement includes an unconditional release of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior Licensee. Notwithstanding anything to the Effective Timecontrary contained herein, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 Licensor shall not be terminated required to protect, indemnify or modified in such hold Licensee Parties harmless against, or be liable to Licensee Parties for, any liabilities, losses, expenses or damages which may be suffered or incurred by Licensee Parties as a manner as to affect adversely result of any Indemnified Party to whom this Section 6.11 applies without the consent infringement or allegation thereof by any other person, firm or corporation, other than by reason of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation Licensor's breach of the Mergers representations made and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to obligations assumed herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) From and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or employee of the Company or any of its subsidiaries (collectively, the "Indemnified Parties" and individually, an "Indemnified Party") against all losses, liabilities, expenses (including attorneys' fees), claims or damages in connection with any claim, suit, action, proceeding or investigation based in whole or in part upon the fact that such Indemnified Party is or was a director, officer or employee of the Company or any of its subsidiaries and arising out of acts or omissions occurring prior to and including the Effective Time (including but not limited to the transactions contemplated by this Agreement) to the fullest extent permitted by Nevada law, for a period of not less than six years following the Effective Time; provided, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims.
(b) The provisions of the Surviving Corporation Articles of Incorporation and the Surviving Corporation Bylaws with respect to indemnification, advancement of expenses indemnification and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons individuals who at any time prior to the Effective Time are or were entitled to indemnification, advancement current or former directors or officers of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) Company in respect of actions or omissions occurring at or prior to the Effective TimeTime (including, without limitation, the transactions contemplated by this Agreement), unless otherwise such modification is required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Lawlaw.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent the Surviving Corporation shall maintain in effect cause to be maintained the indemnification, exculpation current policies of directors' and advancement officers' liability insurance maintained by the Company covering the current and former directors and officers of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time Company with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or matters occurring prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition toprovided, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous to whom this Section 6.11 applies the current and their respective heirs, successors former directors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation officers of the Mergers Company than the policy in effect on the date hereof with respect to acts or failures to act prior to the Effective Time (including dollar amount and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any scope of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each casecoverage), to the extent necessarysuch policies are available; provided, proper provision that in no event shall the Surviving Corporation be made so that the successors and assigns required to expend, in order to maintain or procure insurance coverage pursuant to this Section 4.6(c), any amount per annum greater than 150% of the Parent current annual premiums paid by the Company for such insurance (which the Company represents and warrants to be not more than $225,000). If for any reason during such period the Surviving Corporation is unable to obtain such insurance for an annual premium of not more than $337,500, it shall assume the obligations set forth in this Section 6.11.notify ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, who will act as authorized representative of all such directors and officers (the
Appears in 1 contract
Indemnification; Insurance. a. Licensee shall defend , hold free, safe and harmless and indemnify Licensor and Artist, and their respective affiliates, owners, directors, officers, members, employees , heirs, representatives , advisors and agents (acollectively, "Licensor Parties") The provisions with respect against, any and all claims, demands, disputes, causes of action or damages, including reasonable outside accountants ' and attorneys ' fees (collectively , "Claims"), arising out of, relating to indemnificationor referring to: (i) any act or omission of Licensee or any person or any other entity acting on Licensee's behalf or through Licensee or authorized by Licensee (whether or not approved by Licensor pursuant to this Agreement) (a "Third Party Contributor"), advancement (ii) any breach of expenses this Agreement by Licensee , any Third Party Contributor, any conventional retailer, or any other entity acting on Licensee 's behalf (whether or not approved by Licensor pursuant to this Agreement) , (iii) the manufacture , distribution, advertisement , promotion , sale, possession or use of any Product (including, but not limited to, claims relating to (w) any defect (whether obvious or hidden and exculpation contained whether or not present in any sample approved by Licensor) in a Product or in any packaging or other materials (including advertising materials), (x) any alleged injuries to persons or property, (y) any infringement by Licensee of any rights of any other person or entity (provided that claims that the Parent Certificate name "▇▇▇▇▇▇▇ ▇▇▇▇▇▇" as part of Incorporation and Parent Bylaws the Trademark infringes on a trademark or other intellectual property rights shall not be amendedindemnified by Licensee and shall be covered by Section 1S(c)) or (z) the failure by Licensee to comply with applicable laws, repealed regulations, standard s (including but not limited to those set out in Section 13(b), or otherwise modified for a period of six (6iv) years after any claim that any Product or any element thereof (other than the Effective Time in any manner that would adversely affect the rights thereunder name "▇▇▇▇▇▇▇ ▇▇▇▇▇▇" as part of the persons who at Trademark that has been approved for u se by Licensor) violates or infringes upon the trademark, copyright or other intellectual property rights (including trade dress and rights of publicity and privacy) of a third party, provided Licensee is given prompt written notice of and shall have the option to undertake and conduct the defense of any time prior such Claim, and provided, however, that the failure of Licensee to be notified shall not relieve Licensee of its obligation hereunder to the Effective Time were entitled extent such failure does not result in actual and material prejudice to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of Licensee. In any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim instance to which the indemnification relatesforegoing indemnities pertain, Parent Licensor shall indemnify, defend reasonably cooperate with and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, assist Licensee in connection with any such defense. Licensee shall reimburse Licensor Parties for all reasonable out-of- pocket costs actually incurred by Licensor Parties in connection with such cooperation and assistance. If in good faith reasonable business judgment Licensor deems it advisable to take control of the claim, action, suit, Proceeding Licensor can at its election take control over representation without waiving any rights to all or investigation, whether civil, criminal, administrative or investigative part of indemnificati on rights to payment of reasonable legal fees and including all appeals thereof costs. In any instance to which such indemnities pertain, Licensee shall keep Licensor fully advised of all developments pertaining to such Claim and shall not enter into a settlement of such Claim or admit liability or fault without Licensor 's prior written approval, unless such settlement includes an unconditional release of Licensor and Artist and does not include any Indemnified Directors obligation or restriction on either of them.
b. Licensee shall, throughout the Term of this Agreement and Officers is or may become any Sell-Off Period and for at least two (2) years thereafter, obtain and maintain at its own cost and expense from a party qualified insurance company acceptable to by virtue Licensor a general liability insurance policy including, without limitation, coverage for products liability and personal injury , naming each of his or her service Licensor and Artist as additional named insured. Such policy shall provide adequate protection with a present or former director or officer limit of CPTliability (in addition to costs of defense) of not less than Two Million Dollars ($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) in the aggregate, Inuvo or insuring, without limitation, against any and all claims, demands and causes of their respective Subsidiaries, and action arising out of actual any defects or failure to perform , alleged eventsor otherwise, actions of Products or omissions occurring any material used in connection therewith or alleged any use thereof. A certificate of insurance evidencing such coverage shall be furnished to have occurred Licensor within ten ( 10) days of the full execution of this Agreement. The insurance described in this Section is understood to be primary and is not subject to contribution by any other insurance which may be available to Licensor. Such insurance policy shall provide that the insurer shall not terminate or materially modify such policy or remove any of Licensor or Artist as additional insureds without prior written notice to Licensor at least thirty (30) days in advance thereof . Failure to timely obtain insurance shall be considered a material breach of this Agreement and shall give Licensor the right to terminate the Agreement on written notice to Licensee, if Licensee has failed to cure such breach within ten (10) days of Licensee's receipt of written notice thereof.
c. Licensor shall be solely responsibl e for, and shall defend, hold harmless and indemnify Licensee, its directors, officers, employees and agents (collectively "Licensee Parties") against any third party Claims arising out of an allegation relating to or prior referring to the Effective Time, in each case to use of the fullest extent permitted by applicable Law.
(c) Each name "▇▇▇▇▇▇▇ ▇▇▇▇▇▇" as part of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) Trademark as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect by Licensor in accordance with their terms. For the terms of this Agreement violates or infringes upon the trademark , copyright or other intellectual property rights (including trade dress) of a period third party in or to the Product, provided Licensor is given prompt written notice thereof and shall have the option to undertake and conduct the defense of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPTClaim. In any instance to which the foregoing indemnities pertain, Inuvo or Licensee shall cooperate fully with and assist Licensor in all respects in connection with any of their respective Subsidiaries such defense. Licensor shall reimburse Licensee for all reasonable out-of-pocket expenses actually incurred by Licensee Parties in connection with the Indemnified Parties such cooperation and assistance. In any instance to which such indemnities pertain, Licensor shall not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder enter into a settlement of such Indemnified Partiesthird party Claim or admit liability or fault without Licensee's prior written approval , and all unless such rights in respect settlement includes an unconditional release of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior Licensee. Notwithstanding anything to the Effective Timecontrary contained herein, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 Licensor shall not be terminated required to protect, indemnify or modified in such hold Licensee Parties harmless against, or be liable to Licensee Parties for, any liabilities, losses, expenses or damages which may be suffered or incurred by Licensee Parties as a manner as to affect adversely result of any Indemnified Party to whom this Section 6.11 applies without the consent infringement or allegation thereof by any other person, firm or corporation, other than by reason of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation Licensor's breach of the Mergers representations made and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to obligations assumed herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect through the rights thereunder sixth anniversary of the persons who at any time prior to Effective Time, the Acquiror (the "Indemnifying Party") shall indemnify and hold harmless each present and former director, officer and employee of the Company determined as of the Effective Time were entitled to indemnification(the "Indemnified Parties"), advancement against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of expenses matters existing or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent to which such Indemnified Parties were entitled under the Articles of Organization or Bylaws of the Company in effect on the date hereof, provided, however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after . Without limiting the Effective Time and until foregoing obligation, the expiration Acquiror also agrees that all limitations of any applicable statutes of limitation liability existing in favor of the underlying claim to which Indemnified Parties in the indemnification relates, Parent shall indemnify, defend Articles of Organization and hold harmless Bylaws of the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwiseCompany, in connection with any claimeach case as in effect on the date hereof, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual matters existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) Time shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms. For for a period of six (6) years after from the Effective Time, Parent shall maintain in effect the indemnificationprovided, exculpation and advancement of expenses provisions of CPT Certificate of Incorporationhowever, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or claim asserted or claim made or threatened within such period shall continue until the final disposition of such claim.
(b) Any Indemnified Party wishing to claim indemnification under Section 5.8(a), upon learning of any such claim, action, suit, proceeding or resolution investigation, shall promptly notify the Indemnifying Party, but the failure to so notify shall not relieve the Indemnifying Party of any liability it may have to such Indemnified Party if such failure does not materially prejudice the Indemnifying Party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Indemnifying Party shall have the right to assume the defense thereof and the Indemnifying Party 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 Indemnifying Party elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Indemnifying Party and the Indemnified Parties, the Indemnified Parties may retain counsel which is reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified parties (which may not exceed one firm in any jurisdiction unless the use of one counsel for such Indemnified parties would present such counsel with a conflict of interest), (ii) the Indemnified Parties will cooperate in the defense of any such matter, (iii) the Indemnifying Party shall not be liable for any settlement effected without its prior written consent and (iv) the Indemnifying Party shall have no obligation hereunder in the event a federal banking agency or a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) The Acquiror shall cause the Surviving Corporation to maintain the Company's existing directors' and officers' liability insurance policy as of the date hereof (or a policy providing coverage on substantially the same terms and conditions) for acts or omissions occurring prior to the Effective Time by persons who are currently covered by such insurance policy maintained by the Company for a period of three years following the Effective Time.
(d) Prior to In the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed event that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Acquiror or any of its respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each case, to the extent necessary, proper provision shall be made so that such case the successors and assigns of the Parent such entity shall assume the obligations set forth in this Section 6.115.8, which obligations are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each director and officer covered hereby.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnificationA. Licensee shall, advancement at all times during the term of expenses this Agreement and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amendedthereafter, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless ISURF (including ISURF’s trustees, members, officers, directors, employees affiliates and independent contractors), Iowa State University (including Iowa State University’s trustees, members, officers, directors, employees, students, affiliates and independent contractors), and the present and former officers directors inventors of CPT, Inuvo and their respective Subsidiaries the Licensed Patents (collectively, together with their respective heirs, executors and administrators, the hereinafter referred to each as an “Indemnified Directors Party” and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred collectively referred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”), harmless against any and all claims, proceedings, demands, liabilities, losses and expenses, including legal expenses and reasonable attorneys fees, arising out of or relating to: (i) as provided Licensee’s exercise of any right conveyed under or breach of this Agreement (ii) sublicensee’s exercise of any right hereunder to Licensee, breach of the agreement containing the sublicense or act or omission of willful misconduct or negligence; (iii) the Products, including death of or injury to any person or persons or out of any damage to any business interest or property; and/or the production, manufacture, sale, use, lease, import, export, consumption or advertisement of Products; (iv) exhaustion of ISURF’s rights in CPT Certificate patents, that were not included in the Licensed Patents, such exhaustion due to actions or inaction by or on behalf of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo Licensee or any sublicensee; and (v) any third party’s breach of their respective Subsidiaries with its agreement regarding the manufacture of the Products or act or omission of willful misconduct or negligence. Without ISURF’s prior written approval, Licensee shall not admit the fault of or create any obligations on any Indemnified Parties Party. Each Indemnified Party has the right to select and not retain counsel of its own choosing to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofdefend its interests.
(d) Prior B. Licensee agrees to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ continuously maintain liability insurance in an amount coverage appropriate to assure its indemnification and scope reasonably acceptable to CPT other obligations under this Agreement and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage sufficiently covers the Indemnified Parties. Within ninety (90) days after the execution of this Agreement and thereafter annually between January 1 and January 31 of each year, Licensee will present evidence to ISURF that the insurance coverage is being maintained. In addition, Licensee shall provide ISURF with at least thirty (30) days prior written notice of any change in an effort to reduce or cancellation of the cost thereofinsurance coverage.
(e) The rights of each Indemnified Party hereunder shall be in addition toC. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN NO EVENT SHALL THE INDEMNIFIED PARTIES OR THEIR AGENTS BE LIABLE FOR ANY REASON WHATSOEVER FOR ANY INDIRECT, and not in limitation ofSPECIAL, any other rights such Indemnified Party may have under the CPT Certificate of IncorporationINCIDENTAL, the CPT BylawsEXEMPLARY, the Inuvo Articles of IncorporationCONSEQUENTIAL, the Inuvo BylawsPUNITIVE OR ANY OTHER DAMAGES, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirsINCLUDING TO LICENSEE OR SUBLICENSEE, successors and assigns shall be express thirdANY CUSTOMERS OR DISTRIBUTORS OF LICENSEE OR SUBLICENSEE OR TO ANY END USERS OF PRODUCTS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY RELATED AGREEMENT, OR THE PERFORMANCE OR NON-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit ofPERFORMANCE HEREOF OR THEREOF, and shall be enforceable byOR OUT OF THE USE, the Indemnified Parties referred to hereinPERFORMANCE OR NONPERFORMANCE OF ANY PRODUCT INCLUDING, BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL,THE SUPPLY OF ANY INFORMATION TO LICENSEE PURSUANT TO THIS AGREEMENT OR ANY RELATED AGREEMENT OR OUT OF THE USE OF SUCH INFORMATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Sources: Exclusive License Agreement
Indemnification; Insurance. (a) The provisions Company shall indemnify and hold harmless each of WIC, its affiliates, and their respective directors, officers, partners, members, controlling persons (within the meaning of Section 15 of the Securities Act of 1933 or Section 20(a) of the Securities Exchange Act of 1934), if any, agents and employees (collectively referred to as "Indemnified Persons" and individually as an "Indemnified Person") from and against any and all claims, liabilities, losses, damages and expenses incurred by any Indemnified Person (excluding those resulting from the gross negligence or willful misconduct of the Indemnified Person) and fees and disbursements of the respective Indemnified Person's counsel) which (i) are related to or arise out of (A) actions taken or omitted to be taken (including any untrue statements made or any statements omitted to be made) by the Company or any of its subsidiaries or (B) actions taken or omitted to be taken by an Indemnified Person with the Company's or any of its subsidiaries' consent or in conformity with the Company's or any such subsidiaries' instructions or the Company's or any such subsidiaries' actions or omissions or (ii) are otherwise related to or arise out of WIC's engagement hereunder, and will reimburse each Indemnified Person for all costs and expenses, including fees of any Indemnified Person's counsel, as they are incurred, in connection with investigating, preparing for, defending, or appealing any action, formal or informal claim, investigation, inquiry or other proceeding, whether or not in connection with pending or threatened litigation, caused by or arising out of or in connection with WIC's acting pursuant to the engagement hereunder, whether or not any Indemnified Person is named as a party thereto and whether or not any liability results therefrom. The Company will not however, be responsible for any claims, liabilities, losses, damages, or expenses pursuant to clause (ii) of the preceding sentence that have resulted primarily from WIC's gross negligence or willful misconduct. The Company also agrees that neither WIC nor any other Indemnified Person shall have any liability to the Company or any of its subsidiaries for or in connection with such engagement except for any claims, liabilities, losses, damages, or expenses incurred by the Company or any such subsidiary to the extent the same have resulted from WIC's gross negligence or willful misconduct. The Company further agrees that it will not, and the Company will cause its subsidiaries to not, without the prior written consent of WIC, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of WIC and each other Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceeding. The foregoing right to indemnity shall be in addition to any rights that WIC and/or any other Indemnified Person may have at common law or otherwise and shall remain in full force and effect following the completion or any termination of the engagement. The Company hereby consents, and shall cause its subsidiaries to consent, to personal jurisdiction and to service and venue in any court in which any claim which is subject to this agreement is brought against WIC or any other Indemnified Person. It is understood that, in connection with WIC's engagement, WIC may also be engaged to act for the Company or any of its subsidiaries in one or more additional capacities, and that the terms of this engagement or any such additional engagement may be embodied in one or more separate written agreements. Unless such additional engagement is undertaken with respect to indemnificationa matter that is the subject of another written agreement that contains a specific provision(s) dealing with indemnification of WIC, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws this indemnification shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior apply to the Effective Time were entitled engagement specified in Section 1 hereof as well as to indemnification, advancement any such additional engagement(s) and any modification of expenses said engagement or exculpation under such additional engagement(s) and shall remain in full force and effect following the CPT Certificate completion or termination of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, said engagement or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)additional engagements.
(b) From and after At the Effective Time and until the expiration inception of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her individual's service as a present member of the Board of Directors of the Company (or former director its Executive Committee) or officer as the Chief Executive Officer or Chief Financial Officer of CPTthe Company pursuant to Section 3(a), Inuvo 3(b) or any 3(c) hereof, the Company shall enter into an Indemnification Agreement with such individual in substantially the form and substance the same as agreements then providing indemnification for other members of their respective Subsidiaries, and arising out the Company's Board of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable LawDirectors.
(c) Each of Parent, CPT The Company shall purchase and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor maintain insurance on behalf of any Indemnified individual serving as a member of the Board of Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws Company (or its Executive Committee) or as the organizational documents Chief Executive Officer or Chief Financial Officer of CPT’s the Company pursuant to Sections 3(a), (b) or Inuvo’s Subsidiaries(c) shall survive the Mergers and shall continue hereof against any liability that may be asserted against or expense that may be incurred by such individual in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries connection with the Indemnified Parties Company's activities. Such insurance shall be of a nature and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies consistent with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition toother, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit ofsimilar publicly traded companies, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so at least as extensive as that the successors and assigns purchased on behalf of the Parent shall assume the obligations set forth in this Section 6.11Company's other officers and directors, if applicable.
Appears in 1 contract
Indemnification; Insurance. 5.1 Tenant shall indemnify and hold harmless Landlord and its Agents, against and from any and all Claims arising from or related to the following: (a) Subtenant's use of the Sublease Premises or any activity done, permitted or suffered by Subtenant in, on or about the Sublease Premises, the Building, or the Project; (b) any act or omission by Subtenant or its Agents in connection with or related to the Sublease, the Sublease Premises, the Building, or the Project; (c) any Hazardous Material used, stored, released, disposed, generated, or transported by Subtenant or its Agents in, on, or about the Sublease Premises, the Building or the Project, including without limitation, any Claims arising from or related to any Hazardous Material investigations, monitorings, cleanup or other remedial action; and (d) any action or proceeding brought on account of any matter referred to in items (a), (b), and/or (c). If any action or proceeding is brought against Landlord by reason of any such Claims, upon notice from Landlord, Tenant shall defend the same at Tenant's expense with counsel reasonably satisfactory to Landlord. The provisions obligations of Tenant under this Section 5.1 shall survive any termination of the Sublease or the Master Lease.
5.2 Notwithstanding any provision to the contrary in the Sublease, Subtenant shall, at Subtenant's expense, with respect to indemnificationthe Sublease Premises, advancement secure and keep in force during the term of expenses the Sublease such insurance as required of Tenant under the Master Lease. Without limiting the generality of the immediately preceding sentence, the policy or policies of such insurance shall name Landlord and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws its lenders, if any, as additional insureds. A certificate evidencing such insurance shall not be amended, repealed or otherwise modified for a period of six (6) years delivered to Landlord promptly after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s date hereof.
5.3 Landlord and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of Subtenant hereby mutually waive any claim asserted against the other during the Term for any injury to a person or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim loss or damage to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual property located on or alleged events, actions or omissions occurring or alleged to have occurred at or prior to about the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and OfficersPremises, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (Building or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost Property that is reasonable and customary for tail caused by perils covered by insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (carried by the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s respective parties or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended required to be for carried by the benefit ofMaster Lease or this Agreement, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each caseas applicable, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent proceeds of such insurance actually received (or which would have been received but for the failure of the party required to maintain the applicable insurance to maintain such insurance as required under the Master Lease) with respect to such injury, loss or damage, whether or not due to the negligence of the other party of its agents. Because the foregoing waivers will preclude the assignment of any claim by way of subrogation to an insurance company or any other person, each party now agrees to immediately give to its insurer written notice of the terms of these mutual waivers and shall assume have their insurance policies endorsed to prevent the obligations set forth in this Section 6.11.invalidation of the insurance coverage because of these waivers. Nothing in
Appears in 1 contract
Indemnification; Insurance. 22.1 Metropolitan shall indemnify and hold Darien, its officers, directors, affiliates, agents, employees and shareholders harmless from and against any loss, liability, damage, injury, death, cost or expense, including, without limitations attorneys' fees and disbursements (including those incurred in establishing liability under the indemnification), in all cases, after giving effect to the receipt of any insurance proceeds ("Losses"), arising out of or resulting from (i) any Concert, or other event produced by Metropolitan at the Center or any contract or other agreement entered into by Metropolitan with respect to any such Concert or other event (including, without limitation, nonappearance by any performer and injury to any person at any Concert), (ii) noncompliance by Metropolitan with all applicable Laws and Approvals or (iii) the breach of any agreement, duty or obligation of Metropolitan contained in this Lease; provided, however, that nothing contained herein shall require Metropolitan -------- ------- to indemnify any party under this Section 22.1 for Losses arising out of the willful misconduct or gross negligence of Darien, its employees (except to the extent then under the direction of Metropolitan) or its agents.
22.2 Darien shall indemnify and hold Metropolitan, its officers, directors, affiliates, agents, employees and shareholders harmless from and against any Loss arising out of or resulting from (i) any Darien Event or any contract or other agreement entered into by Darien with respect to such Darien Event (including nonappearance by any performance and injury to any person at any Darien Event), (ii) noncompliance by Darien with all applicable Laws and Approvals or (iii) the breach of any agreement, duty or obligation of Darien contained in this Lease; provided, however, that -------- ------- nothing contained herein shall require Darien to indemnify any party under this Section 22.2 for Losses arising out of the willful misconduct or gross negligence of Metropolitan, its employees (except to the extent then under the direction of Darien) or its agents.
(a) Promptly after receipt by any indemnified party of notice of any demand, claim or circumstance which would or might give rise to a claim or the commencement (or threatened) commencement) of any action, proceeding or investigation (an "Asserted Liability") that may result in a Loss, such indemnified party shall give prompt notice thereof (the "Claims Notice") to the indemnifying party. The provisions with respect Claims Notice shall describe the Asserted Liability in reasonable detail and shall indicate the amount (estimated, if necessary, and to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6extent feasible) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to Loss that has been or may be suffered by the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)indemnified party.
(b) From The indemnifying party may elect to defend, at its own expense and after with its own counsel, any Asserted Liability unless (i) the Effective Time Asserted Liability seeks an injunction or other equitable or declaratory relief against any indemnified party, (ii) any indemnified party shall have reasonably concluded that there is a conflict of interest between such indemnified party and until the expiration indemnifying party in the conduct of such defense or (iii) any applicable statutes indemnified party shall have reasonably concluded that the Asserted Liability may adversely affect, or result in an adverse effect upon, the business, operations or prospects of limitation such indemnified party. If the indemnifying party elects to defend such Asserted Liability, it shall within thirty days (or sooner, if the nature of the underlying Asserted Liability so requires) notify the indemnified party or parties of its intent to do so, and the indemnified party or parties shall cooperate, at the expense of the indemnifying party, in the defense of such Asserted Liability. If the indemnifying party elects not to defend the Asserted Liability, is not permitted to defend the Asserted Liability by reason of the first sentence of this Section, fails to notify the indemnified party or parties of its election as herein provided or contests its obligation to indemnify under this Lease with respect to such Asserted Liability, the indemnified party or parties may pay, compromise or defend such Asserted Liability at the sole cost and expense of the indemnifying party. Notwithstanding the foregoing, neither party may settle or compromise any claim over the reasonable written objection of the other, provided that any indemnified party may settle or compromise any -------- claim as to which the indemnifying party has failed to notify such indemnified party of its election under this Section, as to which the indemnifying party is contesting its indemnification relatesobligations hereunder or involving an Asserted Liability of the type described in clause (iii) of the first sentence of this Section. In any event, Parent each party may participate, at its own expense, in the defense of any Asserted Liability. If the indemnifying party chooses to defend any Asserted Liability, each indemnified party shall indemnifymake available to the indemnifying party any books, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees records or other fees incurred to enforce the documents within its control that are necessary or appropriate for such defense. Any Losses of any indemnified party for which indemnification is available hereunder shall be paid within 30 days following written demand therefor. The provisions of Sections 22.1 - 22.3 shall survive the termination of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable LawLease.
(c) Each of Parent, CPT indemnified party acknowledges and Inuvo agrees, agrees that all rights Losses shall be determined after giving effect to indemnification, exculpation and advancement of expenses now existing in favor the receipt by such indemnified party of any Indemnified Directors and Officers insurance proceeds covering all or any current or former employee portion of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors Loss and administrators, and that such party irrevocably waives any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or rights it might otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights have under this Section 22 in respect of any actionportion of any Loss to the extent of such insurance proceeds. No person or entity (including, suitwithout limitation, proceeding or investigation pending or asserted or claim made or threatened within any insurance carrier) shall have any rights (including by way of subrogation) to receive any payment from the indemnifying party in respect of the portion of any Loss covered by such period shall continue until the final disposition or resolution thereofinsurance proceeds.
(d) Prior As used in Section 22, the term "Losses" as it applies to the Effective Timenonappearance by any performer at a Concert shall not include any damages of Darien arising out of any loss of attendance at the Theme Park caused by such nonappearance.
22.4 During the Term, ParentMetropolitan shall procure or cause to be procured and maintain at all times the following insurance with insurers reasonably acceptable to Darien:
(a) Worker's Compensation insurance as prescribed by the laws of the State of New York; and
(b) Comprehensive general, CPT and/or Inuvo automobile, fire and legal liability insurance (including dramshop liability) with combined single limits of not less than $1,000,000 for any one occurrence in which bodily injury or property damage is alleged, provided, however, that Metropolitan shall obtain “tail” maintain at all times during the Term of this Lease an umbrella insurance policies with a claims period policy in an amount of six (6) years from the Effective Time at least $5,000,000 per occurrence with respect to directors’ and officers’ liability each type of claim for bodily injury or property damage referred to in this Section.
22.5 Metropolitan shall furnish Darien copies of all applicable insurance in an amount and scope policies (which shall be reasonably acceptable in form and substance to CPT Darien) and Inuvo for claims arising from facts or events Certificates of Insurance evidencing such coverage which shall name Darien as an additional insured on each such policy (other than worker's compensation polices) and which will provide that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall would not be terminated cancelled or modified in such a manner as without at least thirty (30) days' prior written notice to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to hereinDarien.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Sources: Lease Agreement (Premier Parks Inc)
Indemnification; Insurance. (a) The From and after the Effective Time, Parent shall cause the Surviving Company to fulfill and honor in all respects the obligations of the Company or any of its present or former Subsidiaries to each Person who is now, or has been at any time prior to the date hereof, an officer, director or limited liability company manager of the Company or any of its present or former Subsidiaries (including any individual serving as a fiduciary of any employee benefit plan of the Company or any of its present or former Subsidiaries) and each Person Controlling any of the foregoing Persons (collectively, the “Company Indemnified Parties”) for indemnification and advancement of expenses pursuant to any indemnification provisions under the Organizational Documents of the Company or any of its present or former Subsidiaries as in effect on the date of this Agreement and pursuant to any indemnity agreement as in effect on the date of this Agreement by and between the Company or any of its present or former Subsidiaries and any Company Indemnified Party (each, an “Indemnity Agreement”). From and after the Effective Time, Parent shall cause the Surviving Company and its Subsidiaries to maintain in their respective Organizational Documents the provisions with respect to indemnification, advancement of expenses indemnification and exculpation contained from liability as set forth in the Parent Certificate respective Organizational Documents of Incorporation the Company and Parent Bylaws its Subsidiaries as of the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)Company Indemnified Party.
(b) From and after the Effective Time and until Time, the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Surviving Company shall indemnify, defend and hold harmless each of the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Company Indemnified Directors and Officers”) Parties against all losses, claims, damages, liabilities, obligations, costs and expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bfees), Liabilities or judgments, fines, penalties and amounts that are paid in settlement incurred by or imposed on any of the Company Indemnified Parties in any way arising out of, or otherwise, in connection with with, pertaining to or by reason of (i) their respective status as an officer, director or limited liability company manager of the Company or any of its present or former Subsidiaries now or at any time prior to the date hereof (including serving as a fiduciary of any employee benefit plan of the Company or any of its present or former Subsidiaries) or as a Controlling Person of any of the foregoing, or (ii) any acts or omissions, or alleged acts or omissions, by any of them in their respective capacities as such, whether incurred or imposed before, at or after the Effective Time. In the event of any claim, actioninvestigation or Litigation in respect of any matter described in clause (i) or (ii) of the preceding sentence (each, suitan “Action”), Proceeding or investigation(A) the Surviving Company shall, whether civilwithin ten (10) days following a request therefor, criminal, administrative or investigative pay on an as-incurred basis the fees and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue expenses of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior counsel to the Effective TimeCompany Indemnified Party in advance of the final disposition of such Action, upon receipt by the Surviving Company of an undertaking by or on behalf of the Company Indemnified Party to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that the Company Indemnified Party is not entitled to be indemnified as authorized in each case this Section 5.6 and (B) the Surviving Company shall be entitled to control the defense of such Action with counsel of its own choosing that is reasonably acceptable to the fullest extent permitted Company Indemnified Party, will actively defend such Action and will consult with the Company Indemnified Party with respect to significant decisions in the defense of such Action and take such Person’s views into account in good faith; provided that the Surviving Company shall not enter into any settlement of such Action without the prior written consent of the Company Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned) unless such settlement is solely for monetary damages, does not involve any finding or determination of wrongdoing or violation of Law by applicable Lawthe Company Indemnified Party and provides for a full, unconditional and irrevocable release of the Company Indemnified Party from all liability in connection with such Action; and provided, further, that if the Surviving Company does not actively defend such Action, the Company Indemnified Party shall be entitled to assume the defense of such Action with counsel of its own choosing at the expense of the Company (provided that the Company Indemnified Party shall not enter into any settlement of such Action without the prior written consent of the Surviving Company, which consent shall not be unreasonably withheld, delayed or conditioned).
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after following the Effective Time, Parent the Surviving Company shall maintain cause to be maintained directors’ and officers’ and fiduciary liability insurance covering the Company Indemnified Parties who are currently covered, in effect their capacities as directors and officers or as fiduciaries of any employee benefit plan, by the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPTCompany’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of its Subsidiaries’ existing directors’ and officers’ and fiduciary liability insurance policies (collectively, the “Insured Company Indemnified Parties”), which insurance shall provide the same coverage and be on the same terms as such existing insurance; provided that Parent and the Surviving Company shall not be required, in order to maintain or procure such coverage, to pay an annual premium in excess of three hundred percent (300%) of the aggregate of the current annual premiums paid by the Company and its Subsidiaries for their respective Subsidiaries with existing coverage (the “Premium Cap”); provided, further, that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of the Premium Cap, Parent and the Surviving Company shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Premium Cap. Notwithstanding the foregoing, the Company and the Parent shall co-operate in good faith and use their reasonable best efforts, prior to the Closing, to purchase directors’ and officers’ and fiduciary liability insurance tail coverage for the Insured Company Indemnified Parties providing the coverage described in, and on the terms and conditions set forth in, the first sentence of this Section 5.6(c). To the extent the premium for such tail coverage has not been paid prior to amendthe close of business on the day immediately preceding the Closing Date, repeal Parent shall, or otherwise modify shall cause the Surviving Company to, pay such provisions premium promptly when due, and, to the extent the premium for such tail coverage has been paid prior to the close of business on the day immediately preceding the Closing Date, the lesser of (i) the amount of such premium payment and (ii) the amount that is six (6) times the Premium Cap shall be added to the Closing Cash. If such tail coverage is purchased, and provided that such coverage remains in effect for the six (6) years following the Effective Time, the Surviving Company shall be deemed to have satisfied its obligations under the first sentence of this Section 5.6(c). The Surviving Company shall not cancel or reduce any manner such tail coverage or take any other action that would adversely affect impair the rights thereunder coverage thereunder. Any insurance proceeds received by Parent or the Surviving Company from any liability insurance policies purchased or maintained in accordance with this Section 5.6(c) shall be paid to the Insured Company Indemnified Party, to the extent Parent or the Surviving Company has not already paid the liability on behalf of the Insured Company Indemnified Party or reimbursed the Insured Company Indemnified Party therefor, as promptly as practicable after receipt of such Indemnified Partiesproceeds by Parent or the Surviving Company, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until as the final disposition or resolution thereofcase may be.
(d) Prior to The Surviving Company shall pay, as and when incurred, all reasonable fees, costs and expenses, including reasonable attorneys’ fees and expenses and court costs, that may be incurred by the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from Company Indemnified Parties in enforcing the Effective Time with respect to directors’ indemnity and officers’ liability insurance other obligations provided for in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereofthis Section 5.6.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 5.6 shall survive the consummation of the Mergers and Closing, is intended to be for the benefit ofof and may be enforced directly by each of the Company Indemnified Parties and the Insured Company Indemnified Parties, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys binding on all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent and the Parent shall assume the obligations set forth in this Section 6.11Surviving Company.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect 8.1 Supplier agrees to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPTCustomer, Inuvo its Affiliates and their respective Subsidiaries (collectivelyofficers, together with their respective heirsdirectors, executors employees and administrators, the “Indemnified Directors agents from and Officers”) against all losses, claimsliabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees fees) arising out of claims, suits or proceedings brought by a third party to the extent resulting from any negligent, malfeasant, willful or unlawful conduct by any Supplier Indemnitees or Supplier’s breach of this Agreement.
8.2 Customer agrees to and shall indemnify, defend and hold harmless Supplier and its Affiliates and their respective officers, directors, employees and agents (collectively, “Supplier Indemnitees”) from and against any and all liabilities, damages, losses, costs and expenses (including any reasonable attorneys’ fees fees) arising out of claims, suits or other fees incurred proceedings brought by a third party to enforce the provisions extent resulting from (i) any actual or alleged defects in the design of any Product and/or the Product Specifications; (ii) any Customer breach of this Section 6.11(b)Agreement; (iii) death of or bodily injury to any person, Liabilities or amounts that are paid in settlement property damage, on account of, or in relation to, any Product; (iv) any acts, negligent or otherwise, or willful malfeasance on the part of Customer or its employees and/or agents, in connection with Customer’s design, sale, marketing or distribution of Product; and/or (v) any claimclaims or allegations that the design, actionmanufacture, suituse or sale of any Product manufactured by Supplier hereunder constitutes or [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, Proceeding MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. creates an infringement of any United States or investigationnon-United States patent, whether civilcopyright, criminaltrademark or other proprietary right or trade secret, administrative be it registered or investigative and including all appeals thereof to which any Indemnified Directors and Officers is otherwise, arising under federal, state or may become a party to by virtue of his or her service as a present or former director or officer of CPTother law and/or regulation, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Timeexcept, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”i)-(v). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessaryresulting from any negligent, proper provision malfeasant, willful or unlawful conduct by any Supplier Indemnitees or Supplier’s breach of this Agreement.
8.3 Whenever an indemnified party becomes aware of a claim, suit or proceeding as to which it believes it is entitled to indemnification under this Article, it shall be made so that give notice in writing to the successors and assigns indemnifying party, shall permit indemnifying party to assume exclusive control of the Parent defense or settlement of the matter, and shall assume provide, at the expense of indemnifying party, all authority, information and assistance which indemnifying party may reasonably request for purposes of such defense. An indemnified party may engage its own counsel, at its own expense, to monitor the defense of any such matter. In no event shall the indemnifying party be entitled to settle any of the above-mentioned claims in a manner that admits liability of the indemnified party or otherwise subjects the indemnified party to any obligations set forth in without the indemnified party’s consent, which shall not be unreasonably withheld, conditioned or delayed.
8.4 The obligations of indemnification and cooperation under this Section 6.11Article 8 shall survive the termination of this Agreement for any reason.
Appears in 1 contract
Sources: Manufacturing and Supply Agreement (Airxpanders Inc)
Indemnification; Insurance. (ai) The provisions To the fullest extent permitted by law, from and after the Closing Date, all rights to indemnification as of the date hereof in favor of the directors, officers, employees and agents of the Company or any of its Subsidiaries with respect to indemnificationtheir activities as such prior to the Closing Date and, advancement of expenses and exculpation contained with respect to the Transaction Committee also, after the Closing Date, as provided in the Parent Certificate bye-laws or other organizational documents of Incorporation the Company and Parent Bylaws shall not be amendedits Subsidiaries in effect on the date hereof, repealed or otherwise modified in effect on the date hereof, shall continue in full force and effect for a period of not less than six (6) years after from the Effective Time in Closing Date. The Purchasers shall not cause the Company to take any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)action inconsistent with this Section D.4.h.
(bii) From and To the extent, if any, not provided by an existing right of indemnification or other agreement or policy, after the Effective Time and until Closing Date, the expiration of any Company shall, to the fullest extent permitted by applicable statutes of limitation of the underlying claim to which the indemnification relateslaw, Parent shall indemnify, defend indemnify and hold harmless the harmless, each present and former officers directors director or officer of CPT, Inuvo and their respective the Company or any of its Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersParties”) against all costs and expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, expenses (including reasonable attorneys’ fees liabilities and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or settlement amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding proceeding or investigationinvestigation (whether arising before or after the Closing Date), whether civil, criminal, administrative or investigative and including all appeals thereof investigative, arising out of or pertaining to which any Indemnified Directors and Officers is action or may become a party to by virtue of his or her service omission in their capacity as a present director, officer, employee or former director or officer agent of CPT, Inuvo the Company or any of their respective its Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case before the Closing Date (including the transactions contemplated by this Agreement) and, with respect to the fullest Transaction Committee, also after the Closing Date. In the event of any such costs, expenses, judgments, fines, losses, claims, damages, liabilities or settlement amounts (whether or not arising before the Closing Date), (A) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received, and otherwise advance to the Indemnified Parties upon request reimbursement of documented expenses reasonably incurred, in either case, to the extent permitted not prohibited by the applicable Lawlaw and (B) the Company shall cooperate in the defense of any such matter. In the event any Indemnified Party is required to bring any action to enforce rights or to collect moneys due under this Agreement and is successful in such action, the Company shall reimburse such Indemnified Party for all of its expenses in bringing and pursuing such action.
(ciii) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of at least six (6) years after the Effective TimeClosing Date, Parent the Company shall maintain cause to be maintained in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount policies maintained by the Company and scope reasonably acceptable its Subsidiaries or substitute policies with at least the same coverage containing terms and conditions which are substantially equivalent with respect to CPT and Inuvo for claims arising from facts or events that occurred on or matters occurring prior to the Effective Time at a Closing Date, but the Company shall not, in any event, be required to pay more than 200% of the current cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for of such insurance coverage in an effort to reduce the cost thereofcoverage.
(eiv) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under In the CPT Certificate of Incorporation, event the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Company or any of its respective successors or assigns (iA) consolidates with or merges into any other Person person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (iiB) transfers or conveys all or substantially all of its properties and assets to any Personperson, then, and in each either such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent Company, shall assume the obligations set forth in this Section 6.11D.4.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect Time, Parent shall cause the rights thereunder of Surviving Corporation to indemnify, defend and hold harmless to the persons fullest extent permitted under applicable law each person who is now, or has been at any time prior to the Effective Time were entitled to indemnificationdate hereof, advancement an officer or director of expenses the Company or exculpation under the CPT Certificate of Incorporationany Subsidiary thereof (individually, an "Indemnified Party" and, collectively, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “"Indemnified Directors and Officers”Parties") against all losses, claims, damages, liabilities, costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b' fees), Liabilities or judgments, fines, penalties and amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and investigation arising out of actual or pertaining to acts or omissions, or alleged eventsacts or omissions, actions or omissions with respect to matters occurring or alleged to have occurred at or prior to through the Effective Time, by them in each case their capacities as such, whether commenced, asserted or claimed before or after the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (an "Action"), (i) Parent shall cause the Surviving Corporation to pay, as incurred, the reasonable fees and expenses of counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to the Surviving Corporation, in advance of the final disposition of any such Action to the fullest extent permitted by applicable Lawlaw, upon receipt of any undertaking required by applicable law, and (ii) Parent shall cause the Surviving Corporation to cooperate in the defense of any such matter; provided, however, the Surviving Corporation shall not be liable for any settlement effected without its written consent, and provided further that the Surviving Corporation shall not be obligated pursuant to this Section 7.7 to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action, unless, in the opinion of counsel for any of the Indemnified Parties, there is a conflict of interests between two or more of such Indemnified Parties.
(cb) Each of Parent, CPT and Inuvo agrees, The parties agree that all the rights to indemnification, exculpation and advancement including provisions relating to advances of expenses now existing incurred in favor defense of any Indemnified Directors action or suit, in the certificate of incorporation and Officers or any current or former employee bylaws of CPTthe Company with respect to matters occurring through the Effective Time, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers Merger and shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification in accordance with their terms. respect of any Action pending or asserted within such period shall continue until the disposition of such Action.
(c) For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation cause to be maintained officers' and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with directors' liability insurance covering the Indemnified Parties who are currently covered, in their capacities as officers and directors, by Parent's existing officers' and directors' liability insurance policies on terms substantially no less advantageous to the Indemnified Parties than such existing insurance, with respect to matters occurring through the Effective Time; provided that Parent shall not be required to amendpay annual premiums in excess of the last annual premium paid by Parent prior to the date hereof, repeal or otherwise modify but in such provisions in any manner that would adversely affect the rights thereunder of case shall purchase as much coverage as reasonably practicable for such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofamount.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, to any other rights such Indemnified Party may have under the CPT Certificate certificate of Incorporationincorporation or bylaws of the Company, under the CPT BylawsDGCL, under indemnity agreements with the Inuvo Articles of Incorporation, Company existing on the Inuvo Bylaws, and any of CPT’s date hereof or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Lawotherwise. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries provisions of this Section 6.11). This Section 6.11 7.7 shall survive the consummation of the Mergers Merger and is expressly are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties referred to hereinParties.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(bA) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relatesTime, Parent HNC shall indemnify, defend indemnify and hold harmless the each present and former officers director, officer, employee and agent of WFB or a Subsidiary of WFB, as applicable, determined as of the Effective Time, other than former directors under criminal indictment or current criminal proceedings as of CPTthe date of this Agreement, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersParties”) against all losses, claims, damages, any costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bfees), Liabilities or amounts that are paid in settlement ofas provided below, judgments, fines, losses, claims, damages or otherwise, liabilities incurred in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPTinvestigative, Inuvo or any of their respective Subsidiaries, and arising out of actual matters existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parentwhether asserted or claimed prior to, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers at or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent arising in whole or in part out of or pertaining to the fact that he or she is or was a director, officer or employee of WFB or, while a director, officer or employee of WFB, is or was serving at the request of WFB as a director, officer, employee or agent of another corporation, association, partnership, joint venture, trust or other enterprise to the fullest extent which such Indemnified Parties would be entitled under the BCL and HNC’s articles of incorporation and bylaws (which right to indemnification shall maintain in effect include the indemnification, exculpation and advancement of reasonable attorneys’ fees and expenses provisions in advance of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect final disposition of any claim, action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofupon receipt from an Indemnified Party of any required undertaking).
(dB) Prior to the Effective TimeDate, Parent, CPT and/or Inuvo HNC shall obtain “tail” insurance policies with a claims period of six use its reasonable best efforts (6) years from and WFB shall cooperate and assist prior to the Effective Time with respect Date in these efforts), at no expense to the beneficiaries, to:
(1) maintain directors’ and officers’ liability insurance in an amount and scope reasonably acceptable (“D&O Insurance”) for the Indemnified Parties with respect to CPT and Inuvo for claims arising from facts or events that occurred on matters occurring at or prior to the Effective Time at Time, issued by a cost that is reasonable and customary carrier assigned a claims-paying ability rating by A.M. Best & Co. of “A (Excellent)” or higher; or
(2) obtain coverage for tail insurance policies with Prior Acts for the Indemnified Parties under a directors’ and officers’ tail liability insurance policy; effective at the Effective Time, in either case, providing at least the same coverage as the D&O Insurance currently maintained by WFB and containing terms and conditions which are no less favorable to the beneficiaries, for a six-year period after the Effective Date; provided, that HNC shall not be obligated to make annual premium payments for such six-year period in respect of the D&O Insurance which exceed, for the portion related to WFB’s directors and officers, 200% of the annual premium payment, as of December 31, 2007, under WFB’s current policy insurer reasonably acceptable to CPT and Inuvo in effect on the date of this Agreement (the “D&O InsuranceMaximum Amount”). Parent shall use commercially reasonable efforts If the amount of the premiums necessary to obtain competitive quotes (from insurance providers with comparable ratings) for maintain or procure such insurance coverage in an effort exceeds the Maximum Amount, HNC shall use its reasonable best efforts to reduce maintain the cost thereofmost advantageous policies of directors’ and officers’ liability insurance obtainable for a premium equal to the Maximum Amount.
(eC) The rights of each Any Indemnified Party hereunder wishing to claim indemnification under Section 5.08(c)(v)(C), upon learning of any such claim, action, suit, proceeding or investigation, shall be in addition topromptly notify HNC. In the event of any such claim, and not in limitation ofaction, any other rights such Indemnified Party may have under suit, proceeding or investigation, whether arising before or after the CPT Certificate of IncorporationEffective Time, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person HNC shall have the right to assume the defense thereof and shall not be liable to such Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Party in connection with the continuing defense thereof, except that if HNC elects not to assume such defense or surviving corporation or entity counsel for the Indemnified Party and advises the Indemnified Party that there are issues that raise conflicts of interest between HNC and the Indemnified Party, the Indemnified Party may retain counsel which is reasonably satisfactory to HNC, and HNC shall pay, promptly as statements therefore are received, the reasonable fees and expenses of such consolidation or merger or counsel for the Indemnified Party, which may not exceed one firm in any jurisdiction, (ii) transfers the Indemnified Party will cooperate in the defense of any such matter, (iii) HNC shall not be liable for any settlement effected without its prior written consent which shall not be unreasonably withheld and (iv) HNC shall have no obligation hereunder in the event that a federal or conveys all state banking agency or substantially all a court of its properties competent jurisdiction shall determine that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by applicable laws and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11regulations.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Willow Financial Bancorp, Inc.)
Indemnification; Insurance. (a) From and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or employee of the Company or any of its subsidiaries (collectively, the "Indemnified Parties" and individually, an "Indemnified Party") against all losses, liabilities, expenses (including attorneys' fees), claims or damages in connection with any claim, suit, action, proceeding or investigation based in whole or in part upon the fact that such Indemnified Party is or was a director, officer or employee of the Company or any of its subsidiaries and arising out of acts or omissions occurring prior to and including the Effective Time (including but not limited to the transactions contemplated by this Agreement) to the fullest extent permitted by Nevada law, for a period of not less than six years following the Effective Time; provided, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims.
(b) The provisions of the Surviving Corporation Articles of Incorporation and the Surviving Corporation Bylaws with respect to indemnification, advancement of expenses indemnification and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons individuals who at any time prior to the Effective Time are or were entitled to indemnification, advancement current or former directors or officers of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) Company in respect of actions or omissions occurring at or prior to the Effective Time (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by law.
(c) For six years after the Effective Time, unless otherwise the Surviving Corporation shall cause to be maintained the current policies of directors' and officers' liability insurance maintained by the Company covering the current and former directors and officers of the Company with respect to matters occurring prior to the Effective Time (provided, that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous to the current and former directors and officers of the Company than the policy in effect on the date hereof with respect to acts or failures to act prior to the Effective Time (including dollar amount and scope of coverage), to the extent such policies are available; provided, that in no event shall the Surviving Corporation be required to expend, in order to maintain or procure insurance coverage pursuant to this Section 4.6(c), any amount per annum greater than 150% of the current annual premiums paid by applicable Law the Company for such insurance (which the Company represents and provided warrants to be not more than $225,000). If for any reason during such period the Surviving Corporation is unable to obtain such insurance for an annual premium of not more than $337,500, it shall notify ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, who will act as authorized representative of all such directors and officers (the "Representative"). The Representative may require either that all rights of indemnificationthe Surviving Corporation shall (i) pay $337,500 in annual premiums for such insurance, advancement of with the insured directors and officers paying any excess, or (ii) deposit $337,500 per annum in an escrow account with an independent escrow agent as a fund to cover counsel fees and other litigation expenses of, or judgments or settlements paid by, such directors and exculpation in respect of any claim asserted or officers for claims made within against them during such six-year period shall continue until by reason of their having been directors and officers of the final disposition of Company or its subsidiaries prior to the Effective Time, which expenses are not paid by the Surviving Corporation pursuant to its indemnification obligations to such claim)directors and officers.
(bd) From and after the Effective Time and until Time, no Indemnified Party shall be liable to Gaming, RAS or the expiration Surviving Corporation (or anyone claiming rights through any of them, including ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇) for breach of any applicable statutes of limitation of the underlying claim representations, warranties, covenants or agreements contained in this Agreement. It is the express understanding of the parties that the sole remedy of Gaming and RAS under this Agreement (or anyone claiming rights under this Agreement through Gaming or RAS) in the event of a breach or alleged breach by the Company of its representations, warranties, covenants or agreements, shall be to which refuse to consummate the indemnification relatesRiviera Merger, Parent shall indemnifysubject, defend however, to Gaming s rights under Article VI hereof.
(e) This Section 4.6 is intended to benefit the Indemnified Parties and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit ofpersonal representatives, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that binding on the successors and assigns of the Parent shall assume Company and the obligations set forth in this Section 6.11Surviving Corporation.
Appears in 1 contract
Sources: Merger Agreement (Paulson Allen E)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior 10.1 Subject to the Effective Time were entitled provisions of this Article 10, Elite agrees to indemnificationdefend, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend indemnify and hold harmless the present Dexcel, its Affiliates and former officers directors of CPT, Inuvo its and their respective Subsidiaries officers, directors, shareholders, employees, agents, and other representatives (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersDexcel Indemnitees”) harmless from and against any and all claims, actions, causes of action, assessments, losses, claims, damages, injuries, liabilities, costs and expenses (including including, without limitation, reasonable attorneys’ fees and expenses) of the Dexcel Indemnitees, filed, raised, initiated or made by any government authority and/or third party (collectively, “Claims”) arising from (i) any material breach by Elite of its representations, warranties, covenants, agreements or obligations under this Agreement, the Quality Agreement or the SDEA; (ii) negligence or willful misconduct on the part of Elite, its Affiliates or any of their agents, employees, distributors or subcontractors; (iii) any product liability claims, whether arising out of warranty, negligence, strict liability (including manufacturing, storage in Elite’s warehouse or that of any attorneys’ fees Affiliate or Manufacturer, or any other fees incurred product or quality based claims in relation to enforce the Product), and (iv) any claim for infringement of any Third Party Intellectual Property Rights in the country where the Product is manufactured, in each case except to the extent that any such damages give rise to an indemnification claim by Elite under Section 10.2 hereinafter.
10.2 Subject to the provisions of this Section 6.11(bArticle 10, Dexcel agrees to defend, indemnify and hold harmless Elite and its Affiliates, and their respective shareholders, officers, directors, employees and agents (“Elite Indemnitees”), Liabilities from and against any Claims by Third Parties and/or government organizations arising from: (i) the handling, possession, storing, labeling, use, marketing, distribution, promotion or amounts that are paid in settlement ofsale of any Product by Dexcel, or otherwiseits Affiliates, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiariesdistributors, employees, or sub-distributors following Delivery of the Product to Dexcel; (ii) any material breach by Dexcel of its representations, warranties, covenants, agreements or obligations under this Agreement, the Quality Agreement or the SDEA; and arising out (iii) negligence or willful misconduct on the part of actual or alleged eventsDexcel, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo its Affiliates or any of their respective Subsidiaries agents, employees, distributors or subcontractors; or (together iv) any claim for infringement of any third party intellectual property in the Territory (provided that the information concerning the Product that was provided by Elite is in full and accurate and subject to Elite’s compliance with their heirsthe terms of Section 9.1.2 hereinabove), executors except to the extent that any such damages give rise to an indemnification claim by Dexcel under Section 10.1 hereinabove.
10.3 Unless and administratorsto the extent otherwise specifically provided herein, and in the event that the Dexcel Indemnitees or the Elite Indemnitees intend to claim indemnification under this Article 10 with respect to any Indemnified Directors and Officers, Claim (such one of the Dexcel Indemnitees or the Elite Indemnitees being herein referred to as the “Indemnified PartiesIndemnitee”) as provided in CPT Certificate shall promptly notify the other Party (“Indemnitor”) of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights Claim in respect of any actionwhich the Indemnitee intends to claim such indemnification, suitand the Indemnitor shall assume the defense thereof with counsel of its own choosing; additionally, proceeding or investigation pending or asserted or claim made or threatened within such period an Indemnitee shall continue until have the final disposition or resolution thereofright to retain its own counsel with reasonable and documented fees and expenses to be paid by the Indemnitor.
(d) Prior a. An Indemnitee shall not be entitled to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated 10.3 if any settlement or modified in compromise of such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies Claim is concluded by the Indemnitee without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirsIndemnitor, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and which consent shall not be unreasonably withheld or delayed.
b. An Indemnitor shall not enter into any settlement or compromise of any Claim or consent to the continuing entry of any judgment or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets other order with respect to any PersonClaim which does not contain, thenas a part thereof, an unconditional release of the Indemnitee for liability for all loss, cost or damage that may arise from such Claim or which contains any injunctive or other non-monetary relief that might in any way interfere with the future conduct of business by the Indemnitee.
c. Any Indemnitee, and its employees, agents and representatives, shall cooperate fully with the Indemnitor and its legal representatives, at the Indemnitor’s expense for out-of-pocket costs, in each casethe investigation of any Claim covered by these indemnification provisions
10.4 Any breach of warranty, to representation or covenant by a Party shall constitute a breach of contract.
10.5 Each Party shall, during the extent necessaryTerm and for three (3) years after termination or expiration of this Agreement, proper provision shall be made so that obtain and maintain, at its own cost and expense from a qualified insurance company, product liability insurance in accordance with the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.following provisions:
Appears in 1 contract
Sources: Supply & Distribution Agreement (Elite Pharmaceuticals Inc /Nv/)
Indemnification; Insurance. (a) The provisions with respect Following the Effective Time, the Continuing Corporation and its Subsidiaries, as the case may be, shall jointly and severally indemnify, defend and hold harmless, and advance expenses to indemnification, any person who has rights to indemnification or advancement of expenses and exculpation contained in the Parent Certificate from BAYK or any of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six its Subsidiaries (6an “Indemnified Party”) years after the Effective Time (in any manner that would adversely affect the rights thereunder of the persons who at any time prior capacity), to the Effective Time were same extent and on the same conditions as such person was entitled to indemnification, indemnification or advancement of expenses pursuant to applicable law and BAYK’s Organizational Documents or exculpation under any BAYK Subsidiary’s Organizational Documents, as the CPT Certificate case may be, or any indemnification agreements to which an Indemnified Party is a party as in effect on the date of Incorporationthis Agreement, subject, in the case of advancement of expenses, to the Indemnified Party providing a written undertaking to repay such advancements as contemplated by Section 13.1-699A of the VSCA. Without limiting the foregoing, in any case or proceeding in which corporate approval may be required to effectuate any indemnification, the CPT BylawsContinuing Corporation or its applicable Subsidiary shall direct, if any Indemnified Party elects, that the Inuvo Articles determination of Incorporationpermissibility of indemnification shall be made by independent counsel mutually agreed upon between the Continuing Corporation or such Subsidiary and such Indemnified Party.
(b) The Continuing Corporation shall, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required purchase a six (6) year “tail” prepaid policy on terms and conditions no less favorable than those of the existing directors’ and officers’ liability (including fiduciary and cyber coverage) insurance maintained by applicable Law BAYK from insurance carriers with comparable credit ratings, covering, without limitation, the Merger; provided, however, that the cost of such “tail” policy shall in no event exceed three hundred percent (300%) of the amount of the last annual premium paid by BAYK for such existing directors’ and officers’ liability (and provided that all rights of indemnificationfiduciary) insurance. If, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until but for the final disposition of such claim).
(b) From and after proviso to the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administratorsimmediately preceding sentence, the “Indemnified Directors and Officers”Continuing Corporation would be required to expend more than three hundred percent (300%) against all lossesof current annual premiums, claims, damages, expenses the Continuing Corporation will obtain the maximum amount of that insurance obtainable by payment of annual premiums equal to three hundred percent (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions 300%) of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Lawcurrent annual premiums.
(c) Each of ParentNothing in this Agreement is intended to, CPT and Inuvo agreesshall be construed to or shall release, that all waive or impair any rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance claims under any policy that is or has been in an amount existence with respect to BAYK or any of its Subsidiaries for any of their respective directors, officers or other employees, it being understood and scope reasonably acceptable to CPT and Inuvo agreed that the indemnification provided for claims arising from facts or events that occurred on or in this Section 5.12 is not prior to the Effective Time at a cost that is reasonable and customary or in substitution for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for any such insurance coverage in an effort to reduce the cost thereofclaims under such policies.
(ed) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and covenant is intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her respective heirs and legal representatives. The rights to indemnification and advancement of expenses and the other rights provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Parties referred Party is entitled, whether pursuant to hereinlaw, contract or otherwise.
(fe) If the Parent Continuing Corporation or any of its respective successors or assigns (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 or (ii) merger, transfers or conveys all or substantially all of its properties and assets or deposits to any Personother entity or engages in any similar transaction, then, and then in each case, to the extent necessary, Continuing Corporation will cause proper provision shall to be made so that the successors and assigns of the Parent shall Continuing Corporation will expressly assume the obligations set forth in this Section 6.115.12. For the avoidance of doubt, to the extent required by any agreement previously entered into by BAYK in connection with a merger, acquisition or other business combination, the provisions of this Section 5.12 shall apply to directors, officers, employees and fiduciaries of predecessor entities previously acquired by BAYK.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Blue Ridge Bankshares, Inc.)
Indemnification; Insurance. (a) The provisions with respect Parent and Sub agree that all rights to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed indemnification for acts or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time omissions occurring prior to the Effective Time were entitled to indemnificationnow existing in favor of the current or former directors, advancement officers, employees, fiduciaries or agents (the "Indemnified Parties") of expenses the Company and its subsidiaries as provided in their respective certificates of incorporation or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws by-laws (or similar organizational documents) or 24
(b) It is understood and agreed that the applicable organizational documents of CPT’s Company shall, and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to from and after the Effective Time, unless otherwise required by applicable Law (the Surviving Corporation and provided that all rights of indemnificationthe Parent shall, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) Parties against all losses, claims, damages, costs, expenses (including reasonable attorneys’ ' fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bexpenses), Liabilities liabilities or judgments, fines or amounts that are paid in settlement of, or otherwise, in connection with any pending, threatened or actual claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative investigation based in whole or investigative and including all appeals thereof to which any Indemnified Directors and Officers in part or arising in whole or part out of the fact that such person is or may become was a party to by virtue director, officer, employee or agent of his or her service as a present or former director or officer of CPT, Inuvo the Company or any of their respective Subsidiariesits subsidiaries or is or was serving at the request of the Company as a director, and arising out officer, employee or agent of actual another corporation, partnership, joint venture, employee benefit plan, trust or alleged events, actions other enterprise or omissions by reason of anything done or not done by such person in any such capacity whether pertaining to any matter existing or occurring or alleged to have occurred at or prior to the Effective TimeTime or any acts or omissions occurring or existing at or prior to the Effective Time and whether asserted or claimed prior to, or at or after, the Effective Time ("Indemnified Liabilities"), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby, in each case to the fullest extent permitted by applicable Law.
law (c) Each of and the Company, the Surviving Corporation, and Parent, CPT as the case may be, shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted by applicable law). In determining whether an Indemnified Party is entitled to indemnification under this Section 7.07(b), if requested by such Indemnified Party such determination shall be made by special, independent counsel selected by the Surviving Corporation and Inuvo agreesthe Parent and reasonably approved by the Indemnified Party, and who has not otherwise performed services for the Surviving Corporation, Parent or their respective affiliates within the last three years. Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Parties (whether arising before or after the Effective Time), (i) the Indemnified Parties may retain Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP or other counsel reasonably satisfactory to the Company (or the Surviving Corporation after the Effective time), and the Company (or, after the Effective Time, the Surviving Corporation and Parent) shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties as promptly as statements therefor are received; and (ii) the Company (or, after the Effective Time, the Surviving Corporation and the Parent) will use all reasonable best efforts to assist in the vigorous defense of any such matter; provided, that none of the Company, the Surviving Corporation or Parent shall be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 7.07(b), upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company (or, after the Effective Time, the Surviving Corporation and Parent) (but the failure so to notify shall not relieve a party from any liability which it may have under this Section 7.07(b) except to the extent such failure prejudices such party's position with respect to such claims) and shall deliver to the Company (or, after the Effective Time, the Surviving Corporation and the Parent) the undertaking contemplated by Section 145(e) of the DGCL, but without any requirement for the posting of the bond. The Indemnified Parties as a group may retain one law firm (plus local counsel, if necessary) to represent them with respect to each such matter unless the use of the counsel chosen to represent the Indemnified Parties would present such counsel with a conflict of interest, or the representation of all of the Indemnified Parties by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case such additional counsel as may be required (as shall be reasonably determined by the Indemnified Parties and the Company, the Surviving Corporation or Parent, as the case may be) and satisfactory to the Company, the Surviving Corporation or Parent, as the case may be, may be retained by the Indemnified Parties at the cost and expense of the Company, the Surviving Corporation or Parent, as the case may be. The Company and Sub agree that the foregoing rights to indemnification, exculpation and advancement including provisions relating to advances of expenses now incurred in defense of any action or suit, existing in favor of any the Indemnified Directors and Officers or any current or former employee of CPTParties with respect to matters occurring through the Effective Time, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms. For for a period of not less than six (6) years after the Effective Time; provided, Parent shall maintain in effect the indemnification, exculpation and advancement however that all rights to indemnification (including rights relating to advances of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiariesexpenses) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or Indemnified Liabilities asserted or claim made or threatened within such period shall continue until the final disposition of such Indemnified Liabilities. Furthermore, the provisions with respect to indemnification set forth in the Certificate of Incorporation or resolution thereofBylaws 25
(c) The Company (or, after the Effective Time, the Surviving Corporation and Parent) shall indemnify any Indemnified Party against all reasonable costs and expenses (including attorneys' fees and expenses), such amounts to be payable in advance upon request as provided in Section 7.07(b), relating to the enforcement of such Indemnified Party's rights under this Section 7.07 or under the documents referred to in this Section 7.07, but only to the extent that such Indemnified Party is ultimately determined to be entitled to indemnification hereunder or thereunder. Any amounts due pursuant to the preceding sentence shall be payable upon request by the Indemnified Party.
(d) Prior to For six years from the Effective Time, ParentParent shall, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from unless Parent agrees in writing to guarantee the Effective Time with respect to indemnification obligations set forth in Section 7.07(a), maintain in effect the Company's current directors’ ' and officers’ ' liability insurance covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to Parent); provided, however, that in no event shall Parent be required to expend in any one year an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to in excess of 225% of the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (annual premiums currently paid by the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) Company for such insurance (which the Company represents is currently not more than $98,250); and, provided, further, that if the annual premiums of such insurance coverage in an effort exceed such amount, Parent shall be obligated only to reduce obtain a policy with the greatest coverage available for a cost thereofnot exceeding such amount.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 7.07 shall survive the consummation of the Mergers and Merger at the Effective Time, is intended to be for benefit the benefit ofCompany, Parent, the Surviving Corporation and the Indemnified Parties, and shall be enforceable by, binding on all successors and assigns of Parent and the Indemnified Parties referred to hereinSurviving Corporation.
(f) If In the Parent event the Company or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent Company and the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.117.07.
Appears in 1 contract
Sources: Merger Agreement (WPG Corporate Development Associates v Lp)
Indemnification; Insurance. (a) The provisions To the fullest extent permitted by law, neither the Manager, any Affiliate of the Manager nor any employee of the Manager shall be personally liable, responsible or accountable in damages or otherwise to the Company or any of its Members for or with respect to indemnificationany action taken or failure to act on behalf of the Company within the scope of the authority conferred on the Manager by this Agreement or by law. In addition to, advancement and not by way of expenses and exculpation contained in limitation of, the Parent Certificate of Incorporation and Parent Bylaws preceding sentence, the Manager shall not be amendedliable to the Company or its Members for monetary damages for any breach of any fiduciary duty as a Manager, repealed except for liability for acts or otherwise modified for omissions not in good faith or which involve gross negligence, intentional misconduct or a period knowing violation of six (6) years after the Effective Time in any manner that would law. Any repeal or modification of this Section shall not adversely affect the rights thereunder any right or protection of the persons who at any time a Manager existing prior to the Effective Time were entitled to indemnification, advancement of expenses such repeal or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)modification.
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent The Company shall indemnify, defend indemnify and hold harmless the present Manager, each of their Affiliates and former officers directors Designated Employees (the "Indemnified Parties", and each ------------------- an "Indemnified Party") from and against any loss, expense, damage or injury ----------------- suffered or sustained by the Indemnified Parties (or any of CPTthem) by reason of any acts, Inuvo omissions or alleged acts or omissions arising out of its or their activities on behalf of the Company or in furtherance of the interests of the Company, including, but not limited to, any judgment, award, settlement, reasonable attorney's fees and their respective Subsidiaries other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim (collectively, together with their respective heirs"Losses"); provided that the acts, executors omissions or alleged acts or -------- omissions upon which such actual or threatened action, proceeding or claim is based were not performed or omitted fraudulently or in bad faith or as a result of gross negligence or willful misconduct by any such Indemnified Party; and administratorsprovided further that such Indemnified Party reasonably believed that the acts, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of-------- ------- omissions, or otherwise, in connection with any claim, alleged acts or omissions upon which such actual or threatened action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers claim is or may become a party to by virtue based were in the best interests of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior the Company. Such indemnification shall be made only to the Effective Time, in each case to extent of the fullest extent permitted by applicable Lawassets of the Company.
(c) Each of ParentThe Manager shall reimburse, CPT indemnify and Inuvo agreeshold harmless the Company, that all rights to indemnificationits officers, exculpation directors, members and advancement of expenses now existing in favor of employees for and from any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights Losses in respect of or arising from any actionthe acts, suitomissions, proceeding or investigation pending alleged acts or asserted omissions of the Manager, its officers, directors and employees which are deemed to constitute fraud, bad faith, gross negligence or claim made or threatened within such period shall continue until willful misconduct by the final disposition or resolution thereofManager.
(d) Prior The Company agrees to provide for the Effective TimeManager and all officers, Parentdirectors or employees of the Manager serving as officers or directors of the Company, CPT and/or Inuvo shall obtain “tail” directors and officers liability insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance their activities in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to connection with the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition toCompany, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such amounts as are agreed by the Manager and the Company, or should the parties be unable to agree, in the amount of one million dollars ($1,000,000) on a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to hereinper occurrence basis.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect HEMA agrees to indemnificationindemnify and hold harmless ARCBS and its directors, advancement of expenses governors, officers, employees and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amendedagents against any liability, repealed claim, cost or otherwise modified for a period of six expense (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiariesincluding reasonable attorneys' fees) in respect to bodily injury, death, and property damage arising from the willful misconduct or negligent activity of actions HEMA, its directors, officers, employees or omissions occurring at agents during its performance of its responsibilities under this Agreement and/or the manufacture or prior sale of any product developed pursuant to this Agreement or any Development Agreement, including but not limited to any claim against ARCBS for infringement of patent rights owned or held by Pall Corporation. HEMA further agrees to indemnify ARCBS, its directors, officers, employees and agents from and against any loss, damages, costs, or expenses ("liability") in connection with any claim arising from any defect in the merchandise, goods or products provided or in the provision of any services pursuant to this Agreement or any Development Agreement, or by reason of the nature of the materials contained in said merchandise, goods or products or provision of service, except to the Effective Time, unless otherwise required by applicable Law (and provided extent that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition order of a court of competent jurisdiction has determined that a proportion of such claim)liability thereof was caused by the willful misconduct or negligent activity of ARCBS, its directors, officers or employees, in which case, ARC shall be responsible solely for its proportionate share of the liability.
(b) From ARCBS agrees to defend, hold harmless, and after the Effective Time indemnify HEMA, its directors, officers, employees and until the expiration of agents against any applicable statutes of limitation of the underlying claim to which the indemnification relatesliability, Parent shall indemnifyclaim, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses cost or expense (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred ' fees) in respect to enforce the provisions of this Section 6.11(b)bodily injury, Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiariesdeath, and property damage arising out from the sole negligence of actual ARCBS, its directors, officers or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.employees during its performance of its responsibilities under this Agreement
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, Party shall maintain the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue following insurance coverages in full force and effect in accordance for the term of this Agreement. Each Party further agrees to maintain insurance with their terms. For a period , conditions and amounts not less than that set forth herein for the term of six (6) years after the Effective Timeany Development Agreement, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and unless any such indemnification agreements of CPTDevelopment Agreement shall specify coverage terms, Inuvo conditions or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal amounts for either or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation both of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so which exceed that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11Agreement:
(i) Commercial General Liability Insurance in an amount of at least $4,000,000 (Four Million Dollars) 2) an auto liability policy with at least $1,000,000 (One Million Dollars) in coverage and; 3) Workers' Compensation coverage covering each Party's own employees with statutory limits for each jurisdiction where the work required under this Agreement or any Development Agreement is performed (including monopolistic states if any work is to be performed in one or more of them) and an employers' liability policy with at least the following limits, $250,000 per accident, $500,000 per disease, and $250,000 disease (each employee).
(ii) HEMA further agrees to maintain not less than $4,000,000 (Four Million Dollars) of products liability coverage naming ARCBS an additional insured party with respect to any product developed, created, manufactured, distributed or sold as a result of this Agreement or any Development Agreement. Said products liability coverage shall include coverage for claims made against the policy for injury occurring as a result of a flaw problem with the design or manufacture of HEMA's products. HEMA agrees to maintain full replacement value "All Risk" property insurance on all property and equipment of HEMA used under this Agreement or any Development Agreement, and said property insurance shall insure at all times all HEMA products being manufactured and HEMA agrees to waive any right of subrogation for loss or damage to any HEMA property at, on, or in ARCBS' or HEMA's facilities. HEMA agrees to obtain, if required in such property insurance, a waiver of subrogation in favor of ARCBS. Said property insurance shall include Business Interruption and Extra Expense coverage for such losses arising from loss or damage to aforementioned HEMA property without expectation of contribution from any such insurance ARCBS may maintain.
(iii) Each Party shall, at its sole expense, keep in force policies of insurance in the amounts as specified, and as required by statute, with carriers reasonably satisfactory to the other; and said insurance will be written as primary policy coverage and not contributing with, or in excess of any insurance which the other Party shall carry with respect to the work of each Party under this Agreement. Certificates of insurance evidencing all of the above coverages and conditions (types and amounts) shall be produced upon written request and remain in full force and effect during the term of this Agreement. HEMA shall supply evidence of its property insurance on an ▇▇▇▇▇ "Evidence of Property Insurance" form 27. Each Party's certificate(s) of insurance shall provide for not less than thirty (30) days written notice of cancellation, non-renewal or reduction in terms and conditions below that required herein to the other Party.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for For a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of IncorporationTime, the CPT BylawsParent shall, and shall cause the Inuvo Articles of IncorporationSurviving Corporation to, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors officers, directors, employees and agents of CPT, Inuvo the Company and their respective Subsidiaries its subsidiaries (collectively, together with their respective heirsthe "Indemnified Parties") from and against, executors and administratorspay or reimburse the Indemnified Parties for, the “Indemnified Directors and Officers”) against all losses, obligations, expenses, claims, damages, expenses damages or liabilities (including reasonable attorneys’ fees whether or not resulting from third-party claims and including any interest, penalties, out-of-pocket expenses and attorneys’ fees or other ' fees incurred in the investigation or defense of any of the same or in asserting any of their rights hereunder) with respect to enforce actions or omissions arising out of such individuals' services as officers, directors, employees or agents of the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo Company or any of their respective Subsidiaries, and arising out its subsidiaries or as trustees or fiduciaries of actual any plan for the benefit of employees of the Company or alleged events, actions or omissions any of its subsidiaries occurring or alleged to have occurred at on or prior to the Effective TimeTime (including, without limitation, the transactions contemplated by this Agreement) to the full extent permitted or required under applicable law and, in each the case of indemnification by the Surviving Corporation, to the fullest extent permitted under the provisions of the Company Certificate of Incorporation and the Company By-Laws, each as in effect at the date hereof (which provisions shall not be amended in any manner which adversely affects any Indemnified Party, for a period of six years), including provisions relating to advances of expenses incurred in the defense of any action or suit; PROVIDED that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of each such claim shall continue until final disposition of such claim. Without limiting the foregoing, in any case in which approval by applicable Lawthe Surviving Corporation is required to effectuate any indemnification, the Parent shall cause the Surviving Corporation to direct, at the election of the Indemnified Party, that the determination of any such approval shall be made by independent counsel selected by the Indemnified Party.
(b) Any Indemnified Party wishing to claim indemnification under Section 6.9(a) shall provide notice to the Parent promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and the Indemnified Party shall permit the Parent (at the Parent's expense) to assume the defense of any claim or any litigation resulting therefrom; PROVIDED that (i) counsel for the Parent who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party, and the Indemnified Party may participate in such defense at such Indemnified Party's expense, and (ii) the omission by any Indemnified Party to give notice as provided herein shall not relieve the Parent of its indemnification obligation under this Agreement except to the extent that such omission results in a failure of actual notice to the Parent and the Parent is materially damaged as a result of such failure to give notice. The Parent shall not, in the defense of any such claim or litigation, except with the consent of the Indemnified Party, consent to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. In the event that the Parent does not accept the defense of any matter as above provided, or counsel for the Parent advises that there are issues which raise conflicts of interest between the Parent or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Parent or the Surviving Corpora tion shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; PROVIDED that the Parent shall not be liable for any settlement effected without its prior written consent. In any event, the Parent and the Indemnified Parties shall cooperate in the defense of any action or claim subject to this Section 6.9 and, subject to the Confidentiality Agreement, the records of each shall be available to the other with respect to such defense.
(c) Each of Parent, CPT and Inuvo agrees, that all rights The Parent will cause to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For be maintained for a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of less than six (6) years from the Effective Time with respect to the Company's current directors’ ' and officers’ liability ' insurance in an amount and scope reasonably acceptable indemnification policy to CPT and Inuvo the extent that it provides coverage for claims arising from facts or events that occurred on or occurring prior to the Effective Time at a cost that is reasonable ("D&O Insurance") for all persons who are directors and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable officers of the Company on the date of this Agreement, so long as the annual premium therefor would not be in excess of 150% of the last annual premium paid prior to CPT and Inuvo the date of this Agreement (the “D&O Insurance”"Maximum Premium"). ; PROVIDED, HOWEVER, that if the annual premium therefor would exceed the Maximum Premium, the Parent shall use commercially reasonable efforts purchase as much coverage as is available for the Maximum Premium; PROVIDED, FURTHER, that the Parent may, in lieu of maintaining such existing D&O Insurance as provided above, cause coverage to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or provided under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be policy maintained for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If of the Parent or any of its respective successors subsidiaries or assigns any policy specifically obtained for this purpose, so long as the terms thereof are no less advantageous to the intended beneficiaries thereof than the existing D&O Insurance for a period of not less than six (i6) consolidates with years from the Effective Time. If the existing D&O Insurance expires, is terminated or merges into any other Person and shall not canceled during such six (6) year period, the Parent will obtain as much D&O Insurance as can be obtained for the continuing or surviving corporation or entity remainder 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 case, period for an annualized premium equal to the extent necessaryMaximum Premium, proper provision shall be made so that on terms and conditions no less advantageous to the successors and assigns of covered persons than the Parent shall assume the obligations set forth in this Section 6.11existing D&O Insurance.
Appears in 1 contract
Sources: Merger Agreement (WMF Group LTD)
Indemnification; Insurance. (a) The provisions BAYOU ROAD shall, and, from and after the Closing Date, Principal Solar and BAYOU ROAD shall, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Closing Date, an officer or director of BAYOU ROAD or any of its Subsidiaries (the "Indemnified Parties") against (i) all losses, claims, damages, costs, expenses, liabilities or judgments, or amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of, or in connection with, any claim, action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of BAYOU ROAD or any of its Subsidiaries, whether pertaining to any matter existing or occurring at or prior to the Closing Date and whether asserted or claimed prior to, or at or after, the Closing Date ("Indemnified Liabilities") and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby or thereby, in each case to the full extent a corporation is permitted under Delaware or Ohio law (notwithstanding the By-laws of BAYOU ROAD or Bayou Road) to indemnify its own directors, officers and employees, as the case may be (and BAYOU ROAD or Principal Solar, as the case may be, shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by law). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising before or after the Closing Date), (i) the Indemnified Parties may retain counsel satisfactory to them with the consent of BAYOU ROAD (or the consent of Principal Solar and BAYOU ROAD after the Closing Date) which consent of BAYOU ROAD (or, after the Closing Date, Principal Solar and BAYOU ROAD ) with respect to indemnificationsuch counsel retained by the Indemnified Parties may not be unreasonably withheld, advancement (ii) BAYOU ROAD (or, after the Closing Date, Principal Solar and BAYOU ROAD ) shall pay all reasonable fees and expenses of expenses such counsel for the Indemnified Parties promptly as statements therefor are received, and exculpation contained (iii) BAYOU ROAD (or, after the Closing Date, Principal Solar and BAYOU ROAD ) shall use all reasonable efforts to assist in the Parent vigorous defense of any such matter; provided, however, that neither BAYOU ROAD nor Principal Solar shall be liable for any settlement of any claim effected without its written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.15, upon learning of any such claim, action, suit, proceeding or investigation, shall notify BAYOU ROAD and Principal Solar (but the failure so to notify shall not relieve BAYOU ROAD or Principal Solar from any liability which it may have under this Section 6.15, except to the extent such failure materially prejudices such party). The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter, unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. The provisions of the Certificate of Incorporation and Parent Bylaws the By-laws of BAYOU ROAD with respect to indemnification and exculpation from liability shall not be amended, repealed or otherwise modified for a period of six (6) years after from the Effective Time Closing Date in any manner that would adversely affect the rights thereunder of the persons individuals who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that Closing Date were directors or officers of BAYOU ROAD, unless such modification is reasonable required by law. Principal Solar shall cause BAYOU ROAD to keep and customary for tail insurance policies maintain in effect after the Closing Date the indemnification agreements with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage individuals listed in an effort to reduce the cost thereof.Schedule I.
(eb) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries provisions of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is 6.15 are intended to be for the benefit of, and shall be enforceable by, the each Indemnified Parties referred to hereinParty and his or her heirs and representatives.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect through the rights thereunder sixth anniversary of the persons who at any time prior to Effective Time, the Acquiror (the "In- demnifying Party") shall indemnify and hold harmless each present and former director, officer and employee of the Com- pany or the Bank determined as of the Effective Time were entitled to indemnification(the "In- demnified Parties") against any costs or expenses (including reasonable attorneys' fees), advancement judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in con- nection with any claim, action, suit, proceeding or investiga- tion, whether civil, criminal, administrative or investigative, arising out of expenses matters existing or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim whether asserted or made within claimed prior to, at or after the Effective Time, to the fullest extent to which such six-year period shall continue until Indemnified Parties were entitled under (i) the final disposition Articles of such claim)Agreement, Certificate of Incorporation and Bylaws of the Com- pany and the Bank and (ii) each Director Indemnity Agreement which has been Previously Disclosed pursuant to Section 3.15 hereof, in each case as in effect on the date hereof.
(b) From and after the Effective Time and until the expiration Any Indemnified Party wishing to claim indemni- fication under Section 5.8(a), upon learning of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any such claim, action, suit, Proceeding proceeding or investigation, whether civilshall promptly no- tify the Indemnifying Party, criminal, administrative or investigative and including all appeals thereof but the failure to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to so notify shall not relieve the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor Indemnifying Party of any liability it may have to such Indemnified Directors and Officers or any current or former employee Party if such failure does not materially prejudice the Indemnifying Party. In the event of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPTclaim, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending (whether aris- ing before or asserted after the Effective Time), (i) the Indemnifying Party shall have the right to assume the defense thereof and the Indemnifying Party shall not be liable to such Indemnified Parties for any legal expenses of other counsel or claim made any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Indem- nifying Party elects not to assume such defense or threatened within counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Indemnifying Party and the Indemnified Parties, the Indemnified Parties may retain counsel which is reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay, promptly as state- ments therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Parties (which may not ex- ceed one firm in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest), (ii) the Indemnified Parties will coop- erate in the defense of any such matter and (iii) the Indemni- fying Party shall not be liable for any settlement effected without its prior written consent. In the event of any con- flict between this Section 5.8(b) and any of the above- mentioned Director Indemnity Agreements, the terms of the ▇▇- ▇▇▇▇▇▇ Indemnity Agreement shall control.
(c) The Acquiror shall cause the Company to maintain the Company's existing directors' and officers' liability in- surance policy (or a policy providing coverage on substantially the same terms and conditions) for acts or omissions occurring prior to the Effective Time by persons who are currently cov- ered by such insurance policy maintained by the Company for a period shall continue until of three years following the final disposition or resolution thereofEffective Time.
(d) Prior to In the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed event that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Acquiror or any of its respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each case, to such case the extent necessary, proper provision shall be made so that the successors suc- cessors and assigns of the Parent such entity shall assume the obligations set forth in this Section 6.115.8, which obligations are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each director and officer covered hereby.
Appears in 1 contract
Indemnification; Insurance. a. Licensee shall defend, hold free, safe and harmless and indemnify Licensor, Artist, and their respective affiliates, owners, directors, governors, officers, members, employees and agents (acollectively "Licensor Parties”) The provisions with respect against, any and all claims, demands, disputes, causes of action or damages, including reasonable outside accountants' and attorneys' fees (collectively, "Claims"), arising out of an allegation relating to indemnificationor referring to; (i) any act or omission of Licensee, advancement any third party contributor or any other entity acting on Licensee's behalf (whether or notapproved by Licensor pursuant to this Agreement), (ii) any breach of expenses this Agreement by Licensee, any Third Party Contributor, any conventional retailer, or any other entity acting on Licensee's behalf (whether or not approved by Licensor pursuant to this Agreement). (iii) the manufacture, distribution, advertisement, promotion, sale, possession or use of any Licensed Product (including, but not limited to, claims relating to (iv) any defect (whether obvious or hidden and exculpation contained whether or not present in any sample approved by Licensor) in a Product or in any packaging or other materials (including advertising materials). (x) any alleged injuries to persons or property, (y) any infringement by Licensee of any rights of any other person or entity or (claims that the Parent Certificate of Incorporation and Parent Bylaws Trademark infringes on a trademark or other intellectual property rights shall not be amendedindemnified by Licensee; such infringement claims fall under 15(c)) (z) the failure by Licensee to comply with applicable laws, repealed regulations, standards (including but not limited to those set out in Section 13(b), or otherwise modified (iv) any claim that any Product or element thereof (other than a Trademark that has been approved for use by Licensor) violates or infringes upon the trademark, copyright or other intellectual property rights (including trade dress and rights of publicity and privacy) of a period third party, provided Licensee is given prompt written notice of six (6) years after and shall have the Effective Time in option to undertake and conduct the defense of any manner such Claim, and provided, however, that would adversely affect the rights thereunder failure of the persons who at any time prior Licensee to be notified shall not relieve Licensee of its obligation hereunder to the Effective Time were entitled extent such failure does not result in actual and material prejudice to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of Licensee. In any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim instance to which the indemnification relatesforegoing indemnities pertain, Parent Licensor shall indemnify, defend reasonably cooperate with and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, assist Licensee in connection with any such defense. Licensee shall reimburse Licensor Parties for all reasonable out-of- pocket costs actually incurred by Licensor Parties in connection with such cooperation and assistance. If in good faith reasonable business judgment Licensor deems it advisable to take control of the claim, actionLicensor can at its election take control over representation without waiving any rights to all or part of indemnification rights to payment of reasonable legal fees and costs. For the avoidance of doubt, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative Licensor shall only seek reimbursement of reasonable attorney s fees and including all appeals thereof costs. In any instance to which any Indemnified Directors such indemnities pertain, Licensee shall keep Licensor fully advised of all developments pertaining to such Claim and Officers is shall not enter into a settlement of such Claim or may become admit liability or fault without Licensor's prior written approval, unless such settlement includes an unconditional release of Licensor
b. Licensee shall obtain and maintain on an occurrence basis, throughout the Term and sell off period (if any), at its own expense, standard comprehensive general liability coverage with an aggregate limit of at least $2,000,000 for bodily injury, property damage, personal injury, product liability and contractual liability, from one or more qualified insurance carriers with a party to rating by virtue A.M. Best & Co. of his or her service as a present or former director or officer of CPT, Inuvo or any of A-7. All insurance policies shall name Licensor and their respective Subsidiariesparents, subsidiaries and related companies and the respective officers, directors, agents and employees of each of them as additional insureds. Licensee shall furnish Licensor with certificates of insurance reflecting compliance with the foregoing obligations within thirty (30) days prior to first shipment. Each such certificate of insurance shall provide that no less than (30) thirty days prior written notice shall be given to Licensor in the event of material alterations to, or cancellation of, the coverage evidenced by such certificate.
c. Licensor shall be solely responsible for, and shall defend, hold harmless and indemnify Licensee, its directors, officers, employees and agents against any third party Claims, and any and all claims, demands, disputes, causes of action or damages, including reasonable outside accountants' and attorneys’ fees (collectively, "Claim”), arising out of actual an allegation relating to or alleged events, actions or omissions occurring or alleged to have occurred at or prior to referring to: (i) a claim that the Effective Time, in each case to use of the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) Trademark as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect by Licensor in accordance with their terms. For the terms of this Agreement violates or infringes upon the trademark, copyright or other intellectual property rights (including trade dress) of a period third party in or to the Product or (ii)any breach of six (6) years after this Agreement by Licensor, provided Licensor is given prompt written notice thereof and shall have the Effective Time, Parent shall maintain in effect option to undertake and conduct the indemnification, exculpation and advancement defense of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPTClaim. In any instance to which the foregoing indemnities pertain, Inuvo or Licensee shall cooperate fully with and assist Licensor in all respects in connection with any of their respective Subsidiaries such defense. Licensor shall reimburse Licensee for all reasonable out-of-pocket expenses actually incurred by Licensee in connection with the Indemnified Parties such cooperation and assistance. In any instance to which such indemnities pertain. Licensor shall not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder enter into a settlement of such Indemnified Partiesthird party Claim or admit liability or fault without Licensee's prior written approval, and all unless such rights in respect settlement includes an unconditional release of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofLicensee.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Section 12.01 Licensor shall indemnify, defend and hold harmless the present Licensee and former officers directors of CPTits Affiliates, Inuvo and their respective Subsidiaries officers, directors, members, managers, employees, agents, representatives, successors and assigns (collectivelyeach, together with their respective heirs, executors and administrators, the an “Indemnified Directors and OfficersIndemnitee”) against all damages, costs, expenses, interest (including prejudgment interest), losses, claims, damagesdemands, expenses (including liabilities, deficiencies and/or obligations, including, without limitation, reasonable attorneys’ fees and including disbursements of counsel (herein referred to, collectively, as “Damages”) arising out of or resulting from any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any third party claim, action, suit, Proceeding action or investigationproceeding related to, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged eventsresulting from Licensor’s breach of any representation, actions warranty, covenant, agreement or omissions occurring obligation under this License Agreement (each an “Action”).
Section 12.02 Licensor shall indemnify, defend and hold harmless each of the Indemnitees against all Damages arising out of, resulting from or alleged relating to any Action involving a claim that any manufacture, use, sale, offer for sale, distribution or importation of the Licensed IP or any Licensed Product outside the Field of Use in the Territory, or the exercise of any rights or privileges by Licensee granted to it under this License Agreement, infringes any patent or other intellectual property right of any third party; provided that, Licensor shall have occurred at no liability to Indemnitee with respect to any claim of infringement that is based solely upon (a) the combination of a Licensed Product with any other product or prior equipment not covered by the Licensed IP that is not reasonably anticipated by Licensor unless such combination is necessary to practice the Licensed IP and in such case, Licensor shall remain liable to the Effective TimeIndemnitee for such infringement; (b) the customization of a Licensed Product by Indemnitee or any other third party for another Person that is not reasonably anticipated by Licensor unless such customization is necessary to practice the Licensed IP and in such case, in each case Licensor shall remain liable to the fullest extent permitted by applicable Law.
Indemnitee for such infringement; and (c) Each the modification of Parenta Licensed Product by Indemnitee that is not authorized by Licensor and that is not reasonably anticipated by Licensor unless such modification is necessary to practice the Licensed IP and in such case, CPT and Inuvo agrees, that all rights Licensor shall remain liable to indemnification, exculpation and advancement the Indemnitee for such infringement.
Section 12.03 The Indemnitee shall within 30 days of expenses now existing such Indemnitee’s notice of such Action notify the indemnifying party in favor writing of any Indemnified Directors Action and Officers or any current or former employee cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of CPT, Inuvo or any the defense and investigation of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers Action and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope employ counsel reasonably acceptable to CPT Indemnitee to handle and Inuvo for claims arising from facts or events defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that occurred on or prior to adversely affects the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder any Indemnitee without the Indemnitee’s prior written consent, which shall not be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s unreasonably withheld or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Lawdelayed. The Indemnitee’s failure to perform any obligations under this Section 6.11 12.03 shall not relieve the indemnifying party of its obligation under this Section 12.03 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of the failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Section 12.04 Licensee shall, at all times during the Term and for five (5) years thereafter, obtain and maintain at its own expense the following types of insurance, with limits of liability not less than those specified below:
(a) Commercial general liability insurance against claims for bodily injury and property damage which shall include contractual coverage and product liability coverage, with limits of not less than $10,000,000 per occurrence and $20,000,000 in the aggregate; and
(b) Workers compensation and employers’ liability with limits to comply with the statutory requirements of the state(s) in which the License Agreement is to be performed. The policy shall include employers’ liability for not less than $5,000,000 per accident.
1.1. Licensee shall deliver certificates of insurance evidencing coverage to Licensor promptly upon request after the execution of this License Agreement and upon reasonably request thereafter. All policies provided for herein shall expressly provide that such policies shall not be cancelled, terminated or modified altered without at least thirty (30) days prior written notice to the Licensee, and Licensee shall promptly notify the Licensor in such the event that a manner as to affect adversely policy provided for herein is cancelled, terminated or altered. Except for Damages resulting from the Licensor’s gross negligence or willful misconduct, or arising from a breach of the Licensor’s confidentiality obligations hereunder, the Licensor’s maximum liability for Damages arising out of or resulting from any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns Action hereunder shall be express third-party beneficiaries of this Section 6.11)$10,000,000 per occurrence and $20,000,000 in the aggregate. This Section 6.11 shall survive Except for Damages resulting from the consummation Licensor’s gross negligence or willful misconduct, or arising from a breach of the Mergers and is intended to Licensor’s confidentiality obligations hereunder, in no event shall Licensor be liable for any consequential, incidental, indirect, special, punitive or exemplary damages (including, without limitation, lost profits, business or goodwill) suffered or incurred by the benefit of, and Indemnitee. In no case shall Licensor be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or liable for any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns damages arising out of the Parent shall assume the obligations set forth in this Section 6.11Indemnitee’s gross negligence or willful misconduct.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after Following the Effective Time, CCBG shall indemnify, defend and hold harmless each person who is or was prior to Effective Time in any manner that would adversely affect the rights thereunder a director, officer, employee or agent of the persons who at any time FFB or its Subsidiaries (each, an "Indemnified Party") against all losses, expenses, claims, damages or liabilities arising out of actions or omissions occurring on or prior to the Effective Time were entitled (including, without limitation, the transactions contemplated by this Agreement) to indemnificationthe full extent provided under Florida law and the Articles of Incorporation and Bylaws of FFB as in effect on the date hereof, advancement including provisions relating to advances of expenses incurred in the defense of any action or exculpation suit, to the extent any such provisions are, at the time indemnification pursuant to this Section 6.8(a) is sought, permitted under Florida law. Any Indemnified Party wishing to claim indemnification under this Section 6.8, upon learning of any such claim, action, suit, proceeding or investigation, shall notify CCBG thereof, provided that the CPT Certificate failure to so notify shall not affect the obligations of Incorporation, CCBG under this Section 6.8 except to the CPT Bylaws, the Inuvo Articles extent such failure to notify materially prejudices CCBG. CCBG's obligations under this Section 6.8(a) shall continue in full force and effect for a period of Incorporation, or the Inuvo Bylaws four (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries4) in respect of actions or omissions occurring at or prior to years from the Effective Time; provided, unless otherwise required by applicable Law (and provided however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim (a "Claim") asserted or made within such six-year period shall continue until the final disposition of such claim)Claim.
(b) From and after In connection with its indemnification obligations hereunder, CCBG shall have the Effective Time and until right to assume the expiration defense of any applicable statutes Claim and upon such assumption CCBG shall not be liable to any Indemnified Party for any legal expenses of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “other counsel or any other expenses subsequently incurred by any Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, Party in connection with any claimthe defense thereof, actionexcept that if CCBG elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interests between CCBG and the Indemnified Parties, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof the Indemnified Parties may retain counsel reasonably satisfactory to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiariesthem after consultation with CCBG, and arising out CCBG shall pay the reasonable fees and expenses of actual or alleged events, actions or omissions occurring or alleged such counsel for the Indemnified Parties. CCBG shall be obligated pursuant to have occurred at or this paragraph to pay for only one firm of counsel for all Indemnified Parties. CCBG shall not be liable for any settlement effected without its prior to the Effective Time, in each case to the fullest extent permitted by applicable Lawwritten consent (which consent shall not be unreasonably withheld).
(c) Each of Parent, CPT CCBG shall maintain FFB's existing directors and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws officers liability insurance policy (or a policy providing coverage on substantially the organizational documents of CPT’s same terms and conditions) for acts or Inuvo’s Subsidiaries) shall survive omissions occurring prior to the Mergers and shall continue in full force and effect in accordance with their terms. For Effective Time by persons who are currently covered by such insurance policy maintained by FFB for a period of six (6) two years after following the Effective Time, Parent provided, however, that CCBG shall not be obligated to pay premiums to maintain such insurance, on a per annum basis, in effect excess of 125% of the indemnification, exculpation and advancement amount of expenses provisions annual premiums paid as of CPT Certificate the date of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder renewal of such Indemnified Partiesinsurance coverage. If the annual premiums of such insurance would exceed such amount, and all CCBG shall use its best efforts to provide such rights in respect level of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within insurance having the coverage described above as can be obtained for an annual premium equal to such period shall continue until the final disposition or resolution thereofmaximum amount.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries provisions of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is 6.8 are intended to be for the benefit of, and shall be enforceable by, the each Indemnified Parties referred to hereinParty and his or her heirs and representatives.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Sources: Merger Agreement
Indemnification; Insurance. (a) The provisions Soupman agrees and undertakes to defend, indemnify and save harmless each of MoM and ▇▇▇▇▇▇▇▇▇ ▇’▇▇▇▇ and their respective employees, directors, officers, shareholders, Affiliates, licensees, assigns and agents from and against any and all claims, demands, actions and /or proceedings (threatened and/or instituted) or liability of any kind arising from or in connection with respect to indemnificationany Soupman products or services; the manufacture, advancement labeling, sale, promotion or distribution or other exploitation of expenses any Soupman products or services; the Promotional Materials; Soupman’s business and exculpation contained in the Parent Certificate operations; Soupman’s actions or omissions, Soupman’s breach of Incorporation and Parent Bylaws shall not be amendedthis Agreement; any services provided or performed by MoM or ▇▇▇▇▇▇▇▇▇ ▇’▇▇▇▇ hereunder; any actual or threatened breach by Soupman of any of its representations, repealed warranties or otherwise modified for agreements hereunder; or any other claims of any kind by a period third party resulting from Soupman’s exercise of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder granted and use of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and services provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)hereunder.
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim MoM agrees to which the indemnification relates, Parent shall indemnify, defend indemnify and hold harmless the present and former officers directors of CPTSoupman for any claims, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claimssuits, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees actions, or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and costs arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, any breach of MoM’s warranties set forth in each case to the fullest extent permitted by applicable LawSection 3.8 above.
(c) Each of Parent, CPT Soupman shall procure and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue maintain at its own expense in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Timeat all times during which Endorsed Products, Parent shall maintain in effect the indemnificationare being sold, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time responsible insurance carrier acceptable to MoM, a public liability insurance policy including products liability and advertising injury coverage with respect to directors’ the Endorsed Products, with a limit of liability not less than US$3,000,000. It shall be acceptable if such coverage is provided by a product liability policy and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail additional umbrella policy. Such insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be written for the benefit of, of Soupman and MoM and ▇▇▇▇▇▇▇▇▇ ▇’▇▇▇▇ and shall be enforceable by, provide for at least thirty (30) days prior written notice to said parties of the Indemnified Parties referred to herein.
(f) If the Parent cancellation or any substantial modification thereof. Each of its respective successors or assigns (i) consolidates with or merges into any other Person MoM 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 case, to the extent necessary, proper provision ▇▇▇▇▇▇▇▇▇ ▇’▇▇▇▇ shall be made so that the successors a named insured on each such policy. Such insurance may be obtained by Soupman in conjunction with a policy which covers products other than Products. Soupman shall, from time to time upon reasonable request by MoM, promptly furnish or cause to be furnished to MoM evidence in form and assigns substance satisfactory to MoM of the Parent shall assume maintenance of the obligations set forth insurance required by the above, including, but not limited to, copies of policies, certificates of insurance (with applicable riders and endorsements) and proof of premium payments. Nothing contained in this Section 6.11paragraph shall be deemed to limit in any way the indemnification obligations of Soupman hereunder.
Appears in 1 contract
Indemnification; Insurance. 10.1 Company shall hold harmless and indemnify Mayo, its trustees, directors, officers, employees, agents and the successor and assigns of any of the foregoing (collectively, the "Indemnitees"), and hold each Indemnitee harmless from and against any and all losses, costs, expenses, damages and liabilities resulting from claims, actions, demands, judgments, suits or proceedings brought by third parties (including, without limitation, reasonable attorneys' fees and other expenses of litigation) (any of the foregoing, a "Claim"), regardless of the legal theory asserted, against any Indemnitee, arising from or occurring as a result of: (a) The provisions the exercise or practice by Company or its Affiliates or Sublicensees of the rights and licenses granted under this Agreement, and (b) the research, development, design, manufacture, distribution, use, sale, importation, exportation or other disposition of Licensed Products by Company or its Affiliates or Sublicensees; except and to the extent that such Claim(s) arise from or are related to a breach by Mayo of any of its representations or warranties in Section 12.1. Any Indemnitee that intends to claim indemnification under this Article 10 shall: (i) promptly notify Company in writing of any Claim with respect to which the Indemnitee intends to claim such indemnification, advancement (ii) give Company sole control of expenses the defense and/or settlement thereof, and exculpation contained (iii) provide Company, at Company's expense, with reasonable assistance and full information reasonably available to Mayo with respect to such Claim. Company shall not settle any claim, suit or proceeding subject to this Article 10 or otherwise consent to an adverse judgment in such claim, suit or proceeding if the Parent Certificate same materially diminishes the rights or interests of Incorporation and Parent Bylaws the Indemnitee without the express written consent of the Indemnitee. Notwithstanding the foregoing, Company shall have no obligations for any Claim if the Indemnitee seeking indemnification makes any admission, settlement or other communication regarding such Claim (unless made truthfully under a circumstance that legally requires such act by Mayo, in which case Mayo shall use its best efforts to inform Company of such of its intent to make such admission prior to making it) without the prior written consent of Company, which consent shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.unreasonably withheld
Appears in 1 contract
Sources: Exclusive License Agreement (Unity Biotechnology, Inc.)
Indemnification; Insurance. (a) The provisions Company shall indemnify and hold harmless each of WIC, its affiliates, and their respective directors, officers, partners, members, controlling persons (within the meaning of Section 15 of the Securities Act of 1933 or Section 20(a) of the Securities Act of 1934), if any, agents and employees (collectively referred to as "Indemnified Persons" and individually as an "Indemnified Person") from and against any and all claims, liabilities, losses, damages and expenses incurred by any Indemnified Person (excluding those resulting from the gross negligence or willful misconduct of the Indemnified Person) and fees and disbursements of the respective Indemnified Person's counsel) which (i) are related to or arise out of (A) actions taken or omitted to be taken (including any untrue statements made or any statements omitted to be made) by the Company or any of its subsidiaries or (B) actions taken or omitted to be taken by an Indemnified Person with the Company's or any of its subsidiaries' consent or in conformity with the Company's or any such subsidiaries' instructions or the Company's or any such subsidiaries' actions or omissions or (ii) are otherwise related to or arise out of WIC's engagement hereunder, and will reimburse each Indemnified Person for all costs and expenses, including fees of any Indemnified Person's counsel, as they are incurred, in connection with investigating, preparing for, defending, or appealing any action, formal or informal claim, investigation, inquiry or other proceeding, whether or not in connection with pending or threatened litigation, caused by or arising out of or in connection with WIC's acting pursuant to the engagement hereunder, whether or not any Indemnified Person is named as a party thereto and whether or not any liability results therefrom. The Company will not however, be responsible for any claims, liabilities, losses, damages, or expenses pursuant to clause (ii) of the preceding sentence that have resulted primarily from WIC's gross negligence or willful misconduct. The Company also agrees that neither WIC nor any other Indemnified Person shall have any liability to the Company or any of its subsidiaries for or in connection with such engagement except for any claims, liabilities, losses, damages, or expenses incurred by the company or any such subsidiary to the extent the same have resulted from WIC's gross negligence or wilful misconduct. The Company further agrees that it will not, and the Company will cause its subsidiaries to not, without the prior written consent of WIC, settle or compromise or consent to the entry of any judgement in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of WIC and each other Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceeding. The foregoing right to indemnity shall be in addition to any rights that WIC and/or any other Indemnified Person may have at common law or otherwise and shall remain in full force and effect following the completion or any termination of the engagement. The Company hereby consents, and shall cause its subsidiaries to consent, to personal jurisdiction and to serve and venue in any court in which any claim which is subject to this agreement is bought against WIC or any other Indemnified Person. It is understood that, in connection with WIC's engagement, WIC may also be engaged to act for the Company or any of its subsidiaries in one or more additional capacities, and that the terms of this engagement or any such additional engagement may be embodied in one or more separate written agreements. Unless such additional engagement is undertaken with respect to indemnificationa matter that is the subject of another written agreement that contains a specific provision(s) dealing with indemnification of WIC, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws this indemnification shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior apply to the Effective Time were entitled engagement specified in Section 1 hereof as well as to indemnification, advancement any such additional engagement(s) and any modification of expenses said engagement or exculpation under such additional engagement(s) and shall remain in full force and effect following the CPT Certificate completion or termination of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, said engagement or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)additional engagements.
(b) From and after At the Effective Time and until the expiration inception of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her individual's service as a present member of the Board of Directors of the Company (or former director its Executive Committee) or officer as the Chief Executive Officer or Chief Financial Officer of CPTthe Company pursuant to Section 3(a), Inuvo 3(b) or any 3(c) hereof, the Company shall enter into an Indemnification Agreement with such individual in substantially the form and substance the same as agreements then providing indemnification for other members of their respective Subsidiaries, and arising out the Company's Board of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable LawDirectors.
(c) Each of Parent, CPT The Company shall purchase and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor maintain insurance on behalf of any Indemnified individual serving as a member of the Board of Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws Company (or its Executive Committee) or as the organizational documents Chief Executive Officer or Chief Financial Officer of CPT’s the Company pursuant to Sections 3(a), (b) or Inuvo’s Subsidiaries(c) shall survive the Mergers and shall continue hereof against any liability that may be asserted against or expense that may be incurred by such individual in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries connection with the Indemnified Parties Company's activities. Such insurance shall be of a nature and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies consistent with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition toother, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit ofsimilar publicly traded companies, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so at least as extensive as that the successors and assigns purchased on behalf of the Parent shall assume the obligations set forth in this Section 6.11Company's other officers and directors, if applicable.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect Parent and Subsidiary agree that all rights to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed indemnification for acts or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time omissions occurring prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any the current or former employee of CPTtrustees, Inuvo directors or any of their respective Subsidiaries officers (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) of the Company and its subsidiaries as provided in CPT Certificate their respective declarations of Incorporationtrust, CPT Bylaws, Inuvo Articles certificates of Incorporation incorporation or Inuvo Bylaws bylaws (or the similar organizational documents of CPT’s or Inuvo’s Subsidiaries) documents), shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms.
(i) In addition to the rights provided in Section 6(a) above, in the event that any officer, director or trustee of the Company or any of the Company’s subsidiaries (the “Indemnification Parties”) is, or is threatened to be, made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including without limitation, actions by or on behalf of securityholders, (each, a “Proceeding”), by reason of the fact that he is or was an officer, employee, director or trustee of the Company or any of the Company’s subsidiaries or any action or omission by such individual in his capacity as such (including any action or omission occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby), Parent and Subsidiary and their respective successors and assigns (the “Indemnifying Parties”) shall, from and after the Effective Time, indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnification Party against any losses, claims, liabilities, expenses (including reasonable documented attorneys’ fees and expenses), judgments, fines and amounts paid in settlement in accordance herewith in connection with any such Proceeding.
(ii) Any Indemnification Party proposing to assert the right to be indemnified under this Section 6(b) shall, promptly after receipt of notice of commencement of any action against such Indemnification Party in respect of which a claim is to be made under this Section 6(b) against the Indemnifying Parties, notify the Indemnifying Parties of the commencement of such action, enclosing a copy of all papers served; provided, however, that the failure to provide such notice shall not affect the obligations of the Indemnifying Parties except to the extent such failure to notify materially prejudices the Indemnifying Parties’ ability to defend such claim, action, suit, proceeding or investigation; and provided further, however, that, in the case of any Proceeding pending, to the knowledge of the Company, at the Control Time or Effective Time, the Company shall notify Parent pursuant to this Section 6(b) prior to the Control Time or Effective Time, as the case may be.
(iii) If any such action is brought against any of the Indemnification Parties and such Indemnification Parties notify the Indemnifying Parties of its commencement, the Indemnifying Parties will be entitled to participate in and, to the extent that they elect by delivering written notice to such Indemnification Parties promptly after receiving notice of the commencement of the action from the Indemnification Parties, to assume the defense of the action and after notice from the Indemnifying Parties to the Indemnification Parties of their election to assume the defense, the Indemnifying Parties will not be liable to the Indemnification Parties for any legal or other expenses of their counsel except as provided below. If the Indemnifying Parties assume the defense, the Indemnifying Parties shall have the right to settle such action without the consent of the Indemnification Parties; provided, however, that no Indemnifying Parties, in the defense of any such action shall, except with the consent of the Indemnification Parties, consent to entry of any judgment or enter into any settlement that (A) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnification Parties of a full, unconditional release from all liability with respect to such action, or (B) contains obligations of such Indemnification Party other than with respect to the payment of money.
(iv) The Indemnification Parties will have the right to employ their own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnification Parties unless (A) the employment of counsel by the Indemnification Parties has been authorized in writing by the Indemnifying Parties, (B) the Indemnification Parties have reasonably concluded (based on advice of counsel to the Indemnification Parties) that there may be legal defenses available to them that are different from or in addition to and inconsistent with those available to the Indemnifying Parties, (C) a conflict or potential conflict exists (based on advice of counsel to the Indemnification Parties) between the Indemnification Parties and the Indemnifying Parties (in which case the Indemnifying Parties will not have the right to direct the defense of such action on behalf of the Indemnification Parties) or (D) the Indemnifying Parties have not in fact employed counsel to assume the defense of such action within a reasonable time (not to exceed 30 days) after receiving notice of the commencement of the action from the Indemnification Parties, in each of which cases, the reasonable documented fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Parties and shall promptly be paid by each Indemnifying Party within 20 days of receipt by the Indemnifying Parties of notice and documentation that such fees and expenses are due and payable.
(v) Notwithstanding anything contained in this Section 6.6 to the contrary, the Indemnifying Parties shall not be obligated to advance any expenses or costs prior to receipt of (A) an undertaking by or on behalf of the Indemnification Party to repay any expenses advanced if it shall ultimately be determined that the Indemnification Party is not entitled to be indemnified against such expense pursuant to the last sentence of this Section 6(b) and (B) such other representations as may be required by law. It is understood that the Indemnifying Parties shall not, in connection with any Proceeding or Proceedings in the same jurisdiction, be liable for the reasonable documented fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all such Indemnification Parties unless (x) the employment of more than one counsel has been authorized in writing by the Indemnifying Parties, (y) any of the Indemnification Parties have reasonably concluded (based on advice of counsel to the Indemnification Parties) that there may be legal defenses available to them that are different from or in addition to and inconsistent with those available to other Indemnification Parties or (z) a conflict or potential conflict exists (based on advice of counsel to the Indemnification Parties) between any of the Indemnification Parties and the other Indemnification Parties, in each case of which the Indemnifying Parties shall be obligated to pay the reasonable documented fees and expenses of such additional counsel or counsels on the same basis as provided in the immediately preceding sentence.
(vi) Notwithstanding anything to the contrary set forth in this Agreement, the Indemnifying Parties (A) shall not be liable for any settlement effected without their prior written consent and (B) shall not have any obligation hereunder to any Indemnification Party to the extent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnification is prohibited by applicable law. In the event of a final and non-appealable determination by a court that any payment of expenses is prohibited by applicable law, the Indemnification Parties shall promptly refund to the Indemnifying Parties the amount of all such expenses theretofore advanced pursuant hereto.
(vii) In no event shall the Indemnifying Parties be responsible for any losses, claims, liabilities, expenses, judgments, fines or amounts paid in settlement of (A) any Proceedings arising due to violations of Section 16 under the Exchange Act or (B) for which the Indemnification Party has previously been reimbursed from other sources.
(c) For a period of six (6) years after from the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPTCompany’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to current directors’ and officers’ liability insurance in an amount covering those trustees, directors and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to officers who are currently covered by the Effective Time at a cost that is reasonable and customary for tail insurance policies with a Company’s directors’ and officers’ liability insurance policy insurer reasonably acceptable to CPT and Inuvo (the “D&O InsuranceCompany Insured Parties”) (a copy of which has been heretofore delivered to Parent) (or, in lieu of maintaining such insurance, cause coverage to be provided under any policy maintained for the benefit of Parent or any of its subsidiaries or otherwise obtained by Parent, so long as the terms thereof are no less advantageous to the intended beneficiaries thereof than those of the Company’s policy). ; provided, however, that in no event shall Parent shall use commercially reasonable efforts be required to obtain competitive quotes (from insurance providers with comparable ratings) expend in excess of 200% of the annual premiums currently paid by the Company for such insurance, and; provided, further, that if the annual premiums of such insurance coverage in an effort exceed such amount, Parent shall be obligated to reduce obtain a policy with the greatest coverage available for a cost thereofnot exceeding such amount. In lieu of the foregoing, Parent may purchase six-year “tail” coverage covering acts or omissions prior to the Effective Time on substantially similar terms to the existing policy of the Company.
(ed) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 6.6 shall survive the consummation of the Mergers and Merger, is intended to be for benefit the benefit ofIndemnified Parties, and shall be enforceable by, binding on all successors and assigns of Parent and the Indemnified Parties referred to herein.
(f) Surviving Company. If the Parent or Subsidiary or any of its respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each case, to the extent necessary, proper provision shall be made so that such case the successors and assigns of the Parent such entity shall assume the obligations set forth in this Section 6.116.6, which obligations are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each director, trustee and officer covered hereby.
Appears in 1 contract
Sources: Merger Agreement (Falcon Financial Investment Trust)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Section 12.01 Licensor shall indemnify, defend and hold harmless the present Licensee and former officers directors of CPTits Affiliates, Inuvo and their respective Subsidiaries officers, directors, members, managers, employees, agents, representatives, successors and assigns (collectivelyeach, together with their respective heirs, executors and administrators, the an “Indemnified Directors and OfficersIndemnitee”) against all damages, costs, expenses, interest (including prejudgment interest), losses, claims, damagesdemands, expenses (including liabilities, deficiencies and/or obligations, including, without limitation, reasonable attorneys’ fees and including disbursements of counsel (herein referred to, collectively, as “Damages”) arising out of or resulting from any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any third party claim, action, suit, Proceeding action or investigationproceeding related to, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged eventsresulting from Licensor’s breach of any representation, actions warranty, covenant, agreement or omissions occurring obligation under this License Agreement (each an “Action”).
Section 12.02 Licensor shall indemnify, defend and hold harmless each of the Indemnitees against all Damages arising out of, resulting from or alleged relating to any Action involving a claim that any manufacture, use, sale, offer for sale, distribution or importation of the Licensed IP or any Licensed Product outside the Field of Use in the Territory, or the exercise of any rights or privileges by Licensee granted to it under this License Agreement, infringes any patent or other intellectual property right of any third party; provided that, Licensor shall have occurred at no liability to Indemnitee with respect to any claim of infringement that is based solely upon (a) the combination of a Licensed Product with any other product or prior equipment not covered by the Licensed IP that is not reasonably anticipated by Licensor unless such combination is necessary to practice the Licensed IP and in such case, Licensor shall remain liable to the Effective TimeIndemnitee for such infringement; (b) the customization of a Licensed Product by Indemnitee or any other third party for another Person that is not reasonably anticipated by Licensor unless such customization is necessary to practice the Licensed IP and in such case, in each case Licensor shall remain liable to the fullest extent permitted by applicable Law.
Indemnitee for such infringement; and (c) Each the modification of Parenta Licensed Product by Indemnitee that is not authorized by Licensor and that is not reasonably anticipated by Licensor unless such modification is necessary to practice the Licensed IP and in such case, CPT and Inuvo agrees, that all rights Licensor shall remain liable to indemnification, exculpation and advancement the Indemnitee for such infringement.
Section 12.03 The Indemnitee shall within 30 days of expenses now existing such Indemnitee’s notice of such Action notify the indemnifying party in favor writing of any Indemnified Directors Action and Officers or any current or former employee cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of CPT, Inuvo or any the defense and investigation of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers Action and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope employ counsel reasonably acceptable to CPT Indemnitee to handle and Inuvo for claims arising from facts or events defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that occurred on or prior to adversely affects the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder any Indemnitee without the Indemnitee’s prior written consent, which shall not be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s unreasonably withheld or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Lawdelayed. The Indemnitee’s failure to perform any obligations under this Section 6.11 12.03 shall not relieve the indemnifying party of its obligation under this Section 12.03 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of the failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Section 12.04 Licensee shall, at all times during the Term and for five (5) years thereafter, obtain and maintain at its own expense the following types of insurance, with limits of liability not less than those specified below:
(a) Commercial general liability insurance against claims for bodily injury and property damage which shall include contractual coverage and product liability coverage, with limits of not less than $10,000,000 per occurrence and $20,000,000 in the aggregate; and
(b) Workers compensation and employers’ liability with limits to comply with the statutory requirements of the state(s) in which the License Agreement is to be performed. The policy shall include employers’ liability for not less than $5,000,000 per accident. Licensee shall deliver certificates of insurance evidencing coverage to Licensor promptly upon request after the execution of this License Agreement and upon reasonably request thereafter. All policies provided for herein shall expressly provide that such policies shall not be cancelled, terminated or modified altered without at least thirty (30) days prior written notice to the Licensee, and Licensee shall promptly notify the Licensor in such the event that a manner as to affect adversely policy provided for herein is cancelled, terminated or altered. Except for Damages resulting from the Licensor’s gross negligence or willful misconduct, or arising from a breach of the Licensor’s confidentiality obligations hereunder, the Licensor’s maximum liability for Damages arising out of or resulting from any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns Action hereunder shall be express third-party beneficiaries of this Section 6.11)$10,000,000 per occurrence and $20,000,000 in the aggregate. This Section 6.11 shall survive Except for Damages resulting from the consummation Licensor’s gross negligence or willful misconduct, or arising from a breach of the Mergers and is intended to Licensor’s confidentiality obligations hereunder, in no event shall Licensor be liable for any consequential, incidental, indirect, special, punitive or exemplary damages (including, without limitation, lost profits, business or goodwill) suffered or incurred by the benefit of, and Indemnitee. In no case shall Licensor be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or liable for any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns damages arising out of the Parent shall assume the obligations set forth in this Section 6.11Indemnitee’s gross negligence or willful misconduct.
Appears in 1 contract
Sources: License Agreement (Nuvectra Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in To the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporationgreatest extent allowed by Texas Law, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period District shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend indemnify and hold harmless the present ACD, its affiliates, subsidiaries, trustees, directors, officers, agents, servants, and former officers directors of CPTemployees (each, Inuvo an “Indemnitee”), from and their respective Subsidiaries (collectively, together with their respective heirs, executors against any and administrators, the “Indemnified Directors and Officers”) against all lossesdamages, claims, damagesliability, losses and expenses incurred by any Indemnitee in respect of, arising out of, or involving, a claim made by any third-party against any Indemnitee resulting from or arising in connection with any advice, guidance, act or omission on the part of the District, its trustees, directors, officers, directors, agents, servants or employees, whether in connection with the services or support functions to be provided under this Agreement or activities undertaken by the District on behalf of other schools, excluding, however, any liability resulting from or arising in connection with (i) actions taken by the District at the express request or direction of ACD, (ii) any advice, guidance, acts or omissions by the District premised on a misrepresentation or failure to disclose information when under an obligation to do so by the person or entity seeking indemnification, or (iii) any liability to the extent arising as a result of negligence, intentional tort, fraud or criminal conduct on the part of ACD or any of its trustees, officers, agents, or employees.
b) If a third party claim is made against an Indemnitee, that does not include a claim for liability resulting from or arising in connection with (i) actions taken by the District at the express request or direction of ACD, (ii) any advice, guidance, acts or omissions by the District premised on a misrepresentation or failure to disclose information when under an obligation to do so by the person or entity seeking indemnification, or (iii) any liability to the extent arising as a result of negligence, intentional tort, fraud or criminal conduct on the part of ACD or any of its trustees, officers, agents or employees, then such Indemnitee shall give written notice to the District of such claim as soon as reasonably practicable after such Indemnitee has received notice thereof (provided that failure to give timely notice shall not limit the indemnification obligations of the District hereunder except to the extent that the delay in giving, or failure to give, such notice has materially prejudiced the ability of the District to defend the claim). The District shall defend such claim, at the District’s own expense or through its insurance as applicable and with counsel selected by the District and reasonably satisfactory to such Indemnitee, provided that an Indemnitee shall at all times also have the right to fully participate in the defense at its own expense unless the Indemnitee and the District reasonably determine that representation of Indemnitee and the District by the same counsel would materially prejudice the interest of District or the Indemnitee; provided that the District will only be responsible under such circumstances for the expenses of a single additional counsel for all Indemnitees). If the District shall fail to commence a defense against such claim within thirty (30) days after notice thereof shall have been given by an Indemnitee to the District or if the District shall not diligently pursue such defense, such Indemnitee shall have the right, but not the obligation, to undertake the defense of, and to compromise or settle (exercising reasonable business judgment), the claim on behalf, for the account, and at the risk and expense (including the payment of reasonable attorneys’ fees of such Indemnitee regardless of whether the Indemnitee prevails against the third party claim) of the District. If the District assumes the defense of such claim, the obligation of the District hereunder as to such claim shall include taking all reasonably necessary steps in the defense of such claim.
c) The District shall not consent to the entry of any judgment or settle or compromise any third party demands, claims, actions, suits or proceedings for which an Indemnitee has sought indemnification from the District and including for which Indemnitee has not been fully released unless it shall have given such Indemnitee not less than fifteen (15) days’ prior written notice of the proposed consent, settlement or compromise, and afforded such Indemnitee an opportunity to consult with the District regarding the proposed consent, settlement or compromise, and shall not consent to the entry of any attorneys’ fees judgment or enter into any settlement or compromise without the approval of such Indemnitee. An Indemnitee shall not unreasonably withhold or delay its approval of a proposed consent, settlement or compromise. In determining whether to give its approval, an Indemnitee may consider whether the proposed consent, settlement or compromise includes as an unconditional term thereof the giving by the claimant to such Indemnitee of a release from all liabilities and obligations of whatever kind or nature in respect of such claim except the liabilities and obligations satisfied by the District. If the Indemnitee unreasonably withholds its approval of a proposed consent settlement or compromise, and shall not consent to the entry of any judgment or enter into any settlement or compromise that provides the Indemnitee with a release from all liabilities and obligations of whatever kind or nature in respect of such claim except the liabilities and obligations satisfied by the District, Indemnitee shall continue its defense at its own cost and the District is not required to provide any additional amounts above the proposed consent settlement or compromise in any subsequent consent, settlement, judgment or compromise negotiated by Indemnitee.
d) The rights to indemnification and reimbursement provided by, or granted pursuant to, this Section shall continue as to an Indemnitee who has ceased to be a trustee, director, officer, agent, servant or employee of ACD (or any other fees incurred to enforce person indemnified hereunder) but only for claims based upon events that occurred while the Indemnitee was a trustee, director, officer, agent, servant or employee of ACD. The provisions of this Section 6.11(b)shall be a contract between the District, Liabilities or amounts that are paid on the one hand, and each Indemnitee who served at any time while this Section is in settlement ofeffect in any capacity entitling such Indemnitee to indemnification hereunder, or otherwiseon the other hand, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof pursuant to which any Indemnified Directors the District and Officers is or may become a party each such Indemnitee intend to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their termsbe legally bound. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, No repeal or otherwise modify such provisions in modification of this Section shall affect any manner that would adversely affect the rights thereunder or obligations with respect to any state of such Indemnified Parties, and all such rights in respect of facts then or theretofore existing or thereafter arising or any action, suit, suit or proceeding theretofore or investigation pending or asserted or claim made thereafter brought or threatened within based in whole or in part upon such period shall continue until the final disposition or resolution thereofstate of facts.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights District agrees to request from its insurance carriers that ACD be added as an additional named insured on any District held policies of insurance related to transportation or general liability. The District will provide ACD with a copy of each Indemnified Party hereunder shall be in addition toinsurance policy, and not in limitation ofindicating ACD as an additional insured, any other rights such Indemnified Party may have under within 10 business days of receipt of documentation from the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPTDistrict’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Lawinsurance carriers. The obligations under this Section 6.11 shall not be terminated or modified District will also notify ACD of any policy change and provide ACD with updated records upon any changes in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to hereincoverage.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Sources: Partnership Agreement
Indemnification; Insurance. (a) The provisions All rights to indemnification and exculpation from liability and rights to advancements of expenses relating thereto now provided in the Partnership Agreement in favor of the General Partner, its “Affiliates” as defined in the Partnership Agreement, and all officers, partners, directors, employees and agents of the General Partner and its Affiliates (the “Indemnitees”) shall survive the Merger with respect to indemnification, advancement of expenses acts and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided provided, however, that all rights notwithstanding anything to the contrary contained herein or in the Partnership Agreement, the Survivor shall have no obligation to indemnify Group or any of indemnification, advancement of expenses and exculpation in respect of the HWG Parties for any claim asserted liability for which Parent or made within such six-year period shall continue until the final disposition of such claim)Survivor is entitled to indemnification pursuant to the Purchase Agreement.
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at At or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each Partnership shall obtain a “single premium tail insurance policy” of Parentdirectors’ and officers’ insurance and fiduciary liability insurance, CPT and Inuvo agreesfor the benefit of those persons who are Indemnitees at the date of this Agreement, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For providing coverage for a period of six (6) years after the Effective Time, Parent shall maintain in effect for the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder benefit of such Indemnified PartiesIndemnitees, and all such rights in providing coverage with respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to matters occurring prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from Time that is at least equal to the Effective Time with respect to coverage provided under the directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail fiduciary liability insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable currently applicable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereofthose persons.
(ec) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under In the CPT Certificate of Incorporation, event Parent or the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Survivor or any of its respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent Survivor shall assume the obligations set forth in this Section 6.116.08.
(d) The Survivor shall pay all expenses (including fees and expenses of counsel) that may be incurred by any Indemnitee in successfully enforcing the indemnity or other obligations under this Section 6.08.
(e) The provisions of this Section 6.08 are (i) intended to be for the benefit of, and to be enforceable by, each Indemnitee, his or her heirs and his or her 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
Indemnification; Insurance. (a) The provisions with respect to indemnificationA. Licensee shall, advancement at all times during the term of expenses this Agreement and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amendedthereafter, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless ISURF (including ISURF’s trustees, members, officers, directors, employees affiliates and independent contractors), Iowa State University (including Iowa State University’s trustees, members, officers, directors, employees, students, affiliates and independent contractors), and the present and former officers directors inventors of CPT, Inuvo and their respective Subsidiaries the Licensed Patents (collectively, together with their respective heirs, executors and administrators, the hereinafter referred to each as an “Indemnified Directors Party” and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred collectively referred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation), CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and harmless against any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such claims, proceedings, demands, liabilities, losses and expenses, including legal expenses and reasonable attorneys fees, arising out of or relating to: (i) Licensee’s exercise of any right conveyed under or breach of this Agreement; (ii) the Products, including death of or injury to any person or persons or out of any damage to any business interest or property; and/or the production, manufacture, sale, use, lease, import, export, consumption or advertisement of Products; (iii) exhaustion of ISURF’s rights in respect patents, that were not included in the Licensed Patents, such exhaustion due to actions or inaction by or on behalf of Licensee; and (iv) any actionthird party’s breach of its agreement regarding the manufacture of the Products or act or omission of willful misconduct or negligence. Without ISURF’s prior written approval, suit, proceeding Licensee shall not admit the fault of or investigation pending or asserted or claim made or threatened within such period shall continue until create any obligations on any Indemnified Party. Each Indemnified Party has the final disposition or resolution thereofright to select and retain counsel of its own choosing to defend its interests.
(d) Prior B. Licensee agrees to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ continuously maintain liability insurance in an amount coverage appropriate to assure its indemnification and scope reasonably acceptable to CPT other obligations under this Agreement and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage sufficiently covers the Indemnified Parties. Within ninety (90) days after the execution of this Agreement and thereafter annually between January 1 and January 31 of each year, Licensee will present evidence to ISURF that the insurance coverage is being maintained. In addition, Licensee shall provide ISURF with at least thirty (30) days prior written notice of any change in an effort to reduce or cancellation of the cost thereofinsurance coverage.
(e) The rights of each Indemnified Party hereunder shall be in addition toC. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN NO EVENT SHALL THE INDEMNIFIED PARTIES OR THEIR AGENTS BE LIABLE FOR ANY REASON WHATSOEVER FOR ANY INDIRECT, and not in limitation ofSPECIAL, any other rights such Indemnified Party may have under the CPT Certificate of IncorporationINCIDENTAL, the CPT BylawsEXEMPLARY, the Inuvo Articles of IncorporationCONSEQUENTIAL, the Inuvo BylawsPUNITIVE OR ANY OTHER DAMAGES, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirsINCLUDING TO LICENSEE, successors and assigns shall be express thirdANY CUSTOMERS OR DISTRIBUTORS OF LICENSEE OR TO ANY END USERS OF PRODUCTS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY RELATED AGREEMENT, OR THE PERFORMANCE OR NON-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit ofPERFORMANCE HEREOF OR THEREOF, and shall be enforceable byOR OUT OF THE USE, the Indemnified Parties referred to hereinPERFORMANCE OR NONPERFORMANCE OF ANY PRODUCT INCLUDING, BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL,THE SUPPLY OF ANY INFORMATION TO LICENSEE PURSUANT TO THIS AGREEMENT OR ANY RELATED AGREEMENT OR OUT OF THE USE OF SUCH INFORMATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Sources: Non Exclusive License Agreement
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent 10.1 By SkyePharma. SkyePharma shall indemnify, defend and hold harmless the present Endo and former officers directors of CPTits Affiliates, Inuvo Sublicensees and Subcontractors, and their respective Subsidiaries directors, officers, employees and agents, from and against any and all liabilities, damages, losses, costs and expenses (including the reasonable fees of attorneys and other professionals) (collectively, together with "Damages") arising out of or resulting from:
(a) gross negligence, recklessness or wrongful intentional acts or omissions of SkyePharma or its Affiliates, Sublicensees or Subcontractors, and their respective heirsdirectors, executors officers, employees and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwiseagents, in connection with SkyePharma's activities contemplated under this Agreement, the Supply Agreements and the Quality Agreements;
(b) any claimwarranty claims, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo Product recalls or any tort claims of their respective Subsidiaries, and personal injury (including death) or property damage relating to or arising out of actual any use, sale or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.offer for sale of any Product;
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor any breach of any Indemnified Directors and Officers representation or any current warranty or former employee covenant made by SkyePharma pursuant to Section 8 or pursuant to Section 5 of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.Supply Agreements;
(d) Prior to the Effective Timeany claim made or action taken by ▇▇▇▇ Capital Royalty Acquisition Fund, ParentL.P., CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period its affiliates or its or their respective successors or assigns against Endo or its Affiliates, Sublicensees and Subcontractors in any way arising out of six (6) years or resulting from the Effective Time transactions contemplated by this Agreement or the Product, except for the failure by Endo to make payment either to SkyePharma or as directed by SkyePharma to ▇▇▇▇ Capital with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable all or a portion of the payment to CPT and Inuvo for claims arising from facts or events that occurred on or prior which SkyePharma is obligated to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable make to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.▇▇▇▇ Capital; and
(e) The rights any claim made or action taken (including without limitation injunctive action) which is referred to in the letter from ▇▇▇▇▇ ▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇, dated December 31, 2002; in the case of each Indemnified Party hereunder shall be in addition toclauses (a) through (c), and only to the extent not in limitation ofdue to the gross negligence, any other rights such Indemnified Party may have under the CPT Certificate recklessness or wrongful intentional acts or omissions of IncorporationEndo or its Affiliates, the CPT BylawsSublicensees or Subcontractors, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirsdirectors, successors officers, employees and assigns agents. It is specifically agreed that in the case of indemnification pursuant to Section 10.1(e), the Damages shall be express third-party beneficiaries include all payments made by Endo to SkyePharma relating to [Confidential Information Has Been Omitted And Furnished Separately To The Securities And Exchange Commission]. In the event that any such amounts have been paid or credited by SkyePharma prior to the occurrence of this Section 6.11). This Section 6.11 shall survive the consummation any of the Mergers foregoing events and subsequently such claim or action covered under Section 10.1(e) is intended to be for the benefit offinally determined (whether by a final court order, and shall be enforceable by, the Indemnified Parties referred to herein.
(ffinal settlement or otherwise) If the Parent or which does not result in any of its respective successors the foregoing events, such amounts so paid or assigns (i) consolidates with or merges into any other Person credited shall become immediately due 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 owing from Endo to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11SkyePharma.
Appears in 1 contract
Indemnification; Insurance. (a) The articles of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect relating to indemnification, advancement exculpation and the liability of expenses directors and exculpation contained officers no less favorable than such provisions included in the Parent Certificate Company Charter Documents as of Incorporation the date hereof and Parent Bylaws the Surviving Corporation shall not be amendedamend, repealed repeal or otherwise modified modify such provisions for a period of at least six (6) years after the Effective Time in any manner that would affect adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnificationindividuals who, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise were directors, officers, employees, fiduciaries or agents of Company or any of its Subsidiaries, except as required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)Law.
(b) From and after After the Effective Time and until Time, the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Surviving Corporation shall indemnify, defend indemnify and hold harmless and provide advancement of expenses to each person who, as of the Effective Time, is a present or former director or officer of Company, in and former officers directors to the extent of CPT, Inuvo their capacities as such and their respective Subsidiaries not as securityholders (collectively, together with their respective heirsthe "INDEMNIFIED PARTIES"), executors and administrators, the “Indemnified Directors and Officers”) against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, expenses (including reasonable attorneys’ fees liabilities and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or settlement amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding (whether arising before or investigationafter the Effective Time), whether civil, criminal, administrative or investigative and including all appeals thereof investigative, arising out of or pertaining to which any Indemnified Directors and Officers is action or may become a party to by virtue omission in their capacity as an officer, director, fiduciary or agent of his or her service as a present or former director or officer of CPT, Inuvo Company or any of their respective its Subsidiaries, and arising out of actual occurring on or alleged events, actions or omissions occurring or alleged to have occurred at or prior to before the Effective Time, in each case to the fullest same extent permitted by applicable Lawas provided in the Company Charter Documents as of the date hereof.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent the Surviving Corporation shall maintain in effect Company's current directors' and officers' liability insurance ("D&O INSURANCE") in respect of acts or omissions occurring on or before the indemnificationEffective Time, exculpation on terms and advancement conditions no less favorable to the Indemnified Parties than those of expenses provisions the D&O Insurance in effect on the date of CPT Certificate this Agreement (which Company represents and warrants are set forth in Section 5.9(c) of Incorporationthe Company Disclosure Letter); provided, CPT Bylawshowever, Inuvo Articles that in satisfying its obligations under this Section 5.9(c), the Surviving Corporation shall not be obligated to pay annual premiums in excess of Incorporation 400% of the amount paid by Company for coverage for its last full fiscal year; provided, however, that, if equivalent coverage cannot be obtained or Inuvo Bylaws can be obtained only by paying aggregate premiums in excess of 400% of such amount, the Surviving Corporation shall only be required to maintain as much coverage as can be obtained by paying aggregate premiums equal to 400% of such amount. Notwithstanding the foregoing and in lieu of all obligations of the Surviving Corporation under the first sentence of this Section 5.9(c), Parent or, at Parent's written direction, Company, may purchase a "tail" policy of directors and officers liability insurance covering a period of six years after the Effective Time, which policy (i) shall be on terms and conditions no less favorable to the Indemnified Parties than those of the D&O Insurance in effect on the date of this Agreement and be written by a carrier with the same or better rating as the carrier of the D&O Insurance as of the date of this Agreement, (ii) shall be prepaid and non-cancelable, and (iii) shall have aggregate premiums not in excess of 400% of the aggregate annual amounts paid by Company for coverage for its last full fiscal year; provided, however, that, if equivalent coverage cannot be obtained or can be obtained only by paying aggregate premiums in excess of 400% of such amount, Parent or Company shall obtain (and the organizational documents of CPT’s and Inuvo’s SubsidiariesSurviving Corporation shall only be required to maintain) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not as much coverage as can be obtained by paying aggregate premiums equal to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder 400% of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofamount.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and 5.9 is intended to be for the benefit of, and shall be enforceable by, by the Indemnified Parties referred and their heirs and personal representatives and shall be binding on Parent and the Surviving Corporation and their respective successors and assigns, and shall be in addition to, and not in substitution for, any other rights to herein.
(f) If indemnification or contribution that any such Person may have by contract or otherwise. On and after the Effective Time, the obligations of Parent under Section 5.9 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party under Section 5.9 without the consent of such affected Indemnified Party. In the event Parent or any of the Surviving Corporation or its respective successors successor or assigns assign (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in 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 case, to the extent necessary, proper provision shall be made so that the successors successor and assigns assign of Parent or the Parent shall assume Surviving Corporation, as the case may be, honor the obligations set forth with respect to Parent or the Surviving Corporation, as the case may be, in this Section 6.115.9.
Appears in 1 contract
Sources: Merger Agreement (Covansys Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnificationImplementation Documents will provide, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or among other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agreesthings, that the Company will maintain in effect all rights to indemnification, exculpation and advancement of expenses now indemnification existing in favor of any Indemnified Directors director, officer, employee or agent of the Company and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries its subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”"INDEMNIFIED PARTIES") as provided in CPT Certificate its certificate of Incorporationincorporation, CPT Bylawsby-laws or in indemnification agreements with the Company or any of its subsidiaries, Inuvo Articles all of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) which shall survive the Mergers consummation of the Acquisition and shall continue in full force and effect in accordance with their terms. For for a period of six not less than four years from the effective time of the Acquisition (6) years after the Effective Time"EFFECTIVE TIME"); PROVIDED, Parent shall maintain that in effect the indemnificationevent any claim or claims are asserted or made within such four-year period, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such all rights to indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any such claim or claims shall continue until final disposition of any and all such claims. It is understood and agreed that the Company shall advance, indemnify and hold harmless, as and to the full extent permitted by applicable law, each Indemnified Party against any losses, claims, damages liabilities, costs, expenses (including attorneys' fees and expenses), judgments, fines and amounts paid in settlement in connection with any threatened or actual claim, action, suit, proceeding or investigation pending or (whether asserted or claim made arising before or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to after the Effective Time). In addition, Parent, CPT and/or Inuvo the Implementation Documents will provide that the Company shall obtain “tail” insurance policies with a claims period of six (6) cause to be maintained in effect for not less than four years from the Effective Time any current policies of the directors' and officers' liability insurance maintained by the Company; PROVIDED, that the Company will be permitted to substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous and provided that such substitution shall not result in any gaps or lapses in coverage with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or matters occurring prior to the Effective Time at a cost Time; PROVIDED, FURTHER, that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 Company shall not be terminated or modified required to pay an annual premium in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent excess of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation 200% of the Mergers and is intended to be for last annual premium paid by the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, Company prior to the extent necessarydate hereof and if it is unable to obtain the insurance required, proper provision it shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.obtain as much comparable insurance as possible for an annual premium equal to such maximum amount
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Eurand shall indemnify, defend and hold harmless the present Warner, its directors, officers, employees, Affiliates and former officers directors of CPT, Inuvo and their respective Subsidiaries agents (collectively, together with their respective heirs, executors and administrators, the “Warner Indemnified Directors and OfficersParties”) harmless from and against all losses, claims, damages, losses, costs and expenses (including reasonable attorneys’ fees and including court costs) (collectively, “Losses”) incurred, assessed against or sustained by the Warner Indemnified Parties with respect to, or arising out of, any attorneys’ fees injury, claim or other fees incurred to enforce damage resulting from or caused by (i) any material falsity in or breach by Eurand, its employees, agents or subcontractors of its or their representations, warranties, covenants, agreements, or obligations under this Agreement; (ii) any negligence or willful misconduct by Eurand in the provisions performance of the activities hereunder; (iii) any Prototypes or Samples that are not made in accordance with the requirements PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, Agreement; and (iv) any third party patent infringement claims relating to Eurand’s use of Eurand Intellectual Property in connection with any claima Product pursuant to this Agreement.
(b) Warner shall indemnify, actiondefend and hold Eurand, suitits directors, Proceeding or investigationofficers, whether civilemployees, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective SubsidiariesAffiliates, and agents (the “Eurand Indemnified Parties”) harmless from and against all Losses incurred, assessed or sustained by the Eurand Indemnified Parties with respect to or arising out of actual an injury, claim or alleged eventsdamage to a third party resulting from or caused by (i) material falsity in or any breach by Warner of its representations, actions warranties, covenants or omissions occurring agreements hereunder, or alleged to have occurred at (ii) any negligence or prior to willful misconduct by Warner in the Effective Timeperformance of the activities hereunder, or (iii) any use of the results of the Services, or human studies conducted on the Samples or the use or labeling of the Prototypes or Samples or the handling or storage of the Prototypes or Samples other than in accordance with the instructions provided by Eurand, in each case to the fullest extent permitted by applicable Lawwhile in Warner’s custody or under its sole control.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns During (i) consolidates with or merges into the Term of this Agreement and any other Person extensions hereof and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers the term of all SOWs and any extensions thereof, Eurand shall acquire and maintain at its sole cost and expense no less than the following types and coverage minimums of insurance underwritten by one or conveys more insurers maintaining at least an A-, A.M. Best rating: (i) Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance; (ii) all risk coverage for physical loss or substantially all damage to materials including the Prototypes and Samples while in or under its control; and (iii) General Liability Insurance, including Products Liability, Bodily Injury and Property Damage Insurance with a combined single limit of not less than $5 million per incident. Eurand shall require its properties and assets to any Person, then, and in each casesubcontractors, to the extent necessaryapproved hereunder, proper provision to provide the aforementioned coverages and any other coverages that Eurand deems advisable. Upon request, Eurand shall be made so that provide Certificate(s) of Insurance to Warner evidencing the successors aforementioned coverages on behalf of itself and assigns of the Parent shall assume the obligations set forth in this Section 6.11its authorized subcontractors, if any.
Appears in 1 contract
Indemnification; Insurance. (a) By the Company. The provisions with respect to indemnificationCompany will defend, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present Distributor and former officers directors of CPTits affiliates, Inuvo directors, officers, employees and their respective Subsidiaries representatives (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersDistributor Indemnitees”) against all lossesfrom any demands, claims, damagescosts, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bfees), Liabilities liabilities or amounts that are paid in settlement oftosses (“Losses”) arising out of any third party suits, claims, actions, or otherwise, demands (“Claims”) that may be asserted against Distributor Indemnitees to the extent that the Claims result from or arise out of (i) the negligence or willful misconduct of the Company Indemnitees (as defined below) in connection with any claim, action, suit, Proceeding the manufacture or investigation, whether civil, criminal, administrative sale of the Products or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue (ii) the Company’s breach of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, this Agreement; except in each case to the fullest extent permitted that the Claims are subject to indemnification by applicable LawDistributor under Section 16(b). This provision is in addition to the indemnification provisions in the Continuing Guaranty.
(cb) Each of ParentBy Distributor. Distributor will defend, CPT indemnify and Inuvo agreeshold harmless the Company and its affiliates, that all rights to indemnificationdirectors, exculpation officers, employees and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo representatives (the “D&O InsuranceCompany Indemnitees”). Parent shall use commercially reasonable efforts ) from any Losses arising out of any Claims that may be asserted against the Company Indemnitees to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed extent that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries Claims result from or arise out of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates the negligence or willful misconduct of the Distributor Indemnitees in connection with or merges into any other Person the sale and shall not be distribution of the continuing or surviving corporation or entity of such consolidation or merger Products or (ii) transfers or conveys all or substantially all Distributor’s breach of its properties and assets to any Person, then, and this Agreement; except in each case, case to the extent necessary, proper provision shall be made so that the successors and assigns of Claims are subject to indemnification by the Parent shall assume Company under Section 16(a) or the obligations set forth in this Section 6.11Continuing Guaranty.
Appears in 1 contract
Sources: Distribution Services Agreement
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior Subject to the Effective Time were entitled to indemnificationprovisions of Section 3.3(c), advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From from and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Surviving Corporation shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the present and former officers directors date of CPTthis Agreement or who becomes prior to the Effective Time, Inuvo and their respective an officer, director or employee of Enviroq or any of its Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “"Indemnified Directors and Officers”Parties") against (i) all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees costs, expenses, liabilities or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities judgments or amounts that are paid in settlement of, or otherwise, with the approval of the indemnifying party (which approval shall not be unreasonably withheld) in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative investigation based in whole or investigative and including all appeals thereof to which any Indemnified Directors and Officers in part on or arising in whole or in part out of the fact that such person is or may become was a party to by virtue director, officer or employee of his or her service as a present or former director or officer of CPT, Inuvo Enviroq or any of their respective Subsidiariesits Subsidiaries ("Indemnified Liabilities"), and arising out of actual pertaining to any matter existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective TimeTime and whether asserted or claimed prior to, or at or after, the Effective Time and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby, in each case to the fullest full extent a corporation is permitted under the laws of its state of incorporation to indemnify its own directors, officers and employees, as the case may be (and the Surviving Corporation will pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by applicable Law.
(c) Each of Parentlaw). Without limiting the foregoing, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and event any such indemnification agreements of CPTclaim, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending is brought against any Indemnified Party (whether arising before or asserted or claim made or threatened within such period shall continue until after the final disposition or resolution thereof.
Effective Time), (di) Prior the Indemnified Party may retain counsel satisfactory to it and Enviroq (or, after the Effective Time, Parentthe Surviving Corporation), CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6ii) years from Enviroq (or, after the Effective Time Time, the Surviving Corporation) will pay all reasonable fees and expenses of such counsel for the Indemnified Party promptly as statements therefor are received, and (iii) Enviroq (or, after the Effective Time, the Surviving Corporation) will use all reasonable efforts to assist in the vigorous defense of any such matter, provided that neither Enviroq nor, after the Effective Time, the Surviving Corporation shall be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 3.3 upon learning of any such claim, action, suit, proceeding or investigation, shall notify Enviroq or, after the Effective Time, the Surviving Corporation (but the failure so to notify an indemnifying party shall not relieve it from any liability which it may have under this Section 3.3, except to the extent such failure prejudices such party), and shall, to the extent required by the laws of the indemnifying party's state of incorporation, deliver to Enviroq (or, after the Effective Time, the Surviving Corporation) any undertaking required prior to payment of expenses in advance of final disposition. The Indemnified Parties as a group may retain only one law firm to represent them with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for each such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition tomatter unless there is, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Lawstandards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries provisions of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is 3.3 are intended to be for the benefit of, and shall be enforceable by, the each Indemnified Parties referred to hereinParty and his or her heirs and representatives.
(fb) If Subject to the Parent provisions of Section 3.3(c), for six (6) years after the Effective Time, the Surviving Corporation shall use its good faith, best efforts to provide officers' and directors' liability insurance covering each director and employee of Enviroq who is currently covered by Enviroq's officers' and directors' liability insurance or any will be so covered at the Effective Time with respect to actions and omissions occurring at or prior to the Effective Time (the "Insured Parties"), on terms no less favorable than such insurance maintained in effect by Enviroq on the date hereof in terms of its respective successors or assigns (i) consolidates with or merges into any other Person coverage 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, thenamounts, and shall, as promptly as practicable after the Effective Time, furnish upon request evidence that such insurance has been purchased and paid in each case, full.
(c) Notwithstanding any obligation of this Section 3.3 to the extent necessarycontrary, proper provision the aggregate liability of the Surviving Corporation under this Section 3.3 shall be made so that an amount equal to the successors officer and assigns director trust liability reserve reflected on the Balance Sheet of Enviroq at the Parent shall assume the obligations set forth in this Section 6.11.time of Closing ("The Fund"
Appears in 1 contract
Indemnification; Insurance. (a) From and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless each person who is, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer, director or employee of the Company or any of its subsidiaries (collectively, the "Indemnified Parties" and individually, an "Indemnified Party") against all losses, liabilities, expenses (including attorneys' fees), claims or damages in connection with any claim, suit, action, proceeding or investigation based in whole or in part upon the fact that such Indemnified Party is or was a director, officer or employee of the Company or any of its subsidiaries and arising out of acts or omissions occurring prior to and including the Effective Time (including but not limited to the transactions contemplated by this Agreement) to the fullest extent permitted by Nevada law, for a period of not less than six years following the Effective Time; provided, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until final disposition of any and all such claims.
(b) The provisions of the Surviving Corporation Articles of Incorporation with respect to indemnification, advancement of expenses indemnification and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons individuals who at any time prior to the Effective Time are or were entitled to indemnification, advancement current or former directors or officers of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) Company in respect of actions or omissions occurring at or prior to the Effective TimeTime (including, without limitation, the transactions contemplated by this Agreement), unless otherwise such modification is required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)law.
(bc) Prior to the Closing Date, the Company shall obtain a tail insurance policy (the "Company D & O Liability Insurance Tail") covering the directors and officers for acts or failures to act prior to the Effective Time, and having substantially the same coverage and deductibles as the Company's directors' and officers' liability insurance policy as in effect on July 1, 1997.
(d) From and after the Effective Time and until Time, no Indemnified Party shall be liable to Gaming, EAS or the expiration Surviving Corporation (or anyone claiming rights through any of them, including ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇) for breach of any applicable statutes of limitation of the underlying claim representations, warranties, covenants or agreements contained in this Agreement. It is the express understanding of the parties that the sole remedy of Gaming and EAS under this Agreement (or anyone claiming rights under this Agreement through Gaming or EAS) in the event of a breach or alleged breach by the Company of its representations, warranties, covenants or agreements), shall be to which refuse to consummate the indemnification relatesElsinore Merger, Parent shall indemnifysubject, defend however, to Gaming's rights under Article VI hereof.
(e) This Section 4.6 is intended to benefit the Indemnified Parties and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit ofpersonal representatives, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that binding on the successors and assigns of the Parent shall assume Company and the obligations set forth in this Section 6.11Surviving Corporation.
Appears in 1 contract
Sources: Merger Agreement (Elsinore Corp)
Indemnification; Insurance. (a) Rio Bravo U.S. shall, and, from and after the Closing Date, Novamex and Rio Bravo U.S. shall, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Closing Date, an officer or director of Rio Bravo U.S. or any of its Subsidiaries (the "Indemnified Parties") against (i) all losses, claims, damages, costs, expenses, liabilities or judgments, or amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of, or in connection with, any claim, action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that such person is or was a director or officer of Rio Bravo U.S. or any of its Subsidiaries, whether pertaining to any matter existing or occurring at or prior to the Closing Date and whether asserted or claimed prior to, or at or after, the Closing Date ("Indemnified Liabilities") and (ii) all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to this Agreement or the transactions contemplated hereby or thereby, in each case to the full extent a corporation is permitted under Nevada or Texas law (notwithstanding the By-laws of Rio Bravo U.S. or Novamex) to indemnify its own directors, officers and employees, as the case may be (and Rio Bravo U.S. or Novamex, as the case may be, shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the full extent permitted by law). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising before or after the Closing Date), (i) the Indemnified Parties shall give prompt notice of such to Novamex and Rio Bravo U.S. describing such claim in reasonable detail, (ii) Novamex (or, as the case may be, Rio Bravo U.S.) shall have the right to assume the defense of such claim at its expense by giving written notice to the Indemnified Party, (iii) the Indemnified Party may participate, at its own expense, in the defense of any such claim as to which Novamex (or Rio Bravo U.S.) has elected to assume the defense, with counsel of its own choosing or in the event Novamex (or Rio Bravo U.S.) does not elect to assume the defense of such claim the Indemnified Party may retain counsel to defend such claim with the consent of Novamex (or Rio Bravo U.S.) which consent may not be unreasonably withheld or delayed, (iv) in the event Novamex (or Rio Bravo U.S.) does not elect to assume the defense of such claim, Rio Bravo U.S. (or, after the Closing Date, Novamex and Rio Bravo U.S.) shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received; provided, however, that (A) neither Rio Bravo U.S. nor Novamex shall be liable for any settlement of any claim effected without its written consent, which consent, however, shall not be unreasonably withheld and (B) the foregoing indemnity shall not extend to claims by Novamex against any of the Indemnified Parties pursuant to Article IX. Any Indemnified Party wishing to claim indemnification under this Section 6.11, upon learning of any such claim, action, suit, proceeding or investigation, shall notify Rio Bravo U.S. and Novamex (but the failure so to notify shall not relieve Rio Bravo U.S. or Novamex from any liability which it may have under this Section 6.11, except to the extent such failure materially prejudices such party). The provisions Indemnified Parties as a group may retain only one law firm to represent them with respect to indemnificationeach such matter, advancement unless there is, under applicable standards of expenses professional conduct, a conflict on any significant issue between the positions of any two (2) or more Indemnified Parties. The provisions of the Certificate of Formation and the By-laws of Rio Bravo U.S. with respect to indemnification and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws from liability shall not be amended, repealed or otherwise modified for a period of six two (62) years after from the Effective Time Closing Date in any manner that would adversely affect the rights thereunder of the persons individuals who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at on or prior to the Effective TimeClosing Date were directors or officers of Rio Bravo U.S., unless otherwise such modification is required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)law.
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the The provisions of this Section 6.11(b), Liabilities or amounts that 6.11 are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the each Indemnified Parties referred to hereinParty and his or her heirs and representatives.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnificationLek's Indemnity Obligations. Except as set forth in Section 12(d) below, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall Lek will indemnify, defend and hold harmless the present POZEN and former officers directors of CPTits affiliates and Licensees, Inuvo and their respective Subsidiaries successors and permitted assigns (collectivelyand the respective officers, together with their respective heirsdirectors, executors stockholders, partners and administratorsemployees of each), the “Indemnified Directors from and Officers”) against any and all losses, liabilities, claims, damagesactions, proceedings, damages and expenses (including without limitation reasonable attorneys’ ' fees and including expenses) (herein "Damages") resulting from any attorneys’ fees third party claims or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and suits arising out of actual (i) any breach by Lek of any warranty, representation, covenant or alleged eventsobligation hereunder, actions (ii) a claim that the manufacturing process used to manufacture the Product infringes the intellectual property rights of a third party in the ********, and such other countries as may be included within clause (ii) of the Limited Warranty in Section 6(a) with agreement between the parties as provided in Section 6(b), or omissions occurring or alleged (iii) product liability claims relating to have occurred at or prior Product supplied by Lek hereunder to the Effective Time, in each case extent such claims arise out of a failure of the Product to conform to the fullest extent permitted by applicable LawProduct Warranties.
(cb) Each of ParentPOZEN's Indemnity Obligations. Except as set forth in Section 12(d) below, CPT POZEN will indemnify, defend and Inuvo agreeshold harmless Lek and its affiliates, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors successors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws permitted assigns (and the organizational documents respective officers, directors, stockholders, partners and employees of CPT’s each) from and Inuvo’s Subsidiaries) now in effect and against any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect Damages resulting from any third party claims or suits arising out of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with any breach by POZEN of any warranty, representation, covenant or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or obligation hereunder, (ii) transfers a claim that the manufacture, marketing, use, distribution or conveys all sale of Finished Products (other than the manufacturing process used to manufacture the Product contained therein) infringes the intellectual property rights of a third party, or substantially all of (iii) product liability claims relating to Finished Product sold or distributed by POZEN or its properties and assets to any Person, then, and in each case, Licensees (except to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Lek is obligated to indemnify POZEN pursuant to Section 6.1112(a)).
Appears in 1 contract
Indemnification; Insurance. The Company shall indemnify and hold harmless each of WIC, its affiliates, and their respective directors, officers, partners, members, controlling persons (a) The provisions with respect to indemnification, advancement within the meaning of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder Section 15 of the persons who at Securities Act of 1933 or Section 20(a) of the Securities Exchange Act of 1934), if any, agents and employees (collectively referred to as "Indemnified Persons" and individually as an "Indemnified Person") from and against any time prior and all claims, liabilities, losses, damages and expenses incurred by any Indemnified Person (excluding those resulting from the gross negligence or willful misconduct of the Indemnified Person) and fees and disbursements of the respective Indemnified Person's counsel) which (i) are related to or arise out of (A) actions taken or omitted to be taken (including any untrue statements made or any statements omitted to be made) by the Effective Time were entitled Company or any of its subsidiaries or (B) actions taken or omitted to indemnification, advancement be taken by an Indemnified Person with the Company's or any of expenses its subsidiaries' consent or exculpation under in conformity with the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, Company's or any such subsidiaries' instructions or the Inuvo Bylaws (Company's or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of any such subsidiaries' actions or omissions occurring at or prior (ii) are otherwise related to the Effective Timeor arise out of WIC's engagement hereunder, unless otherwise required by applicable Law (and provided that will reimburse each Indemnified Person for all rights of indemnificationcosts and expenses, advancement of expenses and exculpation in respect including fees of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relatesIndemnified Person's counsel, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that as they are paid in settlement of, or otherwiseincurred, in connection with investigating, preparing for, defending, or appealing any action, formal or informal claim, investigation, inquiry or other proceeding, whether or not in connection with pending or threatened litigation, caused by or arising out of or in connection with WIC's acting pursuant to the engagement hereunder, whether or not any Indemnified Person is named as a party thereto and whether or not any liability results therefrom. The Company will not however, be responsible for any claims, liabilities, losses, damages, or expenses pursuant to clause (ii) of the preceding sentence that have resulted primarily from WIC's gross negligence or willful misconduct. The Company also agrees that neither WIC nor any other Indemnified Person shall have any liability to the Company or any of its subsidiaries for or in connection with such engagement except for any claims, liabilities, losses, damages, or expenses incurred by the Company or any such subsidiary to the extent the same have resulted from WIC's gross negligence or willful misconduct. The Company further agrees that it will not, and the Company will cause its subsidiaries to not, without the prior written consent of WIC, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit, Proceeding suit or investigation, proceeding in respect of which indemnification may be sought hereunder (whether civil, criminal, administrative or investigative and including all appeals thereof to which not any Indemnified Directors and Officers Person is an actual or may become a potential party to by virtue such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, WIC and each other Indemnified Person hereunder from all liability arising out of actual such claim, action, suit or alleged events, actions proceeding. The foregoing right to indemnity shall be in addition to any rights that WIC and/or any other Indemnified Person may have at common law or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers otherwise and shall continue remain in full force and effect in accordance with their terms. For a period of six (6) years after following the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo completion or any termination of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Lawengagement. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit ofCompany hereby consents, and shall cause its subsidiaries to consent, to personal jurisdiction and to service and venue in any court in which any claim which is subject to this agreement is brought against WIC or any other Indemnified Person. It is understood that, in connection with WIC's engagement, WIC may also be enforceable by, engaged to act for the Indemnified Parties referred to herein.
(f) If the Parent Company or any of its respective successors subsidiaries in one or assigns (imore additional capacities, and that the terms of this engagement or any such additional engagement may be embodied in one or more separate written agreements. Unless such additional engagement is undertaken with respect to a matter that is the subject of another written agreement that contains a specific provision(s) consolidates dealing with indemnification of WIC, this indemnification shall apply to the engagement specified in Section 1 hereof as well as to any such additional engagement(s) and any modification of said engagement or merges into any other Person such additional engagement(s) and shall not be remain in full force and effect following the continuing completion or surviving corporation termination of said engagement 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 case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11additional engagements.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement From and until the sixth anniversary of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect Time, Parent shall cause the rights thereunder Surviving Corporation to comply with all obligations of the persons Company in existence or in effect as of the date hereof, under applicable Regulations, its Articles of Incorporation, bylaws or by contract, to indemnify, defend and hold harmless, and also advance expenses as incurred, to the fullest extent permitted under applicable Regulations to, each Person who at any time is now or has been prior to the date hereof or who becomes prior to the Effective Time were entitled an officer or director of the Company or any Subsidiary of the Company (the “Indemnified Officers”) against all Losses arising out of or in connection with any Action based in whole or in part on or arising in whole or in part out of the fact that such Person is or was an officer or director of the Company or a Subsidiary of the Company, whether or not pertaining to indemnification, advancement of expenses any matter existing or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time and whether or not asserted or claimed prior to, at or after the Effective Time. The parties hereto intend, unless otherwise required to the extent not prohibited by applicable Law (law, that the indemnification provided for in this Section 5.7 shall apply without limitation to acts or omissions, other than illegal acts or acts of fraud, or alleged acts or omissions, other than illegal acts or acts of fraud, by the Indemnified Officers in their capacities as officers or directors, as the case may be, Parent hereby guarantees the payment and provided that all performance of the Surviving Corporation’s obligations in this Section 5.7. Each Indemnified Officer, and his or her heirs and legal representatives, is intended to be a third party beneficiary of this Section 5.7 and may specifically enforce its terms. This Section 5.7 shall not limit or otherwise adversely affect any rights any Indemnified Officer may have under any agreement with the Company or any Subsidiary of indemnification, advancement of expenses and exculpation in respect of the Company or under the Company’s or any claim asserted or made within such six-year period shall continue until the final disposition of such claim)Subsidiary’s organizational documents.
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall cause the Surviving Corporation and the Subsidiaries to procure, pay for and maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance or other insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts covering those Persons who are currently covered by the Company’s or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a any Subsidiary’s directors’ and officers’ liability policy insurer reasonably acceptable insurance at least to CPT the same extent as such directors and Inuvo (officers are currently covered. Every Person who is a director or officer of the “D&O Insurance”). Parent Company or a Subsidiary immediately prior to the Effective Time shall use commercially reasonable efforts to obtain competitive quotes (from be a named insured party on such policies of directors’ and officers’ liability insurance providers with comparable ratings) for such six year period following the Effective Time. The Company shall have the authority prior to the Closing to procure on behalf of the Surviving Corporation such directors’ and officers’ liability insurance coverage in an effort to reduce take effect as of the cost thereofEffective Time, and the Surviving Corporation shall be responsible for all costs relating to such insurance.
(ec) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under In the CPT Certificate of Incorporation, event Parent or the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in 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 case, to (A) if the extent necessarysuccessors and assigns of Parent or the Surviving Corporation are Related Parties, proper provision shall be made so that the successors and assigns of Parent or the Parent shall Surviving Corporation, as the case may be, assume the indemnification and other obligations set forth in this Section 6.115.7, or (B) if the successors and assigns of Parent or the Surviving Corporation are not Related Parties, Parent shall use commercially reasonable efforts to cause such successors and assigns to assume the indemnification and other obligations set forth in this Section 5.7.
Appears in 1 contract
Sources: Merger Agreement (Sito Mobile, Ltd.)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses Buyer and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, Subsidiary agree that all rights to indemnification, exculpation and advancement of expenses now indemnification by Company existing in favor of any Indemnified Directors each present and Officers or any current or former employee director of CPT, Inuvo or any of their respective Subsidiaries Company (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “"Company Indemnified Parties”") as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Company's Articles of Incorporation or Inuvo Bylaws (or and By-Laws on the organizational documents of CPT’s or Inuvo’s Subsidiaries) date hereof shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms. For for a period of six (6) four years after from the Effective TimeDate. Without limiting the foregoing, Parent shall maintain in effect the indemnificationevent that any claim, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending is brought against any Company Indemnified Party, the Surviving Corporation shall have the right to assume the defense of any such action or asserted proceeding (using counsel reasonably satisfactory to the Company Indemnified Party) and to settle, in its sole discretion, any such action or proceeding. Neither Buyer nor the Surviving Corporation shall be liable for any settlement of any claim made effected without its written consent. Subject to the foregoing, upon assumption by the Surviving Corporation of the defense of any such action or threatened within proceeding, the Company Indemnified Party may participate in such period defense, but neither the Surviving Corporation nor Buyer shall continue until have any liability to the final disposition Company Indemnified Party for any legal fees or resolution thereofexpenses subsequently incurred by the Company Indemnified Party in connection with such defense. Any Company Indemnified Party wishing to claim indemnification under this Section 4.16(a), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the Surviving Corporation of the same (but the failure to so notify the Surviving Corporation shall not relieve it or Buyer from any liability which it may have under this Section 4.16(a) except to the extent that such failure prejudices the Surviving Corporation or Buyer).
(db) Prior to For a period of three years after the Effective TimeDate, Parent, CPT and/or Inuvo Buyer shall obtain “tail” cause to be maintained officers' and directors' liability insurance covering the Company's existing officers and directors who are currently covered in such capacities by Company's existing officers' and directors' liability insurance policies with a claims period of six (6) years from the Effective Time with respect on terms substantially no less advantageous to directors’ such officers and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events directors than such existing insurance; provided, however, that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 Buyer shall not be terminated required in order to maintain or modified procure such coverage to pay an annual premium in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without excess of two times the consent current annual premium paid by Company for its existing coverage (the "D&O Cap") and provided further that if equivalent coverage cannot be obtained, or can be obtained only by paying an annual premium in excess of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties amount, Buyer shall only be required to whom this Section 6.11 applies and their respective heirs, successors and assigns shall obtain as much coverage as can be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, obtained by paying an annual premium equal to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11D&O Cap.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time Closing, Sonoma and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relatesGreystone shall, Parent shall jointly and severally, indemnify, defend and hold harmless harmless, and provide advancement of expenses to, the present current and former directors and officers directors of CPT, Inuvo Sonoma and their respective its Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Sonoma Indemnified Directors and OfficersParties”) against all losses, claims, damages, expenses and the current and former members of the Greystone Board and officers of Greystone and its Subsidiaries (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b“Greystone Indemnified Parties”), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law, including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors or any Sonoma Indemnified Party or Greystone Indemnified Party, from and against any and all costs or expenses (including attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur at or prior to the Closing (including for acts or omissions occurring in connection with the approval of this Agreement, the performance of Sonoma’s and Greystone’s obligations under this Agreement and the consummation of the Transactions or arising out of or pertaining to the Transactions) whether asserted or claimed prior to, at or after the Closing.
(cb) Each of Parent, CPT It is understood and Inuvo agrees, agreed that all rights to indemnification, expense advancement and exculpation and advancement of expenses now existing in favor of any Indemnified Directors each present and Officers or any current or former director, officer and employee of CPTSonoma, Inuvo Greystone or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporationthe Sonoma Charter, CPT Sonoma Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (Greystone LLC Operating Agreement or the charter or organizational documents of CPT’s the Subsidiaries of Sonoma or Inuvo’s Subsidiaries) shall Greystone, in each case as in effect on the date of this Agreement, or under any other agreements in effect on the date of this Agreement (true, correct and complete copies of which have been delivered, as applicable, by Sonoma and Greystone to Greystone and Sonoma, respectively), will survive the Mergers Transactions and shall Sonoma and Greystone will (i) continue in full force and effect in accordance with their terms. For for a period of at least six (6) years from the Closing Date (or, if any relevant claim is asserted or made within such six (6) year period, until final disposition of such claim) such rights to indemnification and (ii) perform, in a timely manner, Sonoma’s or Greystone’s or their respective Subsidiaries’ obligation with respect thereto. Any claims for indemnification pursuant to such agreements and organizational documents as to which Sonoma or Greystone has received written notice before the sixth (6th) anniversary of the Closing Date will survive, whether or not those claims will have been finally adjudicated or settled, and no action taken during such period may be deemed to diminish the obligations set forth in this Section 5.04(b).
(c) For at least six (6) years after the Effective TimeClosing, Parent Sonoma shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPTSonoma’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to current directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts respect of acts or events that occurred on omissions occurring at or prior to the Effective Time at a cost that is reasonable Closing (including for acts or omissions occurring in connection with the approval of this Agreement and customary for tail insurance policies with a the consummation of the Transactions) covering the Sonoma Indemnified Parties currently covered by Sonoma’s directors’ and officers’ liability insurance policy insurer reasonably acceptable (a true and complete copy of which has been heretofore made available to CPT Greystone), on terms with respect to such coverage and Inuvo (amount no less favorable than those of such policy in effect on the “D&O Insurance”). Parent shall use commercially reasonable efforts date of this Agreement; provided, however, that Sonoma may substitute therefor a tail policy or policies of Sonoma containing terms with respect to obtain competitive quotes (from insurance providers with comparable ratings) for coverage and amount no less favorable to such insurance coverage Sonoma Indemnified Parties; provided, further, however, that in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations satisfying its obligation under this Section 6.11 5.04(c) Sonoma shall not be terminated obligated to pay aggregate premiums in excess of three hundred percent (300%) of the amount paid by Sonoma in its last full policy year, it being understood and agreed that, in the event that the requisite coverage is not available for aggregate premiums less than or modified equal to three hundred percent (300%) of such prior year premium amount, Sonoma shall nevertheless be obligated to provide such coverage as may be obtained for such three hundred percent (300%) amount. The covenants contained in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is 5.04(c) are intended to be for the benefit of, and shall be enforceable by, each of the Sonoma Indemnified Parties referred to herein.
(f) If the Parent or any of its and their respective successors or assigns (i) consolidates with or merges into any other Person heirs and legal representatives, and shall not be deemed exclusive of any other rights to which a Sonoma Indemnified Party is entitled, whether pursuant to Law, contract or otherwise.
(d) For at least six (6) years after the continuing Closing, Greystone shall maintain (and Sonoma shall cause Greystone to maintain) in effect Greystone’s current directors’ and officers’ liability insurance in respect of acts or surviving corporation omissions occurring at or entity prior to the Closing (including for acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Transactions) covering the Greystone Indemnified Parties currently covered by Greystone’s directors’ and officers’ liability insurance policy (a true and complete copy of which has been heretofore made available to Sonoma), on terms with respect to such coverage and amount no less favorable than those of such consolidation policy in effect on the date of this Agreement; provided, however, that Sonoma may substitute therefor a tail policy or merger or policies of Greystone containing terms with respect to coverage and amount no less favorable to such Greystone Indemnified Parties; provided, further, however, that in satisfying its obligation under this Section 5.04(d) Sonoma shall not be obligated to pay aggregate premiums in excess of three hundred percent (ii300%) transfers or conveys all or substantially all of the amount paid by Greystone in its properties last full policy year, it being understood and assets to any Personagreed that, then, and in each case, to the extent necessary, proper provision shall be made so event that the successors and assigns requisite coverage is not available for aggregate premiums less than or equal to three hundred percent (300%) of the Parent such prior year premium amount, Sonoma shall assume the obligations set forth nevertheless be obligated to provide such coverage as may be obtained for such three hundred percent (300%) amount. The covenants contained in this Section 6.115.04(d) are intended to be for the benefit of, and shall be enforceable by, each of the Greystone Indemnified Parties and their respective heirs and legal representatives, and shall not be deemed exclusive of any other rights to which a Greystone Indemnified Party is entitled, whether pursuant to Law, contract or otherwise.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Skilled Healthcare Group, Inc.)
Indemnification; Insurance. 11.01 No later than the time when any Permitted Market products containing or using the Licensed Products are first being distributed, sold, or otherwise commercially exploited (aincluding for the purpose of obtaining regulatory approvals) by LICENSEE, LICENSEE and LICENSOR shall each, at their sole cost and expense, procure and maintain commercial general liability insurance, with a reputable insurance carrier reasonably acceptable to the other party, in amounts of not less than $2,000,000 per incident and $2,000,000 annual aggregate, and the other party shall have the other party’s Affiliates, and their officers, directors, affiliates, subsidiaries, employees, independent contractors and agents named as additional insureds. Such commercial general liability insurance shall provide (i) product liability coverage; (ii) broad form contractual liability coverage for indemnification under this Agreement; and (iii) coverage for litigation costs. The provisions minimum amounts of insurance coverage required shall not be construed to create a limit of LICENSEE’s or LICENSOR’s liability with respect to indemnificationits indemnification under this Agreement.
11.02 Each party shall provide the other party with written evidence of such insurance upon request. Each party shall provide the other party with written notice of at least thirty (30) days prior to cancellation, advancement non-renewal or material change in such insurance.
11.03 Each party shall maintain such commercial general liability insurance beyond the expiration or termination of expenses and exculpation contained in this Agreement during (i) the Parent Certificate of Incorporation and Parent Bylaws shall not be amendedperiod that any Licensed Patent Rights and/or Licensed Products provided pursuant to this Agreement are being commercially distributed, repealed sold or otherwise modified for a period of six exploited by LICENSEE; and (6ii) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws two (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries2) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of immediately after such claim)period.
(b) From 11.04 LICENSEE and after the Effective Time Affiliates of LICENSEE shall jointly and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relatesseverally defend, Parent shall indemnify, defend indemnify and hold harmless LICENSOR and the present Affiliates of LICENSOR, and former officers directors the officers, agents and employees of CPTLICENSOR and its Affiliates, Inuvo (collectively the "Indemnified Parties") from and their respective Subsidiaries (collectivelyagainst any and all liabilities, together with their respective heirsdamages, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damagessuits, proceedings, demands, recovery, costs and expenses (including including, without limitation, the reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions expenses of this Section 6.11(b)counsel, Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiarieslitigation expenses, and arising court costs) which arise out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition relate to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns : (i) consolidates with any breach by LICENSEE or merges into any other Person and shall not be the continuing Affiliate of LICENSEE of any representation, warranty 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 case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations covenant set forth in this Section 6.11Agreement; (ii) any defects in the footwear products in which the Licensed Products are embedded based on LICENSEE’s design or manufacturing of such footwear products; (iii) any third party claim that LICENSEE’s footwear products in which the Licensed Products are embedded infringe upon intellectual property rights of any third party; (iv) any warranty claims by third parties and consumers relating to the footwear products in which the Licensed Products are embedded.
Appears in 1 contract
Sources: License Agreement (GTX Corp)
Indemnification; Insurance. (a) From and after the Purchase Date, DCNA will indemnify and hold harmless each present and former director and officer of the Company and its Subsidiaries (the "Indemnified Parties"), against any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement (collectively, "Losses") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (an "Action"), by reason of the fact that such individual is or was a director, officer, employee or agent of the Company or any of its Subsidiaries, or is or was serving at the request of the Company or any of its Subsidiaries as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, arising out of or pertaining to or incurred in connection with acts or omissions, or alleged acts or omissions, by any of them in their capacity as such whether commenced, asserted or claimed before or after the purchase of Shares in the Offer and including, without limitation, any Losses incurred by any Indemnified Party in any way arising out of or relating to this Agreement or any transactions contemplated hereby, to the fullest extent permitted under applicable law, and DCNA shall also advance fees and expenses (including attorneys' fees) as incurred to the fullest extent permitted under applicable law. DCNA shall be entitled to control the defense of any Action with counsel of its own choosing reasonably acceptable to the Indemnified Party, and the Indemnified Party shall cooperate in the defense thereof; provided, however, that DCNA shall not settle or compromise any Action without the Indemnified Party's written consent (which consent shall not be unreasonably withheld or delayed).
(b) The Certificate of Incorporation of the Company shall, from and after the Purchase Date, and the Certificate of Incorporation of the Surviving Corporation shall, from and after the Effective Time, contain provisions no less favorable with respect to indemnification, advancement indemnification than are set forth as of expenses and exculpation contained the date of this Agreement in Section 6 of the Parent Certificate of Incorporation and Parent Bylaws of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after from the Effective Time Purchase Date in any manner that would adversely affect the rights thereunder of the persons individuals who at the Purchase Date were directors, officers or employees of the Company; provided that nothing contained herein shall limit DCNA's ability to merge the Company into DCNA or any time prior of its Subsidiaries or otherwise eliminate the Company's corporate existence; and provided further that in the event of a merger in which the Company is not the Surviving Corporation, the certificate of incorporation of the Surviving Corporation shall contain indemnity provisions substantially identical to Section 6 of the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, Incorporation of the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)Company.
(bc) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relatesNothing in this Agreement is intended to, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement ofbe construed to, or otherwiseshall release, in connection with waive or impair any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative rights to directors' and including all appeals thereof to which officers' insurance claims under any Indemnified Directors and Officers policy that is or may become a party has been in existence with respect to by virtue the Company or any of his or her service as a present or former director or officer of CPT, Inuvo its Subsidiaries or any of their respective Subsidiariesofficers, directors or employees, it being understood and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or agreed that the indemnification provided for in this Section 5.9 is not prior to or in substitution for any such claims under such
(d) For six years from the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent DCNA shall maintain in effect the indemnificationCompany's and its Subsidiaries' current directors' and officers' liability insurance policy (the "Policies") covering those persons who are currently covered by the Policies; provided, exculpation and advancement of expenses provisions of CPT Certificate of Incorporationhowever, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now that in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not no event shall DCNA be required to amend, repeal or otherwise modify such provisions expend in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in one year an amount in excess of 200% of the annual premiums currently paid by the Company and scope reasonably acceptable to CPT and Inuvo its Subsidiaries for claims arising from facts or events such insurance, and, provided, further, that occurred on or prior to if the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for annual premiums of such insurance coverage in an effort exceed such amount, DCNA shall be obligated to reduce obtain policies with the greatest coverage available for a cost thereofnot exceeding such amount; and provided, further, that DCNA may meet its obligations under this paragraph by covering the above persons under either DCAG's or DCNA's insurance policy on the terms described above that expressly provided coverage for any acts which are covered by the existing policies of the Company and its Subsidiaries.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, to any other rights such Indemnified Party may have under the CPT Certificate of IncorporationIncorporation or By-Laws of the Company or any Subsidiary, under the DGCL or otherwise. Notwithstanding anything to the contrary contained in this Agreement or otherwise, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries provisions of this Section 6.11). This Section 6.11 5.9 shall survive the consummation of the Mergers transactions contemplated by this Agreement, and is intended each Indemnified Party shall, for all purposes, be a third party beneficiary of the covenants and agreements of the Company contained in this Section 5.9 and, accordingly, shall be treated as a party to be this Agreement for purposes of the benefit of, rights and remedies relating to enforcement of such covenants and agreements and shall be enforceable by, the Indemnified Parties referred entitled to hereinenforce any such rights and exercise any such remedies directly.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect It is understood and agreed that, subject to indemnification, advancement of expenses and exculpation the limitations on indemnification contained in the Parent Delaware Act, the Company Certificate and other applicable law, the Company shall, to the fullest extent permitted under applicable law and regardless of Incorporation whether the Merger becomes effective, indemnify and Parent Bylaws hold harmless, and after the Effective Time, the Surviving Corporation shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to following the Effective Time, unless otherwise required by to the fullest extent permitted under applicable Law law, indemnify and hold harmless, each director and officer of the Company or any Subsidiary (and provided that all rights and, without limiting the generality of indemnificationthe foregoing, advancement of expenses and exculpation in respect as members of any claim asserted committee of the Board of Directors) on the date hereof or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after at the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirsthe "INDEMNIFIED PARTIES") from and against any costs or expenses (including reasonable attorneys' fees), executors and administratorsjudgments, the “Indemnified Directors and Officers”) against all fines, losses, claims, damages, expenses (including reasonable attorneys’ fees liabilities and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and investigation arising out of actual or alleged eventspertaining to any of the transactions contemplated hereby, actions including without limitation liabilities arising under the Securities Act or omissions occurring or alleged to have occurred at or prior to the Effective TimeExchange Act in connection with the Merger, and in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor event of any Indemnified Directors and Officers or any current or former employee of CPTsuch claim, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending (whether arising before or asserted after the Effective Time), (i) the Company or the Surviving Corporation shall pay the reasonable fees and expenses of not more than one (1) counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company or the Surviving Corporation, promptly as statements therefor are received, and (ii) the Company and the Surviving Corporation will cooperate in the defense of any such matter; PROVIDED, HOWEVER, that neither the Company nor the Surviving Corporation shall be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld or delayed). Notwithstanding anything to the contrary contained herein, Parent shall be entitled to assume the defense of any such matter and upon such assumption Parent shall not be liable to any Indemnified Party in connection with the defense thereof. Any Indemnified Party wishing to claim made indemnification under this Section 6.5 shall promptly notify Parent upon learning of any claim, action, suit, proceeding or threatened within such period investigation, provided that the failure to so notify shall continue until not affect the final disposition or resolution thereofobligations of Parent under this Section 6.5 except to the extent that Parent is prejudiced by any failure of an Indemnified Party to so notify Parent.
(db) Prior to For a period of six years following the Effective Time, Parent, CPT and/or Inuvo the Surviving Corporation shall maintain or obtain “tail” officers' and directors' liability insurance policies with a claims period of six (6) years from covering the Indemnified Parties who currently or at the Effective Time with respect to directors’ are covered by the Company's officers and officers’ directors liability insurance policies on terms not less favorable than those in an amount effect on the date hereof in terms of coverage and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events amounts; PROVIDED, HOWEVER, that occurred on or prior to if the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) aggregate annual premiums for such insurance at any time during such period exceed 150% of the premium paid by the Company for such insurance as of the date of this Agreement, then the Surviving Corporation shall provide the maximum coverage in that will then be available at an effort annual premium equal to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent 150% of such affected Indemnified Party (it being expressly agreed that per annum rate as of the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries date of this Section 6.11)Agreement. This Section 6.11 6.5 shall survive the consummation of the Mergers and Merger. Notwithstanding Section 9.7, this Section 6.5 is intended to be for the benefit of, of and shall be enforceable by, to grant third-party rights to the Indemnified Parties referred whether or not they are parties to this Agreement, and each of the Indemnified Parties shall be entitled to enforce the covenants contained herein.
(fc) If the Parent Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, then and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent Surviving Corporation shall assume the obligations set forth in this Section 6.116.5.
(d) Following the Effective Time, Parent and Surviving Corporation jointly and severally agree to pay all expenses, including reasonable attorney fees, that may be incurred by the Indemnified Parties in enforcing the indemnity and other obligations provided for in this Section 6.5 provided that it is ultimately determined that such Indemnified Party is entitled to be indemnified hereunder. Such fees shall be paid by the Parent or Surviving Corporation in advance of the final disposition of such action, suit or proceeding at the request of the Indemnified Party within twenty days after the receipt by Parent or Surviving Corporation of a statement or statements from the Indemnified Party requesting such advance or advances from time to time. Such statement or statements shall reasonably evidence the expenses and costs incurred by him in connection therewith and shall include or be accompanied by an undertaking by or on behalf of the Indemnified Party that he is entitled to receive indemnity pursuant to this Article VI and to repay such amount if it is ultimately determined that Indemnified Party is not entitled to be indemnified against such expenses and costs by the Parent or Surviving Corporation as provided by this Agreement.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect Time, the rights thereunder of Surviving Corporation shall indemnify and hold harmless to the persons fullest extent permitted under applicable law each person who is now, or has been at any time prior to the Effective Time were entitled to indemnificationdate hereof, advancement an officer, director, employee or agent of expenses the Company or exculpation under the CPT Certificate any of Incorporationits present or former subsidiaries or parent corporations (individually, an "Indemnified Party" and collectively, the CPT Bylaws"Indemnified Parties"), the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (liabilities, costs or expenses, including reasonable attorneys’ fees ' fees, judgments, fines, penalties and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of(collectively, or otherwise, "Losses") incurred by an Indemnified Party in connection with any claim, action, suit, Proceeding proceeding or investigationinvestigation (an "Action") in any way arising out of, pertaining to or resulting from acts or omissions, or alleged acts or omissions, by any of them in their capacities as such, whether civilcommenced, criminalasserted or claimed before or after the Effective Time and including, administrative or investigative and including all appeals thereof to which without limitation, any Losses incurred by any Indemnified Directors and Officers is Party in any way arising out of or may become a party relating to by virtue of his or her service as a present or former director or officer of CPTthis Agreement, Inuvo the Merger, or any of their respective Subsidiariesthe other transactions contemplated hereby. In the event of any such Action, (i) the Surviving Corporation shall pay on an as-incurred basis the reasonable fees and arising out expenses of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to counsel selected by the Effective Time, Indemnified Party in each case advance of the final disposition of any such Action to the fullest extent permitted by applicable Law.
law, upon receipt of any undertaking required by applicable law, and (cii) Each the Surviving Corporation shall cooperate in the defense of Parentany such matter at its own expense; PROVIDED, CPT and Inuvo agreesHOWEVER, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 Surviving Corporation shall not be terminated or modified in such a manner as to affect adversely liable for any Indemnified Party to whom this Section 6.11 applies settlement effected without the its written consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and which consent 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 case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11unreasonably withheld).
Appears in 1 contract
Sources: Recapitalization Agreement and Plan of Merger and Stock Purchase Agreement (Safelite Glass Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Section 12.01 Licensor shall indemnify, defend and hold harmless the present Licensee and former officers directors of CPTits Affiliates, Inuvo and their respective Subsidiaries officers, directors, members, managers, employees, agents, representatives, successors and assigns (collectivelyeach, together with their respective heirs, executors and administrators, the an “Indemnified Directors and OfficersIndemnitee”) against all damages, costs, expenses, interest (including prejudgment interest), losses, claims, damagesdemands, expenses (including liabilities, deficiencies and/or obligations, including, without limitation, reasonable attorneys’ fees and including disbursements of counsel (herein referred to, collectively, as “Damages”) arising out of or resulting from any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any third party claim, action, suit, Proceeding action or investigationproceeding related to, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged eventsresulting from Licensor’s breach of any representation, actions warranty, covenant, agreement or omissions occurring obligation under this License Agreement (each an “Action”).
Section 12.02 Licensor shall indemnify, defend and hold harmless each of the Indemnitees against all Damages arising out of, resulting from or alleged relating to any Action involving a claim that any manufacture, use, sale, offer for sale, distribution or importation of the Licensed IP or any Licensed Product in the Territory, or the exercise of any rights or privileges by Licensee granted to it under this License Agreement, infringes any patent or other intellectual property right of any third party; provided that, Licensor shall have occurred at no liability to Indemnitee with respect to any claim of infringement that is based solely upon (a) the combination of a Licensed Product with any other product or prior equipment not covered by the Licensed IP that is not reasonably anticipated by Licensor unless such combination is necessary to practice the Licensed IP and in such case, Licensor shall remain liable to the Effective TimeIndemnitee for such infringement; (b) the customization of a Licensed Product by Indemnitee or any other third party for another Person that is not reasonably anticipated by Licensor unless such customization is necessary to practice the Licensed IP and in such case, in each case Licensor shall remain liable to the fullest extent permitted by applicable Law.
Indemnitee for such infringement; and (c) Each the modification of Parenta Licensed Product by Indemnitee that is not authorized by Licensor and that is not reasonably anticipated by Licensor unless such modification is necessary to practice the Licensed IP and in such case, CPT and Inuvo agrees, that all rights Licensor shall remain liable to indemnification, exculpation and advancement the Indemnitee for such infringement.
Section 12.03 The Indemnitee shall within 30 days of expenses now existing such Indemnitee’s notice of such Action notify the indemnifying party in favor writing of any Indemnified Directors Action and Officers or any current or former employee cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of CPT, Inuvo or any the defense and investigation of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers Action and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope employ counsel reasonably acceptable to CPT Indemnitee to handle and Inuvo for claims arising from facts or events defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that occurred on or prior to adversely affects the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder any Indemnitee without the Indemnitee’s prior written consent, which shall not be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s unreasonably withheld or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Lawdelayed. The Indemnitee’s failure to perform any obligations under this Section 6.11 12.03 shall not relieve the indemnifying party of its obligation under this Section 12.03 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of the failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Section 12.04 Licensee shall, at all times during the Term and for five (5) years thereafter, obtain and maintain at its own expense the following types of insurance, with limits of liability not less than those specified below:
(a) Commercial general liability insurance against claims for bodily injury and property damage which shall include contractual coverage and product liability coverage, with limits of not less than $10,000,000 per occurrence and $20,000,000 in the aggregate; and
(b) Workers compensation and employers’ liability with limits to comply with the statutory requirements of the state(s) in which the License Agreement is to be performed. The policy shall include employers’ liability for not less than $5,000,000 per accident. Licensee shall deliver certificates of insurance evidencing coverage to Licensor promptly upon request after the execution of this License Agreement and upon reasonably request thereafter. All policies provided for herein shall expressly provide that such policies shall not be cancelled, terminated or modified altered without at least thirty (30) days prior written notice to the Licensee, and Licensee shall promptly notify the Licensor in such the event that a manner as to affect adversely policy provided for herein is cancelled, terminated or altered. Except for Damages resulting from the Licensor’s gross negligence or willful misconduct, or arising from a breach of the Licensor’s confidentiality obligations hereunder, the Licensor’s maximum liability for Damages arising out of or resulting from any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns Action hereunder shall be express third-party beneficiaries of this Section 6.11)$10,000,000 per occurrence and $20,000,000 in the aggregate. This Section 6.11 shall survive Except for Damages resulting from the consummation Licensor’s gross negligence or willful misconduct, or arising from a breach of the Mergers and is intended to Licensor’s confidentiality obligations hereunder, in no event shall Licensor be liable for any consequential, incidental, indirect, special, punitive or exemplary damages (including, without limitation, lost profits, business or goodwill) suffered or incurred by the benefit of, and Indemnitee. In no case shall Licensor be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or liable for any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns damages arising out of the Parent shall assume the obligations set forth in this Section 6.11Indemnitee’s gross negligence or willful misconduct.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions On the date of this Agreement, ADS shall cause to be delivered to the Stockholders Representative a written confirmation from National Union Fire Insurance Co. of Pittsburgh, Pa. ("National Union"), the liability insurance policy carrier of ADS, in which National Union confirms in writing that policy number ▇▇▇-▇▇-▇▇ is in full force and effect and that the Stockholders Representative and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall each be insured and covered persons under such insurance policy, subject to all applicable exclusions of the policy, with respect to indemnification, advancement the various shareholder class action lawsuits which have been filed against ADS prior to and as of expenses and exculpation contained the date of this Agreement or which in any way arise out of facts similar to those alleged in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner shareholder class actions that would adversely affect the rights thereunder have been filed as of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement date of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)this Agreement.
(b) From In addition to the provisions of paragraph 5(a) of this Agreement, ADS, Compec and after GTE (the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim "Indemnifying Parties") agree to which the indemnification relates, Parent shall indemnify, defend indemnify and hold harmless each of the present Stockholders Representative and former officers directors of CPTthe Additional Parties other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (the "Indemnified Parties") from any and all claims, Inuvo and their respective Subsidiaries (collectivelythreatened claims, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, liabilities and expenses (including including, without limitation, settlement costs and any reasonable attorneys’ legal, accounting and other expenses for investigating or defending any actions or threatened actions) asserted against or incurred by the Indemnified Parties, which relate directly and/or indirectly to the various shareholder class action lawsuits which have been filed against ADS prior to and as of the date of this Agreement or which in any way arise out of facts similar to those alleged in the shareholder class actions that have been filed as of the date of this Agreement or by reason of the fact that the Indemnified Parties were directors, officers, employees or agents of ADS, Compec and/or GTI, or were serving at the request of ADS, Compec or GTI as directors, officers, employees or agents of ADS, Compec, GTI and/or any other corporation, partnership, joint venture, trust or other enterprise. The right to indemnity in this paragraph 5(b) includes the right to advancement of fees and including any attorneys’ fees or other fees incurred to enforce the provisions expenses of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service defense as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Lawincurred.
(c) Each of ParentNotwithstanding anything to the contrary in this Agreement, CPT the indemnity and Inuvo agreeshold harmless provisions set forth in paragraph 5(b) shall not apply to any claims, threatened claims, losses, damages, liabilities and expenses (including, without limitation, 4 settlement costs and any reasonable legal, accounting and other expenses for investigating or defending any actions or threatened actions) asserted against or incurred by the Indemnified Parties, based primarily upon conduct that all rights to indemnification, exculpation and advancement of expenses now existing results in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or formal criminal charges being filed against any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties in the form of a federal indictment, a state court indictment, or a state court equivalent of an indictment; provided, however, that the indemnification obligation set forth in paragraph 5(b), including but not limited to the advancement of all legal fees and not to amendcosts, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner time as to affect adversely formal criminal charges are brought against any Indemnified Party and shall only be limited under this paragraph 5(c) as to whom this Section 6.11 applies without the consent of such affected particular Indemnified Party (it being expressly agreed that who is indicted and to any Indemnified Party who is granted immunity in connection with the indictment filed against another Indemnified Party. In the event such indictment results in a criminal conviction, then the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns Party who has been convicted or who has been granted immunity shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, return to the extent necessary, proper provision shall be made so Indemnifying Parties any amounts provided to or on behalf of that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11Indemnified Party pursuant to paragraph 5(b).
Appears in 1 contract
Sources: Settlement Agreement (Applied Digital Solutions Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification10.1 PPI shall defend, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend indemnify and hold harmless the present HGS, licensors of HGS and former officers directors each of CPT, Inuvo and their respective Subsidiaries (collectivelydirectors, together with their respective heirsofficers, executors shareholders, agents and administratorsemployees, the “Indemnified Directors from and Officers”) against any and all lossesliability, claimsloss, damages, costs and expenses, including reasonable attorneys' fees and expenses, (i) arising from or in connection with a breach by PPI of any of the representations and warranties contained in Section 9 hereof or (ii) resulting from claims, demands, costs or judgments which may be threatened, made or instituted against any of them arising out of the development manufacture, possession, distribution, use, testing, sale or other disposition of a PRODUCT by, on behalf of or through PPI or any THIRD PARTY granted rights by
10.2 HGS shall defend, indemnify and hold harmless PPI, licensors of PPI and each of their respective directors, officers, shareholders, agents and employees, from and against any and all liability, loss, damages, costs and expenses, including reasonable attorneys' fees and expenses, (i) arising from or in connection with a breach by HGS of any of the representations or warranties contained in Section 9 hereof, (ii) arising from or in connection with (A) any actual or threatened action, suit or proceeding, or (B) any other act or omission, in the case of either (A) or (B), by SB or any other THIRD PARTY in connection with or relating to the SB/HGS License Agreement or any other agreement to which SB (or its AFFILIATES) or any such THIRD PARTY (or its AFFILIATES), and HGS, are parties that relates to the subject matter of this Agreement, provided that in the case of (B), HGS' indemnification obligation under this Paragraph 10.2 shall (1) only apply if such act or omission has the direct or indirect effect of depriving PPI of any material benefit of this Agreement or impairs the right or ability of PPI or HGS to perform their respective obligations hereunder (any such act or omission which has such effect being referred to as a "SB ADVERSE EVENT") and (2) be limited to PPI's direct and indirect costs and expenses (including reasonable attorneys’ attorneys fees and expenses) incurred by PPI in connection with this Agreement, including without limitation the performance by PPI of its obligations hereunder, or (iii) resulting from claims, demands, costs or judgments which may be made or instituted against any attorneys’ fees of them arising out of the development, manufacture, possession, distribution, use, testing, sale or other fees incurred disposition of a PRODUCT by, on behalf of or through HGS or any THIRD PARTY granted rights by HGS (other than in connection with a suit or threatened suit covered by Section 6.6 hereof). HGS' obligation to enforce defend, indemnify and hold harmless shall include claims, demands, costs or judgments, whether for money damages or equitable relief by reason of alleged personal injury (including death) to any person or alleged property damage; provided, however, the indemnity shall not extend to any claim against an indemnified party to the extent such claim results from the gross negligence, willful misconduct or material breach of this Agreement of or by such indemnified party. HGS shall have the exclusive right to control the defense of any action which is to be indemnified in whole by HGS hereunder, including the right to select counsel reasonably acceptable to PPI to defend PPI and to settle such action; provided that, without the written consent of PPI (which shall not be unreasonably withheld or delayed), HGS shall not agree to settle any claim against PPI to the extent such claim has a material adverse effect on PPI. The provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) paragraph shall survive the Mergers and shall continue remain in full force and effect after any termination, expiration or cancellation of this Agreement and HGS' obligation hereunder shall apply whether or not such claims are rightfully brought. HGS shall require each of its sublicensees hereunder to agree to indemnify PPI in accordance a manner consistent with their termsthis Paragraph 10.2.
10.3 A person or entity that intends to claim indemnification under this Article 10 (the "Indemnitee") shall promptly notify the other party (the "Indemnitor") of any loss, claim, damage, liability, or action in respect of which the Indemnitee intends to claim such indemnification, and the Indemnitor, after it determines that indemnification is required of it, shall assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the fees and expenses to be paid by the Indemnitor, if Indemnitor does not assume the defense thereof; or, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. For The indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any loss, claim, damage, liability or action if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. The failure to deliver notice to the Indemnitor within a period of six (6) years reasonable time after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement commencement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements action shall relieve the Indemnitor of CPTany liability to the Indemnitee under this Article 10 solely to the extent the Indemnitor suffers material prejudice as a result of such failure, Inuvo or but failure to deliver notice to the Indemnitor will not relieve it of any of their respective Subsidiaries liability that it may have to any Indemnitee otherwise than under this Article 10. The Indemnitee under this Article 10, its employees and agents, shall cooperate fully with the Indemnified Parties Indemnitor and not to amend, repeal or otherwise modify such provisions its legal representatives in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect investigations of any action, suitclaim or liability covered by this indemnification. In the event that each party claims indemnity from the other and one party is finally held liable to indemnify the other, proceeding or investigation pending or asserted or the Indemnitor shall additionally be liable to pay the reasonable legal costs and attorneys' fees incurred by the Indemnitee in establishing its claim made or threatened within such period shall continue until the final disposition or resolution thereoffor indemnity.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo 10.4 The parties shall obtain “tail” maintain insurance policies with a claims period of six (6) years from the Effective Time coverage with respect to directors’ their activities and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that potential liabilities hereunder as is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereofcircumstances.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Sources: Collaboration Agreement (Praecis Pharmaceuticals Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms8.5.1. For a period of six (6) years after following the Effective TimeClosing, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (Company and the organizational documents Purchaser shall, and shall cause the Company’s Subsidiaries to, indemnify, defend and hold harmless, and also advance expenses as incurred, in each case, to the fullest extent permitted under Legal Requirements, to each Person who is now or has been prior to the date hereof or who becomes prior to the Closing an officer, director or manager (or their non-U.S. equivalent) of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo the Company or any of their respective its Subsidiaries (the “Indemnified Persons”) from and against all losses, claims, damages, costs, expenses (including counsel fees and expenses), settlement payments or liabilities arising out of or in connection with any claim, Proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that such Person is or was an officer, director or manager of the Company or any of its Subsidiaries, whether or not such claim, Proceeding or investigation, as applicable, is asserted or claimed prior to, at or after the Closing; provided, however, the Person to whom such expenses are advanced provides a customary unsecured undertaking to the Company to repay such advances if it is ultimately determined that such Person is not entitled to indemnification. The parties hereto intend, to the extent not prohibited by Legal Requirement, that the indemnification provided for in this Section 8.5 shall apply without limitation to acts or omissions, other than illegal acts or acts of fraud, or alleged acts or omissions, other than illegal acts or acts of fraud, by the Indemnified Parties Persons in their capacities as officers, directors or managers, as the case may be.
8.5.2. For a period of six (6) years following the Closing, the Purchaser shall not, and shall not permit the Company or its Subsidiaries to amend, repeal or otherwise modify such provisions any provision in any manner of their respective Organizational Documents, in each case relating to the exculpation or indemnification of any managers, officers and/or directors (unless required by applicable Legal Requirement), where such amendment results in coverage less favorable to the coverage offered to the managers, directors and officers on the date of this Agreement, it being the intent of the parties that would adversely the managers, officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification to the fullest extent of Legal Requirements.
8.5.3. The Purchaser and the Company hereby acknowledge that the Indemnified Persons may have certain rights to indemnification, advancement of expenses and/or insurance provided by the Equity Sponsors (the “Sponsor Indemnitors”). The Purchaser and the Company each hereby agrees, on behalf of itself and, in the case of the Company, its Subsidiaries, (i) that it is an indemnitor of first resort (i.e., its obligations to each of the Indemnified Persons are primary and any obligation of the Sponsor Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by or on behalf of any of the Indemnified Persons are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by or on behalf of each of the Indemnified Persons and shall be liable for the full amount of all Losses to the extent legally permitted and as required by the terms of this Agreement (or, to the extent applicable, its Organizational Documents), without regard to any rights such Indemnified Persons may have against the Sponsor Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Sponsor Indemnitors from any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof. The Purchaser and the Company each further agrees that no advancement or payment by the Sponsor Indemnitors on behalf of an Indemnified Person with respect to any claim for which an Indemnified Person has sought indemnification from the Purchaser, the Company or any of the Company’s Subsidiaries shall affect the rights thereunder foregoing. and the Sponsor 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 an Indemnified PartiesPerson against the Purchaser, the Company or any of the Company’s Subsidiaries. The Purchaser, the Company and each of the Indemnified Persons agrees that the Sponsor Indemnitors are express third party beneficiaries of the terms of this Section 8.5.3.
8.5.4. The Purchaser shall, and all such rights shall cause the Company to, cooperate, and cause each of their respective Affiliates to cooperate, in respect the defense of any actionclaim that is subject to limitation of liability, suitadvancement of expenses and/or indemnification as contemplated by this Section 8.5 or the Organizational Documents and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished Records, proceeding information and testimony, and attend such conferences, discovery proceedings, hearings, trials or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofappeals, as may be reasonably requested in connection therewith.
(d) Prior 8.5.5. The Purchaser shall cause the Company and its Subsidiaries to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with provide or maintain in effect for a claims period of six (6) years from and after the Effective Time with respect to directors’ and officers’ Closing Date, through the purchase of “run-off” coverage or otherwise, liability insurance covering those individuals who are covered by the liability insurance policy or policies provided for managers, directors and officers of the Company and the Company’s Subsidiaries as of the date hereof (the “Existing Policies”) on terms comparable and no less favorable in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior the aggregate in all respects to the Effective Time Existing Policies, and such coverage shall contain minimum aggregate limits of liability at least equal to that of the Existing Policies and deductibles no greater than those of the Existing Policies; provided, however, that if such “run-off” or other coverage is not available at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo not greater than three hundred percent (300%) of the annual premiums paid as of the date hereof under the Existing Policies (the “D&O InsuranceInsurance Cap”). Parent , then the Company and its Subsidiaries shall use commercially reasonable efforts be required to obtain competitive quotes (from insurance providers with comparable ratings) as much coverage as is possible under substantially similar policies for such insurance coverage in an effort to reduce annual premiums as do not exceed the cost thereofInsurance Cap.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under 8.5.6. In the CPT Certificate of Incorporationevent that the Purchaser, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Company or any of its Subsidiaries, or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in 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 case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume Purchaser or the Company, as the case may be, honor the indemnification and other obligations set forth in this Section 6.118.5.
8.5.7. The provisions of this Section 8.5 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his, her or its respective heirs and his or her respective 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 Legal Requirement, Contract or otherwise. The obligations of the Purchaser and the Company or any of its Subsidiaries under this Section 8.5 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person to whom this Section 8.5 applies without the consent of each affected Indemnified Person (it being expressly agreed that such Persons to whom this Section 8.5 applies shall be third party beneficiaries of this Section 8.5).
8.5.8. 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 or rights under any policy or Contract that is or has been in existence with respect to the Company or any of the Company’s Subsidiaries or any of their respective directors or officers, it being understood and agreed that the indemnification provided for in this Section 8.5 is not prior to or in substitution for any such claims under such policies or Contracts.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sensata Technologies Holding N.V.)
Indemnification; Insurance. (a) The provisions with respect to indemnification8.1. PROCARE shall, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From during and after the Effective Time and until the expiration term of any applicable statutes of limitation of the underlying claim to which the indemnification relatesthis Distribution Agreement, Parent shall indemnify, defend indemnify and hold BIOVAXYS and its affiliates harmless the present from and former officers directors against any and all claims, demands, causes of CPTaction, Inuvo and their respective Subsidiaries (collectivelyactions or suits, together with their respective heirsjudgements, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claimsdecrees, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees penalties or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement ofadverse actions by governmental bodies, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or liability whatsoever asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Timeentered against BIOVAXYS, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors affiliates, by or assigns (i) consolidates with on the behalf of, or merges into in favour of any other Person and shall not be person, firm or corporation arising out of the continuing sale or surviving corporation use of the PRODUCTS by BIOVAXYS or entity by any holder of such consolidation an item of the PRODUCTS which in its chain of distribution, came through or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each casefrom BIOVAXYS, to the extent attributable to (i) a gross negligent or intentionally harmful act or omission of the manufacturing of the PRODUCT and (ii) the breach of the warranty detailed in Clause 7.8 above.
8.2. BIOVAXYS shall hold PROCARE and its affiliates during and after the term of this Distribution Agreement harmless from and against any and all claims, demands, causes of action, actions or suits, judgements, decrees, damages, penalties or other adverse actions by governmental bodies, or any liability whatsoever asserted or entered against PROCARE or any of its affiliates by or on the behalf of, or in favour of any person, firm or corporation arising out of the sale or use of the PRODUCTS by BIOVAXYS or by any holder of an item of the PRODUCTS which in its chain of distribution, came through or from BIOVAXYS to the extent attributable to an act or omission of BIOVAXYS or its employees or agents in connection with the distribution, storage, promotion of the PRODUCTS or any OPERATIONS in the TERRITORY.
8.3. In order to cover possible risks in case of a product liability claim arising out of a sale of the PRODUCTS, as from the launch of the PRODUCT in the TERRITORY, both BIOVAXYS and PROCARE maintain adequate and sufficient product liability insurance cover and each Party shall supply the other Party with proof of such insurance cover.
8.4. Each Party shall promptly notify the other Party, in writing, of all customer complaints and all claims or actions asserted or threatened in respect of the PRODUCTS. Upon PROCARE’s request, and at PROCARE’s expense, BIOVAXYS shall render all reasonable assistance in the defence of any claim or action asserted or threatened in respect of the PRODUCTS, but PROCARE shall, at its election, have exclusive control over the defence and settlement (except in relation to claims regarding the OPERATIONS) and therefore and expenses will reside with PROCARE. Additionally, PROCARE shall render all reasonable assistance in the defence of any claim or action asserted or threatened in respect of the OPERATIONS, but BIOVAXYS shall, at its election, have exclusive control over the defence and settlement and therefore and expenses will reside with BIOVAXYS. For the sake of clarity, the Parties hereby represent that:
i. PROCARE shall be responsible for any and all claim derived from the manufacturing of the PRODUCT, and consequently shall maintain BIOVAXYS harmless from any claim derived therefrom, and
ii. BIOVAXYS shall be responsible for any and all claim derived from the OPERATIONS and consequently shall maintain PROCARE harmless from any claim derived therefrom.
8.5. BIOVAXYS agrees to transmit without any delay, i.e. at the latest five (5) working days after having been informed, any element affecting the quality of the delivered PRODUCTS and especially any return of information from customers to PROCARE, in writing. The reporting customers have to be informed by BIOVAXYS (with hardcopy to PROCARE) that, in case of near incidents which may be associated with the PRODUCTS, according to the European Guidelines on a medical device vigilance system MEDDEV 2.12/1 – latest revision, PROCARE has to forward this information to the competent authorities. Upon receipt of this information, PROCARE shall inform BIOVAXYS of the measures to undertake regarding the concerned products and, if necessary, proper provision shall advise the competent authorities.
8.6. If PROCARE by obligation of the relevant EU (CE) Authority, determine that in the interest of consumers protection the sale or use of any PRODUCTS in the TERRITORY should be temporarily or permanently discontinued, BIOVAXYS shall promptly take all actions as such relevant Authority may request to discontinue, or cause the discontinuance of, such sale or use and, at PROCARE’s election and expense, shall promptly return to PROCARE or its designee all of such PRODUCT in BIOVAXYS’s possession or control, at a resale price equal to the original purchase price paid therefore by BIOVAXYS. Any outstanding orders for such PRODUCT which may have previously been accepted by PROCARE shall be made so that the successors deemed cancelled upon such request by BIOVAXYS, and assigns PROCARE shall have no further liability to BIOVAXYS in respect of the Parent shall assume the obligations set forth in this Section 6.11such cancelled orders.
Appears in 1 contract
Sources: Distribution Agreement
Indemnification; Insurance. (a) The articles of incorporation and bylaws of the Surviving Corporation shall contain provisions with respect relating to indemnification, advancement exculpation and the liability of expenses directors and exculpation contained officers no less favorable than such provisions included in the Parent Certificate Company Charter Documents as of Incorporation the date hereof and Parent Bylaws the Surviving Corporation shall not be amendedamend, repealed repeal or otherwise modified modify such provisions for a period of at least six (6) years after the Effective Time in any manner that would affect adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnificationindividuals who, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise were directors, officers, employees, fiduciaries or agents of Company or any of its Subsidiaries, except as required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim)Law.
(b) From and after After the Effective Time and until Time, the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Surviving Corporation shall indemnify, defend indemnify and hold harmless and provide advancement of expenses to each person who, as of the Effective Time, is a present or former director or officer of Company, in and former officers directors to the extent of CPT, Inuvo their capacities as such and their respective Subsidiaries not as securityholders (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersParties”) ), against all costs and expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, expenses (including reasonable attorneys’ fees liabilities and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or settlement amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding (whether arising before or investigationafter the Effective Time), whether civil, criminal, administrative or investigative and including all appeals thereof investigative, arising out of or pertaining to which any Indemnified Directors and Officers is action or may become a party to by virtue omission in their capacity as an officer, director, fiduciary or agent of his or her service as a present or former director or officer of CPT, Inuvo Company or any of their respective its Subsidiaries, and arising out of actual occurring on or alleged events, actions or omissions occurring or alleged to have occurred at or prior to before the Effective Time, in each case to the fullest same extent permitted by applicable Lawas provided in the Company Charter Documents as of the date hereof.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent the Surviving Corporation shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPTCompany’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to current directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”) in respect of acts or omissions occurring on or before the Effective Time, on terms and conditions no less favorable to the Indemnified Parties than those of the D&O Insurance in effect on the date of this Agreement (which Company represents and warrants are set forth in Section 5.9(c) of the Company Disclosure Letter). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage ; provided, however, that in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The satisfying its obligations under this Section 6.11 5.9(c), the Surviving Corporation shall not be terminated obligated to pay annual premiums in excess of 400% of the amount paid by Company for coverage for its last full fiscal year; provided, however, that, if equivalent coverage cannot be obtained or modified can be obtained only by paying aggregate premiums in excess of 400% of such a manner amount, the Surviving Corporation shall only be required to maintain as much coverage as can be obtained by paying aggregate premiums equal to affect adversely any Indemnified Party to whom 400% of such amount. Notwithstanding the foregoing and in lieu of all obligations of the Surviving Corporation under the first sentence of this Section 6.11 applies without 5.9(c), Parent or, at Parent’s written direction, Company, may purchase a “tail” policy of directors and officers liability insurance covering a period of six years after the consent of such affected Indemnified Party Effective Time, which policy (it being expressly agreed that i) shall be on terms and conditions no less favorable to the Indemnified Parties to whom than those of the D&O Insurance in effect on the date of this Section 6.11 applies Agreement and their respective heirsbe written by a carrier with the same or better rating as the carrier of the D&O Insurance as of the date of this Agreement, successors and assigns (ii) shall be express thirdprepaid and non-party beneficiaries cancelable, and (iii) shall have aggregate premiums not in excess of this Section 6.11). 400% of the aggregate annual amounts paid by Company for coverage for its last full fiscal year; provided, however, that, if equivalent coverage cannot be obtained or can be obtained only by paying aggregate premiums in excess of 400% of such amount, Parent or Company shall obtain (and the Surviving Corporation shall only be required to maintain) as much coverage as can be obtained by paying aggregate premiums equal to 400% of such amount.
(d) This Section 6.11 shall survive the consummation of the Mergers and 5.9 is intended to be for the benefit of, and shall be enforceable by, by the Indemnified Parties referred and their heirs and personal representatives and shall be binding on Parent and the Surviving Corporation and their respective successors and assigns, and shall be in addition to, and not in substitution for, any other rights to herein.
(f) If indemnification or contribution that any such Person may have by contract or otherwise. On and after the Effective Time, the obligations of Parent under Section 5.9 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party under Section 5.9 without the consent of such affected Indemnified Party. In the event Parent or any of the Surviving Corporation or its respective successors successor or assigns assign (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in 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 case, to the extent necessary, proper provision shall be made so that the successors successor and assigns assign of Parent or the Parent shall assume Surviving Corporation, as the case may be, honor the obligations set forth with respect to Parent or the Surviving Corporation, as the case may be, in this Section 6.115.9.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for For a period of six (6) years after following the Effective Time in any manner that would adversely affect Time, Buyer shall cause the rights thereunder Surviving Corporation to comply with all obligations of the persons Company in existence or in effect as of the date hereof, under Applicable Law, the Constituent Documents and contracts, to indemnify, defend and hold harmless, and also advance expenses as incurred, to the fullest extent permitted under Applicable Law, the Constituent Documents and such contracts, to each person who at any time is now or has been prior to the date hereof or who becomes prior to the Effective Time were entitled to indemnification, advancement of expenses an officer or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation director of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries Company or any Company Subsidiary (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, costs, expenses (including reasonable attorneys’ including, without limitation, counsel fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bexpenses), settlement payments or Liabilities arising out of or amounts that are paid in settlement of, or otherwise, in connection with any claim, actiondemand, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending based in whole or in part on or arising in whole or in part out of the fact that such person is or was an officer or director of the Company or a Company Subsidiary, whether or not pertaining to any matter existing or occurring at or prior to the Effective Time and whether or not asserted or claim made claimed prior to, at or threatened within after the Effective Time. The parties hereto intend, to the extent not prohibited by Applicable Law, that the indemnification provided for in this Section 5.11 shall apply without limitation to acts or omissions, other than illegal acts or acts of fraud, or alleged acts or omissions, other than illegal acts or acts of fraud, by the Indemnified Officers in their capacities as officers or directors, as the case may be. Each Indemnified Officer, and his or her heirs and legal representatives, is intended to be a third party beneficiary of this Section 5.11 and may specifically enforce its terms. This Section 5.11 shall not limit or otherwise adversely affect any rights any Indemnified Officer may have under any agreement with the Company or any Company Subsidiary or under the Company’s or any such period shall continue until the final disposition or resolution thereofSubsidiary’s organizational documents.
(db) Prior to For a period of six years following the Effective Time, Parent, CPT and/or Inuvo Buyer shall obtain “tail” insurance cause the Surviving Corporation to maintain policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable covering each Indemnified Officer with respect to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time and providing at a cost least (i) $25,000,000 of liability coverage and (ii) the same coverage and amounts and containing terms that is reasonable and customary for tail insurance are not less advantageous to the insured parties than those contained in the policies with a of directors’ and officers’ liability policy insurer reasonably acceptable insurance in effect as of the date hereof for officers and directors of Buyer. Every person who is an officer or director of the Company immediately prior to CPT the Effective Time shall be a named insured party on such policies of directors’ and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from officers’ liability insurance providers with comparable ratings) for such insurance coverage in an effort to reduce six year period following the cost thereofEffective Time.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Sources: Merger Agreement (PQ Systems INC)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect Closing Date through the rights thereunder third anniversary of the persons who at any time prior Closing Date, SWB (the “Indemnifying Party”) agrees to the Effective Time were entitled to indemnificationindemnify and hold harmless each director, advancement officer and employee of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, Bancshares or the Inuvo Bylaws Bank, determined as of the Closing Date (the “Indemnified Parties”), against any costs or the applicable organizational documents expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of CPT’s and Inuvo’s Subsidiaries) in respect of actions matters existing or omissions occurring at or prior to the Effective TimeClosing Date, unless otherwise whether asserted or claimed prior to, at or after the Closing Date, only and to the fullest extent to which Bancshares or the Bank is or was required by applicable Law (law or their respective certificates of incorporation or bylaws to indemnify such Indemnified Parties and provided in the manner to which it could indemnify such parties under the certificates of incorporation or bylaws of Bancshares and the Bank, in each case as in effect on the date hereof, provided, however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration Any Indemnified Party wishing to claim indemnification under Section 7.6(a), upon learning of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any such claim, action, suit, Proceeding proceeding or investigation, whether civilshall promptly notify the Indemnifying Party thereof, criminal, administrative or investigative and including all appeals thereof but the failure to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 so notify shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without relieve the consent Agreement and Plan of such affected Indemnified Party Reorganization (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
May 2015) (fFinal Execution Copy) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.41
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Southwest Bancorp Inc)
Indemnification; Insurance. (a) The provisions with respect For a period of six years after the Closing Date, the Target Companies will, to indemnificationthe extent permitted by Applicable Law, advancement of expenses include and exculpation contained cause to be maintained in effect, in all material respects, in the Parent Certificate Organizational Documents of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified the Target Companies for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of IncorporationClosing Date, the CPT Bylawscurrent provisions regarding elimination of liability of directors, the Inuvo Articles indemnification of Incorporationofficers, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiariesdirectors, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation employees and advancement of expenses now existing contained in favor the applicable Organizational Documents of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable LawTarget Companies. The obligations of the Target Companies following the Closing under this Section 6.11 6.10(a) shall not be terminated or modified in such a manner as to adversely affect adversely any Indemnified Party director or officer to whom this Section 6.11 6.10(a) applies without the consent of such affected Indemnified Party (it being expressly agreed that director or officer. In the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent event any Target Company or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of Entity in such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any other Person, then, and in each either such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent Target Companies, as the case may be, shall assume the obligations set forth in of this Section 6.116.10(a).
(b) Prior to the Closing, the Target Companies will arrange through their current broker for the placement of a “tail” policy (the “D&O Tail Policy”) insuring the current officers and directors of the Target Companies under the same terms, conditions and exclusions as provided by or contained in the current primary directors’ and officers’ liability insurance, employment practices liability insurance and fiduciary liability insurance policies maintained as of the date hereof, and any renewals or replacements thereof maintained as of the Closing Date by or on behalf of the Target Companies, including any excess coverage maintained, which D&O Tail Policy shall provide coverage for a period of six years as of and from the Closing Date with respect to matters or circumstances occurring at or prior to the Closing Date. For the avoidance of doubt, the D&O Tail Policy shall be purchased at Parent’s expense and shall not be included as a liability in the calculation of Working Capital.
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect through the rights thereunder sixth anniversary of the persons who Effective Time, the Acquiror, in the case of an indemnification obligation of the Company, or the applicable Company Subsidiary or its successor by merger, in the case of an indemnification obligation of a Company Subsidiary (the Acquiror or such Company Subsidiary, as applicable, being referred to herein as the "Indemnifying Party") shall provide indemnification (including advancement of expenses, if applicable) to each present and former director, officer or employee of the Company or a Company Subsidiary and each officer or employee of the Company or its Subsidiaries that is serving or has served as a director or trustee of another entity expressly at any time prior to the Company's request or direction, in each case determined as of the Effective Time were entitled (the "Indemnified Parties"), with respect to indemnificationany costs or expenses (including reasonable attorneys' fees), advancement judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether, civil, criminal, administrative or investigative, arising out of expenses matters existing or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required (including the transactions contemplated by applicable Law this Agreement, including the entering into of the Company Stock Option Agreement), if first asserted or claimed prior to the date hereof and Previously Disclosed, if first asserted or claimed between the date hereof and the Effective Time and disclosed pursuant to Section 5.13 hereof or if first asserted or claimed after the Effective Time, to the fullest extent, if any, that such Indemnified Party, would have been entitled to indemnification or the advancement of expenses by the Company under Article X of its Certificate of Incorporation on the one hand or by the Bank under Article XII of its Bylaws on the other hand ("the Indemnification Rights"), as in effect on the date hereof and provided Previously Disclosed, provided, however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From , and after provided, further, that nothing contained herein shall enlarge the Effective Time and until rights to indemnification contained in the expiration Indemnification Rights or extend or be deemed a waiver of any applicable statutes statute of limitation limitations in respect of any claim or claim for indemnification. Without limiting the foregoing, the Acquiror also agrees that all limitations of liability existing in favor of the underlying claim to which Indemnified Parties in Article IX of the indemnification relatesCertificate of Incorporation of the Company, Parent shall indemnifyas in effect on the date hereof and Previously Disclosed, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual matters existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) Time shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms. For a period effect.
(b) Any Indemnified Party wishing to claim indemnification under Section 5.9(a), upon learning of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements claim, action, suit, proceeding or investigation, shall promptly notify the Indemnifying Party, but the failure to so notify shall not relieve the Indemnifying Party of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not liability it may have to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all Party if such rights in respect failure does not materially prejudice the Indemnifying Party. In the event of any such claim, action, suit, proceeding or investigation pending (whether arising before or asserted after the Effective Time), (i) the Indemnifying Party shall have the right to assume the defense thereof and the Indemnifying Party shall not be liable to such Indemnified Parties for any legal expenses of other counsel or claim made any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Indemnifying Party elects not to assume such defense or threatened within counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Indemnifying Party and the Indemnified Parties, the Indemnified Parties may retain counsel which is reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Parties (which may not exceed one firm in any jurisdiction unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest) in accordance with the obligations set forth in Section 5.9(a) hereof, (ii) the Indemnified Parties will cooperate in the defense of any such matter, (iii) the Indemnifying Party shall not be liable for any settlement effected without its prior written consent and (iv) the Indemnifying Party shall have no obligation hereunder in the event a federal banking agency or a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) The Acquiror shall maintain the Company's existing directors' and officers' liability insurance policy (or purchase an insurance policy providing coverage on substantially the same terms and conditions) for acts or omissions occurring prior to the Effective Time by persons who are currently covered by such insurance policy maintained by the Company for a period of six years following the Effective Time, provided, however, that in no event shall continue until the final disposition Acquiror be required to expend on an annual basis more than 125% of the amount paid by the Company as of the date hereof for such insurance coverage (the "Insurance Amount") to maintain or resolution thereofprocure such insurance coverage, and further provided that if the Acquiror is unable to maintain or obtain the insurance called for hereby, the Acquiror shall use all reasonable efforts to obtain as much comparable insurance as is available for the Insurance Amount. At the request of the Acquiror, the Company shall use reasonable efforts to procure the insurance coverage referred to in the preceding sentence prior to the Effective Time on the terms set forth in such sentence.
(d) Prior to In the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed event that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent Acquiror or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that such case the successors and assigns of the Parent such entity shall assume the obligations set forth in this Section 6.115.9, which obligations are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each director and officer covered hereby.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions Notwithstanding anything to the contrary in Section 2.04, Parent and Purchaser agree that all rights to indemnification existing in favor, and all limitations on the personal liability of, each present and former director, officer, employee or agent of the Company or any of its subsidiaries or a director, officer, employee, agent or trustee of any employee benefit plan for employees of the Company or any of its subsidiaries, and each person who is or was then serving in any such capacity (or any person who is or was then serving any other corporation or entity in any such capacity at the request of the Company) (individually, an "Indemnified Party" and collectively, the "Indemnified Parties") provided for in the Company's Restated Certificate of Incorporation or By-Laws or similar organizational documents of any Company subsidiary as in effect on the date of this Agreement with respect to indemnification, advancement of expenses matters occurring prior to the Effective Time shall survive the Merger and exculpation contained shall continue in the Parent Certificate of Incorporation full force and Parent Bylaws shall not be amended, repealed or otherwise modified effect for a period of not less than six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to from the Effective Time; provided, unless otherwise required by applicable Law (and provided however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim for indemnification for losses, damages or liabilities of any kind or nature incurred which is asserted or made within such six-year period shall continue until the final disposition of such claim; provided, further, however, that the Surviving Corporation shall not be liable for any settlement effected pursuant to such indemnification provisions without its written consent (which consent shall not be unreasonably withheld or delayed); and provided further, that, in the event that any claim or claims for indemnification are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm (plus local counsel, if applicable) to represent them with respect to any single action at the expense of the indemnifying person unless there is, under applicable standards of professional conduct, a material conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case each Indemnified Party with respect to whom such a conflict exists (or group of such Indemnified Parties who among them have no such conflict) may retain one separate law firm . Any legal counsel referred to in the preceding sentence shall be reasonably satisfactory to the indemnifying person, and the indemnifying person shall pay the reasonable fees and expenses of such legal counsel promptly after statements therefor are received.
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s Surviving Corporation shall cause to be maintained in effect, the current directors' and Inuvo’s Subsidiaries) now in effect officers' liability insurance covering each Indemnified Party who is currently covered by the Company's directors' and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” officers' liability insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that which occurred on at or prior to the Effective Time at a cost Time, or may substitute such other insurance as the Surviving Corporation or Parent may substitute therefor which insurance shall not be materially less favorable than such insurance maintained in effect by the Company on the date hereof in terms of coverage and amounts; provided however, that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable in no event shall the Surviving Corporation be required to CPT and Inuvo (expend pursuant to this Section 6.06(b) more than an amount per year equal to 150% of current annual premiums paid by the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) Company for such insurance coverage (which premiums the Company represents and warrants to be $103,000 per annum in an effort to reduce the cost thereofaggregate).
(ec) The rights This Section 6.06 shall survive the closing of each Indemnified Party hereunder shall be in addition tothe transactions contemplated hereby, and not in limitation of, any other rights such Indemnified Party may have under is intended to benefit the CPT Certificate of IncorporationCompany, the CPT Bylaws, the Inuvo Articles Surviving Corporation and each of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties (each of whom shall be entitled to whom enforce this Section 6.11 applies 6.06 against Parent or the Surviving Corporation, as the case may be) and their respective heirs, shall be binding on all successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive Parent and the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to hereinSurviving Corporation.
(fd) If In the event the Surviving Corporation or Parent or any of its their respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Parent shall Surviving Corporation, as the case may be, assume the obligations set forth in this Section 6.116.06.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws Vendor shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend indemnify and hold harmless the present Precision and former officers directors of CPTPrecision Affiliates, Inuvo Precision Clients and their respective Subsidiaries (collectivelyAffiliates, together with and any of their respective heirsdirectors, executors officers, shareholders, employees, agents, representatives, subcontractors, successors and administrators, assigns (the “Precision Indemnified Directors and OfficersParties”) from any and against all losses, claims, damages, costs and expenses (including including, without limitation, the Indemnified Parties’ reasonable attorneys’ fees and including other costs of legal defense, whether direct or indirect) (“Losses”) incurred by any attorneys’ fees or other fees incurred to enforce the provisions Precision Indemnified Parties as a result of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, actiondemand, suitaction or proceeding by any third party (each, Proceeding a “Claim”) relating to or investigationarising out of (i) any breach of any of Vendor’s representations, whether civilwarranties and obligations hereunder; (ii) any actual or alleged infringement or misappropriation of any patent, criminalcopyright, administrative trademark, trade secret, or investigative other proprietary right by any Work Product; or (iii) any negligent acts or omissions of Vendor and including all appeals thereof to which any Indemnified Directors its employees, agents and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPTcontractors.
b) Precision shall indemnify and hold harmless Vendor and Vendor’s Affiliates, Inuvo or and any of their respective Subsidiariesdirectors, officers, shareholders, employees, agents, representatives, subcontractors, successors and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
assigns (c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Vendor Indemnified Parties”) from any and against all Losses, incurred by any Vendor Indemnified Parties as a result of any Claim relating to or arising out of (i) any material breach of any of Precision’s obligations hereunder; or (ii) any grossly negligent acts or omissions of Precision.
c) The indemnifying party shall be entitled, at its option, to control the defense of any claim on which it is liable, provided that the indemnifying party shall act reasonably and in CPT Certificate good faith with respect to all matters relating to the settlement or disposition of Incorporationthe claim as the disposition of the claim relates to the indemnified party. The indemnifying party may not, CPT Bylawswithout indemnified party’s prior written consent, Inuvo Articles which consent shall not be unreasonably withheld, conditioned or delayed, settle or compromise any Claim or consent to the entry of Incorporation any judgment regarding which indemnification is being sought hereunder unless such settlement, compromise or Inuvo Bylaws consent includes an unconditional release of the indemnified party from all liability arising out of such claim; does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Indemnified Party; and does not contain any equitable order, judgment or term (other than the fact of payment or the organizational documents amount of CPT’s or Inuvo’s Subsidiariessuch payment) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions that in any manner that would adversely affect affects, restrains or interferes with the rights thereunder business of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-indemnified party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (iAffiliates.
d) consolidates with or merges into The indemnified parties shall cooperate in the investigation, defense and settlement of any other Person Claim and shall not be provide prompt notice of any such Claim or reasonably expected Claim to the continuing indemnifying party. An indemnified party shall have the right to retain its own separate legal counsel at its own expense.
e) If the Indemnifying Party fails or surviving corporation wrongfully refuses to defend or entity settle any Claims, then the Indemnified Party shall, upon written notice to the Indemnifying Party, have the right to defend or settle (and control the defense of) such Claims. In such case, the Indemnifying Party shall cooperate, at its own expense, with the Indemnified Party and its counsel in the defense and settlement of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, thenClaims, and shall pay, as they become due, all costs, damages, and reasonable outside legal fees incurred therefore.
f) At all times during the term of this Agreement and for a period of three years after its expiration or termination, Vendor shall maintain, at Vendor’s own expense, insurance coverage at such level and terms and with such insurers as are acceptable to Precision in each caseits reasonable discretion, and satisfying any specific requirements identified in the applicable SOW. Vendor shall, on request, supply to the extent necessaryPrecision copies of such insurance policies, proper provision shall be made so certificates of insurance and evidence that the successors and assigns relevant premiums have been paid. Vendor shall provide Precision with not less than thirty days prior written notice of the Parent shall assume the obligations set forth cancellation or material change in this Section 6.11coverage under such insurance policies.
Appears in 1 contract
Sources: Vendor Master Services Agreement (Syra Health Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at At or prior to the Effective Time, unless otherwise required by applicable Law the Company shall obtain and fully pay the premium for, and Parent shall maintain in full force and effect (and the obligations under to be honored), during the six (6) year period beginning on the date of the Effective Time, “tail” or “run off” insurance under the current directors’ and officers’ liability insurance policy or policies maintained by the Company and its Subsidiaries (which policy or policies by their respective express terms shall survive the Mergers) (provided that all rights the Company may substitute therefor “tail” policies with a substantially comparable insurer of indemnificationat least the same coverage and amounts containing terms and conditions which are no less advantageous to the insured for each of the foregoing), advancement in each case that (x) provides coverage with respect to claims arising from facts or events which occurred at or prior to the Effective Time (including the transactions contemplated by this Agreement) and (y) is in effect for a period of expenses at least six (6) years from and exculpation after the Effective Time; provided, however, that the Company shall not expend for such extended insurance coverage an amount in respect excess of any claim asserted or made within 250% of the current annual premium paid as of the date hereof by the Company for such six-year period shall continue until the final disposition of such claim)insurance.
(b) From For a period of no less than six (6) years from and after the Effective Time and until Time, the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Second Surviving Corporation shall indemnify, defend indemnify and hold harmless and shall advance expenses as incurred, in each case to the fullest extent permitted by the FBCA and any indemnification agreements in existence as of the date hereof and disclosed in Section 6.5(b) of the Company Disclosure Schedule, each present and former officers directors director or officer of CPTthe Company and its Subsidiaries (in each case, Inuvo and their respective Subsidiaries when acting in such capacity) (collectively, together with their respective heirs, executors and administrators, the “Company Indemnified Directors and OfficersParties”) against all losses, claims, damages, any costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bfees), Liabilities judgments, fines, losses, damages or amounts that are paid in settlement of, or otherwise, liabilities incurred in connection with any threatened or actual claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers investigative, whether arising before or after the Effective Time, arising out of the fact that such person is or may become was a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo the Company or any of their respective Subsidiaries, its Subsidiaries and arising out of actual pertaining to matters existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, including the transactions contemplated by this Agreement; provided that in each the case of advancement of expenses the Company Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification. The Second Surviving Corporation shall reasonably cooperate with the fullest extent permitted by applicable LawCompany Indemnified Parties and the Company Indemnified Parties shall reasonably cooperate with the Surviving Corporation, in the defense of any such claim, suit, action, proceeding or investigation.
(c) Each The provisions of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) this Section 6.5 shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is are intended to be for the benefit of, and shall be enforceable by, each Company Indemnified Party and his or her heirs and representatives. In the Indemnified Parties referred to herein.
(f) If event the Parent Second Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger merger, the terms of this Section 6.5 will be binding upon, inure to the benefit of and be enforceable by the successors and assigns of the Second Surviving Corporation by operation of law, and in the event the Second Surviving Corporation or (ii) any of its successors or assigns transfers or conveys all or substantially all of its properties and assets to any other Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors purchaser of its assets and assigns of the Parent properties shall assume the obligations set forth in this Section 6.116.5. This Section 6.5 shall survive the Effective Time.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Hancock Whitney Corp)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at At or prior to the Effective Time, unless otherwise required by applicable Law the Company shall obtain and fully pay the premium for, and the Surviving Corporation shall maintain in full force and effect (and the obligations under to be honored), during the six (6)-year period beginning on the date of the Effective Time, a “tail” prepaid directors’ and officers’ liability insurance policy or policies (which policy or policies by their respective express terms shall survive the Merger) (provided that all rights the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of indemnificationat least the same coverage and amounts containing terms and conditions which are no less advantageous to the insured for each of the foregoing), advancement in each case that (x) provides coverage with respect to claims arising from facts or events which occurred at or prior to the Effective Time (including the transactions contemplated by this Agreement) and (y) is in effect for a period of expenses at least six (6) years from and exculpation after the Effective Time; provided, however, that the Surviving Corporation shall not be required to expend for such extended insurance coverage an amount in respect excess of any claim asserted or made within three hundred percent (300%) of the current annual premium paid as of the date hereof by the Surviving Corporation for such six-year period shall continue until the final disposition of such claim)insurance.
(b) From For a period of no less than six (6) years from and after the Effective Time and until Time, the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent Surviving Corporation shall indemnify, defend indemnify and hold harmless and shall advance expenses as incurred, in each case to the fullest extent permitted under applicable law, the Company Articles, the governing or organizational documents of any Subsidiary of the Company and any indemnification agreements in existence as of the date hereof and disclosed in Section 6.7(b) of the Company Disclosure Schedule, each present and former officers directors director or officer of CPTthe Company and its Subsidiaries (in each case, Inuvo and their respective Subsidiaries when acting in such capacity) (collectively, together with their respective heirs, executors and administrators, the “Company Indemnified Directors and OfficersParties”) against all losses, claims, damages, any costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(bfees), Liabilities judgments, fines, losses, damages or amounts that are paid in settlement of, or otherwise, liabilities incurred in connection with any threatened or actual claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers investigative, whether arising before or after the Effective Time, arising, in whole or in part, out of, or pertaining to, the fact that such person is or may become was a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo the Company or any of their respective Subsidiaries, its Subsidiaries and arising out of actual pertaining to matters existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, including the transactions contemplated by this Agreement; provided that in each the case of advancement of expenses the Company Indemnified Party to the fullest extent permitted by applicable Lawwhom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such Company Indemnified Party is not entitled to indemnification.
(c) Each The provisions of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) this Section 6.7 shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is are intended to be for the benefit of, and shall be enforceable by, the each Company Indemnified Parties referred to hereinParty and his or her heirs and Representatives.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. From and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted by applicable Law, indemnify, defend, 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, officer, holder of Sunrise Class A Common Stock (a"Class A Holder"), or employee of Sunrise or any of its subsidiaries (collectively, the "Indemnified Parties") against all losses, expenses (including, reasonable attorneys' fees and expenses), claims, damages, or liabilities or, subject to the proviso of the next succeeding sentence, amounts paid in settlement, arising out of actions or omissions occurring at, or prior to the Effective Time and whether asserted or claimed prior to, at, or after the Effective Time that (i) in respect of any Indemnified Party (other than in his capacity as a Class A Holder), are in whole or in part (A) based on or arising out of the fact that such person is or was a director, officer, or employee of Sunrise or one of its subsidiaries or (B) based on, arising out of, or pertaining to the transactions contemplated hereby and (ii) in respect of any Indemnified Party in his capacity as a Class A Holder, solely based on, arising out of, or pertaining to the transactions contemplated hereby. The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate Second Amended and Restated Charter and the articles or certificates of Incorporation incorporation and Parent Bylaws bylaws of each of Sunrise's subsidiaries in respect of indemnification shall not be amended, repealed repealed, or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their termsParty. For a period of six (6) years after the Effective Time, Parent the Surviving Corporation shall maintain cause to be maintained in effect the indemnification, exculpation policies of directors' and advancement officers' liability insurance maintained by Sunrise for the benefit of expenses provisions those persons who are covered by such policies at the Effective Time (or the Surviving Corporation may substitute therefor policies of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and at least the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights same coverage in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior matters occurring prior to the Effective Time), Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from to the Effective Time with respect to directors’ and officers’ extent that such liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time can be maintained annually at a cost that is reasonable and customary to the Surviving Corporation not greater than 250% of the premium for tail insurance policies with a Sunrise's current directors’ ' and officers’ ' liability policy insurer reasonably acceptable insurance; provided, however, that if such insurance cannot be so maintained or obtained at such costs, the Surviving Corporation shall maintain or obtain as much of such insurance as can be so maintained or obtained at a cost equal to CPT and Inuvo (250% of the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) current annual premiums of Sunrise for such insurance coverage insurance. Notwithstanding any other provision of this Agreement to the contrary, the obligations of the Surviving Corporation contained in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder this Section 5.5 shall be in addition to, binding upon the successors and not in limitation of, assigns of the Surviving Corporation. If the Surviving Corporation or any successors or assigns shall consolidate with or merge into any other rights person and shall not be the continuing or surviving person of such Indemnified Party may have under consolidation or merger or shall transfer all or substantially all of its assets to any person, then and in each case, proper provision shall be made so that the CPT Certificate successors and assigns of Incorporation, the CPT Bylaws, Surviving Corporation shall assume the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Lawobligations set forth in this Section 5.5. The obligations of the Surviving Corporation under this Section 6.11 5.5 shall survive the consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect adversely any Indemnified Party to whom this Section 6.11 5.5 applies without the prior written consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11)Party. This Section 6.11 shall survive the consummation of the Mergers and 5.5 is intended to be for the benefit of, and shall be enforceable by, the each Indemnified Parties referred to hereinParty and their respective heirs and representatives.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in To the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporationgreatest extent allowed by Texas Law, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period District shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend indemnify and hold harmless the present YWPN, its affiliates, subsidiaries, trustees, directors, officers, agents, servants, and former officers directors of CPTemployees (each, Inuvo an “Indemnitee”), from and their respective Subsidiaries (collectively, together with their respective heirs, executors against any and administrators, the “Indemnified Directors and Officers”) against all lossesdamages, claims, damagesliability, losses and expenses incurred by any Indemnitee in respect of, arising out of, or involving, a claim made by any third-party against any Indemnitee resulting from or arising in connection with any advice, guidance, act or omission on the part of the District, its trustees, directors, officers, directors, agents, servants or employees, whether in connection with the services or support functions to be provided under this Agreement or activities undertaken by the District on behalf of other schools, excluding, however, any liability resulting from or arising in connection with (i) actions taken by the District at the express request or direction of YWPN, (ii) any advice, guidance, acts or omissions by the District premised on a misrepresentation or failure to disclose information when under an obligation to do so by the person or entity seeking indemnification, or (iii) any liability to the extent arising as a result of negligence, intentional tort, fraud or criminal conduct on the part of YWPN or any of its trustees, officers, agents, or employees.
b) If a third party claim is made against an Indemnitee, that does not include a claim for liability resulting from or arising in connection with (i) actions taken by the District at the express request or direction of YWPN, (ii) any advice, guidance, acts or omissions by the District premised on a misrepresentation or failure to disclose information when under an obligation to do so by the person or entity seeking indemnification, or (iii) any liability to the extent arising as a result of negligence, intentional tort, fraud or criminal conduct on the part of YWPN or any of its trustees, officers, agents or employees, then such Indemnitee shall give written notice to the District of such claim as soon as reasonably practicable after such Indemnitee has received notice thereof (provided that failure to give timely notice shall not limit the indemnification obligations of the District hereunder except to the extent that the delay in giving, or failure to give, such notice has materially prejudiced the ability of the District to defend the claim). The District shall defend such claim, at the District’s own expense or through its insurance as applicable and with counsel selected by the District and reasonably satisfactory to such Indemnitee, provided that an Indemnitee shall at all times also have the right to fully participate in the defense at its own expense unless the Indemnitee and the District reasonably determine that representation of Indemnitee and the District by the same counsel would materially prejudice the interest of District or the Indemnitee; provided that the District will only be responsible under such circumstances for the expenses of a single additional counsel for all Indemnitees). If the District shall fail to commence a defense against such claim within thirty (30) days after notice thereof shall have been given by an Indemnitee to the District or if the District shall not diligently pursue such defense, such Indemnitee shall have the right, but not the obligation, to undertake the defense of, and to compromise or settle (exercising reasonable business judgment), the claim on behalf, for the account, and at the risk and expense (including the payment of reasonable attorneys’ fees of such Indemnitee regardless of whether the Indemnitee prevails against the third party claim) of the District. If the District assumes the defense of such claim, the obligation of the District hereunder as to such claim shall include taking all reasonably necessary steps in the defense of such claim.
c) The District shall not consent to the entry of any judgment or settle or compromise any third party demands, claims, actions, suits or proceedings for which an Indemnitee has sought indemnification from the District and including for which Indemnitee has not been fully released unless it shall have given such Indemnitee not less than fifteen (15) days’ prior written notice of the proposed consent, settlement or compromise, and afforded such Indemnitee an opportunity to consult with the District regarding the proposed consent, settlement or compromise, and shall not consent to the entry of any attorneys’ fees judgment or enter into any settlement or compromise without the approval of such Indemnitee. An Indemnitee shall not unreasonably withhold or delay its approval of a proposed consent, settlement or compromise. In determining whether to give its approval, an Indemnitee may consider whether the proposed consent, settlement or compromise includes as an unconditional term thereof the giving by the claimant to such Indemnitee of a release from all liabilities and obligations of whatever kind or nature in respect of such claim except the liabilities and obligations satisfied by the District. If the Indemnitee unreasonably withholds its approval of a proposed consent settlement or compromise, and shall not consent to the entry of any judgment or enter into any settlement or compromise that provides the Indemnitee with a release from all liabilities and obligations of whatever kind or nature in respect of such claim except the liabilities and obligations satisfied by the District, Indemnitee shall continue its defense at its own cost and the District is not required to provide any additional amounts above the proposed consent settlement or compromise in any subsequent consent, settlement, judgment or compromise negotiated by Indemnitee.
d) The rights to indemnification and reimbursement provided by, or granted pursuant to, this Section shall continue as to an Indemnitee who has ceased to be a trustee, director, officer, agent, servant or employee of YWPN (or any other fees incurred to enforce person indemnified hereunder) but only for claims based upon events that occurred while the Indemnitee was a trustee, director, officer, agent, servant or employee of YWPN. The provisions of this Section 6.11(b)shall be a contract between the District, Liabilities or amounts that are paid on the one hand, and each Indemnitee who served at any time while this Section is in settlement ofeffect in any capacity entitling such Indemnitee to indemnification hereunder, or otherwiseon the other hand, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof pursuant to which any Indemnified Directors the District and Officers is or may become a party each such Indemnitee intend to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their termsbe legally bound. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, No repeal or otherwise modify such provisions in modification of this Section 16 shall affect any manner that would adversely affect the rights thereunder or obligations with respect to any state of such Indemnified Parties, and all such rights in respect of facts then or theretofore existing or thereafter arising or any action, suit, suit or proceeding theretofore or investigation pending or asserted or claim made thereafter brought or threatened within based in whole or in part upon such period shall continue until the final disposition or resolution thereofstate of facts.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Sources: Management Agreement
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses From and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect through the rights thereunder sixth anniversary of the persons who at any time prior Effective Time, PHFG agrees, and PHFG agrees to cause PHB (each an "Indemnifying Party" and together the "Indemnifying Parties"), to indemnify and hold harmless each present and former director, officer or employee of the Company or the Bank, as applicable, determined as of the Effective Time were entitled to indemnification(the "Indemnified Parties"), advancement against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of expenses matters existing or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent to which such Indemnified Parties were entitled under the Bylaws of the Company and provided the Bank, in each case as in effect on the date hereof, provided, however, that all rights of indemnification, advancement of expenses and exculpation to indemnification in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after . Without limiting the Effective Time and until the expiration foregoing obligation, PHFG also agrees that all limitations of liability existing in favor of any applicable statutes of limitation of the underlying claim to which foregoing Indemnified Parties in the indemnification relatesMBCA, Parent shall indemnifyas in effect on the date hereof, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual matters existing or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) Time shall survive the Mergers Merger and shall continue in full force and effect in accordance with their terms. For for a period of six (6) years after from the Effective Time, Parent shall maintain in effect the indemnificationprovided, exculpation and advancement of expenses provisions of CPT Certificate of Incorporationhowever, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or claim asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereofof such claim.
(db) Prior Any Indemnified Party wishing to claim indemnification under Section 5.9(a), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify the appropriate Indemnifying Party thereof, but the failure to so notify shall not relieve the Indemnifying Party of any liability it may have to such Indemnified Party if such failure does not materially prejudice the Indemnifying Party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Indemnifying Party shall have the right to assume the defense thereof and the Indemnifying Party 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 Indemnifying Party elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Indemnifying Party and the Indemnified Parties, the Indemnified Parties may retain counsel which is reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Parties (which may not exceed one firm in any jurisdiction); (ii) the Indemnified Parties will cooperate in the defense of any such matter; (iii) the Indemnifying Party shall not be liable for any settlement effected without its prior written consent; and (iv) the Indemnifying Party shall have no obligation hereunder in the event that a federal or state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by applicable laws and regulations.
(c) On or prior to the Effective Time, Parentthe Company, CPT and/or Inuvo or if the Company is unable to do so PHFG, shall obtain “tail” purchase insurance policies with coverage on substantially the same terms and conditions as the liability insurance provided by the Company for directors and officers of the Company and the Bank as of the date hereof for a claims period of six (6) years from not less than one year following the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereofTime.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall assume the obligations set forth in this Section 6.11.
Appears in 1 contract
Sources: Merger Agreement (Peoples Heritage Financial Group Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for For a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to following the Effective Time, unless otherwise required by applicable Law (and provided that Buyer shall cause the Surviving Corporation to comply with all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until the expiration of any applicable statutes of limitation obligations of the underlying claim Company that were in existence or in effect as of the date hereof, under Law, its certificate of incorporation, bylaws or by contract, and to which the indemnification relates, Parent shall indemnify, defend and hold harmless (and also advance expenses as incurred to the present and former officers directors fullest extent permitted under applicable Law to) each Person who is now or has been prior to the date hereof or who becomes prior to the Effective Time an officer or director of CPT, Inuvo and their respective the Company or any of its Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and OfficersPersons”) against all losses, claims, damages, costs, expenses (including reasonable attorneys’ including, without limitation, counsel fees and including any attorneys’ fees expenses), settlement payments or other fees incurred to enforce the provisions Liabilities arising out of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, demand, action, suit, investigation or other Legal Proceeding based in whole or investigation, whether civil, criminal, administrative in part on or investigative and including all appeals thereof to which any Indemnified Directors and Officers arising in whole or in part out of the fact that such Person is or may become a party to by virtue was an officer or director of his or her service as a present or former director or officer of CPT, Inuvo the Company or any of their respective Subsidiaries, and arising out of actual its Subsidiaries whether or alleged events, actions not pertaining to any matter existing or omissions occurring or alleged to have occurred at or prior to the Effective Time and whether or not asserted or claimed prior to or at or after the Effective Time. The parties hereto intend, in each case to the fullest extent permitted not prohibited by applicable Law, that the indemnification provided for in this Section 5.9 shall apply without limitation to acts or omissions (other than illegal acts or acts of fraud), or alleged acts or omissions (other than illegal acts or acts of fraud), by the Indemnified Persons in their capacities as officers or directors, as the case may be. Buyer hereby guarantees the payment and performance of the Surviving Corporation’s obligations in this Section 5.9. Each Indemnified Person, and his or her heirs and legal representatives, is intended to be a third party beneficiary of this Section 5.9 and may specifically enforce its terms. This Section 5.9 shall not limit or otherwise adversely affect any rights any Indemnified Person may have under any agreement with the Company or any of its Subsidiaries or under the Company’s or any such Subsidiary’s certificate of incorporation, bylaws or other organization documents.
(cb) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after following the Effective Time, Parent Buyer shall cause the Surviving Corporation to maintain in effect the indemnification, exculpation and advancement policies of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable covering each Person who was a director or officer of the Company or any of its Subsidiaries at any time prior to CPT and Inuvo for the Effective Time with respect to claims arising from facts or events that occurred on or prior to the Effective Time and providing at a cost least the same coverage and amounts and containing terms that is reasonable and customary for tail insurance are not less advantageous to the insured parties than those contained in the policies with a of directors’ and officers’ liability insurance in effect as of the date hereof; provided that in no event shall the Surviving Corporation be required to maintain such current policies if it is required to pay aggregate annual premiums under this Section 5.9(b) in excess of 275% of the amount of the current annual premium paid by the Company. In the event that Buyer is required to pay in excess of such amount, it shall only be obligated to provide a policy insurer with the best coverage Buyer is reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts able to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof275% amount.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(fc) If the Parent Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, then and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent shall Surviving Corporation assume the obligations set forth in this Section 6.115.9.
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Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for a period of six (6) years after the Effective Time in any manner that would adversely affect the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnification, advancement of expenses or exculpation under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiaries) in respect of actions or omissions occurring at or prior to the Effective Time, unless otherwise required by applicable Law (and provided that all rights of indemnification, advancement of expenses and exculpation in respect of any claim asserted or made within such six-year period shall continue until the final disposition of such claim).
(b) From and after the Effective Time and until Time, PHFG (the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent "Indemnifying Party") shall indemnify, defend indemnify and hold harmless the each present and former officers directors director, officer and employee of CPTthe Company or a Company Subsidiary, Inuvo and their respective Subsidiaries as applicable, determined as of the Effective Time (collectively, together with their respective heirs, executors and administrators, the “"Indemnified Directors and Officers”Parties") against all losses, claims, damages, any costs or expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b' fees), Liabilities judgments, fines, losses, claims, damages or amounts that are paid in settlement of, or otherwise, liabilities incurred in connection with any claim, action, suit, Proceeding proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPTinvestigative, Inuvo or any of their respective Subsidiaries, and arising out of actual matters existing or alleged events, 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, arising in each case whole or in part out of, or pertaining to (i) the fullest extent permitted by applicable Law.
(c) Each fact that he or she was a director, officer or employee of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now existing in favor of any Indemnified Directors and Officers the Company or any current or former employee of CPT, Inuvo Company Subsidiary or any of their respective Subsidiaries predecessors or (together with their heirs, executors and administrators, and any Indemnified Directors and Officersii) this Agreement, the “Company Stock Option Agreement and the transactions contemplated hereby and thereby, to the fullest extent which such Indemnified Parties”Parties would be entitled under the Bylaws of the Company, the Articles of Incorporation and Bylaws or equivalent documents of any Company Subsidiary, as applicable, or any agreement, arrangement or understanding which has been Previously Disclosed by the Company pursuant to Section 3.15(a)(iii) hereof, in each case as in effect on the date hereof. Without limiting the foregoing, PHFG also agrees that limitations on liability existing in favor of the Indemnified Parties as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo the Articles of Incorporation Organization, Bylaws or Inuvo Bylaws (or the organizational similar governing documents of CPT’s or Inuvo’s Subsidiaries) the Company and its Subsidiaries as in effect on the date hereof with respect to matters occurring prior to the Effective Time shall survive the Mergers Merger and the Bank Merger and shall continue in full force and effect in accordance with their terms. For a period of six (6) years from and after the Effective Time.
(b) Any Indemnified Party wishing to claim indemnification under Section 5.8(a), Parent shall maintain in effect the indemnification, exculpation and advancement upon learning of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements claim, action, suit, proceeding or investigation, shall promptly notify the Indemnifying Party, but the failure to so notify shall not relieve the Indemnifying Party of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not liability it may have to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all Party if such rights in respect failure does not materially prejudice the Indemnifying Party. In the event of any such claim, action, suit, proceeding or investigation pending (whether arising before or asserted after the Effective Time), (i) the Indemnifying Party shall have the right to assume the defense thereof and the Indemnifying Party shall not be liable to such Indemnified Parties for any legal expenses of other counsel or claim made any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Indemnifying Party elects not to assume such defense or threatened within counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between the Indemnifying Party and the Indemnified Parties, the Indemnified Parties may retain counsel which is reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Parties (which may not exceed one firm in any jurisdiction), (ii) the Indemnified Parties will cooperate in the defense of any such matter, (iii) the Indemnifying Party shall not be liable for any settlement effected without its prior written consent and (iv) the Indemnifying Party shall have no obligation hereunder in the event that a federal or state banking agency or a court of competent jurisdiction shall determine that indemnification of an Indemnified Party in the manner contemplated hereby is prohibited by applicable laws and regulations.
(c) PHFG shall use its reasonable best efforts to maintain the Company's existing directors' and officers' liability insurance policy (or a policy providing coverage on substantially the same terms and conditions) for acts or omissions occurring prior to the Effective Time by persons who are currently covered by such insurance policy maintained by the Company for a period of six years following the Effective Time, provided, however, that in no event shall continue until PHFG expend, in order to obtain such insurance, any amount per annum in excess of 150% of the final disposition amount of the actual annual premium paid as of the date hereof by the Company for such insurance (the "Maximum Amount"), and provided further that if the amount of the annual premium necessary to maintain or resolution thereofprocure such insurance coverage exceeds the Maximum Amount, PHFG shall use its reasonable best efforts to maintain the most advantageous policy of directors' and officers' insurance obtainable for an annual premium equal to the Maximum Amount.
(d) Prior to In the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount and scope reasonably acceptable to CPT and Inuvo for claims arising from facts or events event that occurred on or prior to the Effective Time at a cost that is reasonable and customary for tail insurance policies with a directors’ and officers’ liability policy insurer reasonably acceptable to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereof.
(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 shall not be terminated or modified in such a manner as to affect adversely any Indemnified Party to whom this Section 6.11 applies without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties referred to herein.
(f) If the Parent PHFG or any of its respective successors or assigns (i) consolidates with or merges into any other Person 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 Personperson, then, and in each case, to the extent necessary, proper provision shall be made so that such case the successors and assigns of the Parent such entity shall assume the obligations set forth in this Section 6.115.8.
(e) The provisions of this Section 5.8 are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives.
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Sources: Merger Agreement (Peoples Heritage Financial Group Inc)
Indemnification; Insurance. (a) The provisions with respect to indemnification, advancement of expenses and exculpation contained in the Parent Certificate of Incorporation and Parent Bylaws shall not be amended, repealed or otherwise modified for For a period of six (6) years after the Effective Time in any manner that would adversely affect Time, Holding Company shall, and shall cause the rights thereunder of the persons who at any time prior to the Effective Time were entitled to indemnificationProvince Surviving Corporation to, advancement of expenses or exculpation under the CPT Certificate of Incorporationindemnify, defend and hold harmless, the CPT Bylawspresent and former directors and officers of Province Entities (each, the Inuvo Articles of Incorporation, or the Inuvo Bylaws (or the applicable organizational documents of CPT’s and Inuvo’s Subsidiariesan “Indemnified Party”) in respect against all Liabilities arising out of actions or omissions arising out of the Indemnified Party’s service or services as a director or officer of Province or, at Province’s request, of another corporation, partnership, joint venture, trust or other enterprise occurring at or prior to the Effective TimeTime (including the transactions contemplated by this Agreement) to the fullest extent permitted under Delaware Law, unless otherwise Section 402 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and by Province’s Certificate of Incorporation and Bylaws as in effect on the date of this Agreement, including provisions relating to advances of expenses incurred in the defense of any Litigation and whether or not Holding Company is insured against any such matter, but only to the extent permitted under and by the foregoing. Without limiting the foregoing, in any case in which approval by the Province Surviving Corporation is required by applicable Law (and provided that all rights of to effectuate any indemnification, advancement the Province Surviving Corporation shall direct, at the election of expenses and exculpation in respect the Indemnified Party, that the determination of any claim asserted or such approval shall be made within such six-year period shall continue until by independent counsel mutually agreed upon by Holding Company and the final disposition of such claim)Indemnified Party.
(b) From Holding Company shall, or shall cause the Province Surviving Corporation to, use its reasonable efforts (and Province shall cooperate prior to the Effective Time in these efforts) to maintain in effect for a period of six years after the Effective Time and until the expiration of any applicable statutes of limitation of the underlying claim to which the indemnification relates, Parent shall indemnify, defend and hold harmless the present and former officers directors of CPT, Inuvo and their respective Subsidiaries (collectively, together with their respective heirs, executors and administrators, the “Indemnified Directors and Officers”) against all losses, claims, damages, expenses (including reasonable attorneys’ fees and including any attorneys’ fees or other fees incurred to enforce the provisions of this Section 6.11(b), Liabilities or amounts that are paid in settlement of, or otherwise, in connection with any claim, action, suit, Proceeding or investigation, whether civil, criminal, administrative or investigative and including all appeals thereof to which any Indemnified Directors and Officers is or may become a party to by virtue of his or her service as a present or former director or officer of CPT, Inuvo or any of their respective Subsidiaries, and arising out of actual or alleged events, actions or omissions occurring or alleged to have occurred at or prior to the Effective Time, in each case to the fullest extent permitted by applicable Law.
(c) Each of Parent, CPT and Inuvo agrees, that all rights to indemnification, exculpation and advancement of expenses now Province’s existing in favor of any Indemnified Directors and Officers or any current or former employee of CPT, Inuvo or any of their respective Subsidiaries (together with their heirs, executors and administrators, and any Indemnified Directors and Officers, the “Indemnified Parties”) as provided in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (or the organizational documents of CPT’s or Inuvo’s Subsidiaries) shall survive the Mergers and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, Parent shall maintain in effect the indemnification, exculpation and advancement of expenses provisions of CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of Incorporation or Inuvo Bylaws (and the organizational documents of CPT’s and Inuvo’s Subsidiaries) now in effect and any such indemnification agreements of CPT, Inuvo or any of their respective Subsidiaries with the Indemnified Parties and not to amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of such Indemnified Parties, and all such rights in respect of any action, suit, proceeding or investigation pending or asserted or claim made or threatened within such period shall continue until the final disposition or resolution thereof.
(d) Prior to the Effective Time, Parent, CPT and/or Inuvo shall obtain “tail” insurance policies with a claims period of six (6) years from the Effective Time with respect to directors’ and officers’ liability insurance in an amount policy (provided that Holding Company or the Province Surviving Corporation may substitute therefor (i) policies of at least the same coverage and scope reasonably acceptable amounts containing terms and conditions which are substantially no less advantageous or (ii) with the consent of Province given prior to CPT and Inuvo for the Effective Time, any other policy) with respect to claims arising from facts or events that which occurred on or prior to the Effective Time at a cost and covering Persons who are currently covered by such insurance; provided, that is neither Holding Company nor the Province Surviving Corporation shall be obligated to 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 Province’s directors and officers, 300% of the annual premium payments on Province’s current policy in effect as of the date of this Agreement (the “Maximum Amount”). If the amount of the premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Holding Company or the Province Surviving Corporation shall use its commercially reasonable and customary for tail insurance efforts to maintain the most advantageous policies with a of directors’ and officers’ liability policy insurer reasonably acceptable insurance obtainable for a premium equal to CPT and Inuvo (the “D&O Insurance”). Parent shall use commercially reasonable efforts to obtain competitive quotes (from insurance providers with comparable ratings) for such insurance coverage in an effort to reduce the cost thereofMaximum Amount.
(ec) The rights of each Any Indemnified Party hereunder wishing to claim indemnification under paragraph (a) of this Section 8.14, upon learning of any such Liability or Litigation, shall promptly notify Holding Company and the Province Surviving Corporation thereof. In the event of any such Litigation (whether arising before or after the Effective Time), (i) Holding Company or the Province Surviving Corporation shall have the right to assume the defense thereof and neither Holding Company nor the Province Surviving Corporation shall be in addition to, and not in limitation of, liable to any other rights such Indemnified Party may have under for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Party in connection with the CPT Certificate defense thereof, except that if Holding Company and the Province Surviving Corporation elects not to assume such defense or counsel for Holding Company advises that there are substantive issues which raise conflicts of Incorporationinterest between Holding Company or the Province Surviving Corporation, on the one hand, and the Indemnified Party, on the other hand, the CPT Bylaws, Indemnified Party may retain counsel satisfactory to it and Holding Company and/or the Inuvo Articles of Incorporation, the Inuvo BylawsProvince Surviving Corporation, and Holding Company or the Province Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Party; provided, that Holding Company and the Province Surviving Corporation shall be obligated pursuant to this paragraph (c) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction; (ii) the Indemnified Parties will cooperate in the defense of CPT’s or Inuvo’s Subsidiaries or under any other indemnification agreements or under applicable Law. The obligations under this Section 6.11 such Litigation; and (iii) neither Holding Company nor the Province Surviving Corporation shall not be terminated or modified in such a manner as liable for any settlement effected without its prior written consent; provided, further, that neither Holding Company nor the Province Surviving Corporation shall have any obligation hereunder to affect adversely any Indemnified Party to whom this Section 6.11 applies without when and if a court of competent jurisdiction shall determine that the consent indemnification of such affected Indemnified Party (it being expressly agreed that in the Indemnified Parties to whom this Section 6.11 applies and their respective heirs, successors and assigns shall be express third-party beneficiaries of this Section 6.11). This Section 6.11 shall survive the consummation of the Mergers and manner contemplated hereby is intended to be for the benefit ofprohibited by applicable Law, and such determination shall be enforceable by, the Indemnified Parties referred to hereinhave been final.
(fd) If Holding Company or the Parent Province Surviving Corporation or any of its their respective successors or assigns (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 or conveys shall transfer all or substantially all of its properties and assets Assets to any Person, then, and then in each case, to the extent necessary, proper provision shall be made so that the successors and assigns of Holding Company or the Parent Province Surviving Corporation shall assume the obligations set forth in this Section 6.118.14.
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