Insurance Indemnity. (a) Parent shall, or shall cause the --------------------- Surviving Corporation to maintain in effect for a period of six years after the Effective Time the Company's current directors' and officers' insurance policies (or policies containing substantially similar coverage) with respect to acts or failures to act prior to or as of the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder); provided, however, that in order to -------- ------- maintain or procure such coverage, neither Parent nor the Surviving Corporation shall be required to pay an annual premium in excess of 175% of the current annual premium paid by the Company for its existing coverage (the "Cap Amount"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap Amount. From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless to the full extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof, each person who is a current or former officer or director of the Company, or its Subsidiaries (each, an "Indemnified Party") against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). In the event of any such claim, action, suit, proceeding or investigation (an "Action"), the indemnifying party shall control the defense of such Action with ------ counsel selected by it; provided, however, that the Indemnified Party shall be -------- permitted to participate in the defense of such Action through counsel selected by it at the Indemnified Party's expense.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pulsepoint Communications)
Insurance Indemnity. (a) Parent shall, or shall cause the --------------------- Surviving Corporation to to, maintain in effect for a period of not less than six years after the Effective Time the Company's current directors' and officers' insurance policies (or policies containing substantially similar coverage) of the Company with respect to acts or failures to act prior to or as of the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder); provided, however, that in order to -------- ------- maintain or procure such coverage, neither Parent nor the Surviving Corporation Corporation, as applicable, shall be required to pay pay, in the -42- 48 aggregate, an annual premium (which premiums are hereby represented and warranted by the Company to be $430,000) in excess of 175200% of the current annual premium paid by the Company for its existing coverage (the "Cap Amount"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying paying, in the aggregate, an annual premium equal to the Cap AmountAmount and, provided, further, that Parent may substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers. From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, shall indemnify and hold harmless harmless, and provide advancement of expenses to, to the full fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereofapplicable law, each person who is a current or former officer or director of the Company, Company or any of its Subsidiaries (each, an "Indemnified Party") against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to matters existing acts or occurring at omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). In the event of any such claim, action, suit, proceeding or investigation (an "Action"), the indemnifying party shall control the defense of such Action with ------ counsel selected by it; provided, however, that the Indemnified Party shall be -------- permitted to participate in the defense of such Action through counsel selected by it at the Indemnified Party's expense.
Appears in 1 contract
Insurance Indemnity. (a) Parent shall, or The Purchaser shall cause the --------------------- Surviving Corporation to maintain keep in effect in its By-Laws a provision for a period of six not less than three years after the Effective Time the Company's current directors' and officers' insurance policies (or policies containing substantially similar coverage) with respect to acts or failures to act prior to or as of from the Effective Time (other than or, in the case of matters occurring prior to the extent Effective Time which have not been resolved prior to the available limit of any such insurance policy may be reduced or exhausted by reason third anniversary of the payment of claims thereunder); providedEffective Time, however, that in order to -------- ------- maintain or procure until such coverage, neither Parent nor the Surviving Corporation shall be required to pay an annual premium in excess of 175% matters are finally resolved) which provides for indemnification of the current annual premium paid past and present officers and directors of the Company to the fullest extent permitted by the Company for its existing coverage (the "Cap Amount"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap AmountCBCA. From and after the Effective Time, Parent shall, and the Purchaser shall cause the Surviving Corporation to, indemnify and hold harmless harmless, to the full fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereofapplicable law, each person who is a current is, or former has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company, Company or its Subsidiaries (each, an "Indemnified Party") any Subsidiary against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable expenses(including attorneys' fees), judgments, fines, penalties and amounts paid in settlement (collectively, "LOSSES") in connection with any claim, action, suit, proceeding or investigation Litigation arising out of or pertaining to matters existing acts or occurring omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions existed or occurred at or prior to the Effective Time, whether commenced, asserted or claimed prior to, at before or after the Effective Time, including, without limitation, liabilities arising under the Securities Act, the Exchange Act and state corporation laws in connection with the transactions contemplated hereby. (b) Without limiting the foregoing, the Company and after the Effective Time (and Parent and the Surviving Corporation Purchaser shall also periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party person to whom the expenses are advanced provides an undertaking to repay such advances advance if it is ultimately determined that such Indemnified Party person is not entitled to indemnification). In (c) If the event Merger shall have been consummated, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless the Purchaser and any person or entity who was a stockholder, officer, director or affiliate of Purchaser prior to the Effective Time against any Losses in connection with any Litigation arising out of or pertaining to any of the transactions contemplated by this Agreement or the Ancillary Documents. The Purchaser shall periodically advance expenses as incurred with respect to the foregoing to the fullest extent permitted under applicable law provided that the person to whom the expenses are advanced provides an undertaking to repay such claimadvance if it is ultimately determined that such person is not entitled to indemnification. (d) If any Litigation described in paragraph (b) or (c) of this SECTION 8.8 (each, action, suit, proceeding or investigation (an "ActionACTION")) arises or occurs, the indemnifying party Surviving Corporation shall control the defense of such Action with ------ through its counsel, but counsel for the party seeking indemnification pursuant to paragraph (b) or (c) of this SECTION 8.8 (each, an "INDEMNIFIED PARTY") shall be selected by it; provided, however, that the Indemnified Party shall be -------- permitted to participate in the defense of such Action through counsel selected by it at the Indemnified Party's expense., which counsel shall be reasonably acceptable to the Surviving Corporation, and the Indemnified Parties
Appears in 1 contract
Samples: Agreement and Plan of Merger (Summit Petroleum Corp)
Insurance Indemnity. (a) Parent shall, or USPI shall cause the --------------------- Surviving Corporation to maintain in effect for a period of not less than six years after the Effective Time the CompanyTime, OPC's current directors' directors and officers' officers insurance policies (or policies of at least the same coverage containing substantially similar coverageterms and conditions no less advantageous to the current and all former directors and officers of OPC) with respect to acts or failures to act prior to or as of the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder)Time; provided, however, that in order to -------- ------- maintain or procure such coverage, neither Parent nor the Surviving Corporation USPI shall not be required to pay an annual premium in excess of 175% of two times the current annual premium paid by the Company OPC for its existing coverage (the "Cap AmountCap"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap AmountCap, Parent and the Surviving Corporation USPI shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap AmountCap. From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, shall indemnify and hold harmless to the full fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereofapplicable law, each person who is a current is, or former has been at any time prior to the date hereof or who becomes prior to the Effective Time, an officer or director of the Company, OPC or any of its Subsidiaries (each, an "Indemnified Party") against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to matters existing acts or occurring at omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). In the event of any such claim, action, suit, proceeding or investigation (an "Action"), (i) the indemnifying party Surviving Corporation shall control pay the defense reasonable fees and expenses of such Action with ------ counsel selected by it; provided, however, that the Indemnified Party Party, which counsel shall be -------- reasonably acceptable to the Surviving Corporation, in advance of the final disposition of any such Action to the full extent permitted to participate by applicable law, upon receipt of any undertaking required by applicable law, and (ii) the Surviving Corporation shall cooperate in the defense of any such matter; provided that it will not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); provided further that the Surviving Corporation shall not be obligated pursuant to this Section to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single Action through except to the extent that, in the opinion of counsel selected by it at for the Indemnified Party's expenseParties, two or more of such Indemnified Parties have conflicting interests in the outcome of such Action. The rights of each Indemnified Party hereunder shall be in addition to any other rights the Indemnified Party may have under the Certificate of Incorporation or Bylaws of the Surviving Corporation, under the DGCL or otherwise. The provisions of this Section shall survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Surgical Partners International Inc)
Insurance Indemnity. (a) Parent The Surviving Corporation shall, or and, if applicable, Parent shall cause the --------------------- Surviving Corporation to to, maintain in effect for a period of not less than six years after the Effective Time the Company's current directors' and officers' insurance policies (or policies containing substantially similar coverage) of the Company with respect to acts or failures to act prior to or as of the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder); provided, however, that in order to -------- ------- maintain or procure such coverage, neither Parent nor the Surviving Corporation Corporation, as applicable, shall be required to pay pay, in the aggregate, an annual premium in excess of 175200% of the current annual premium paid by Parent or the Company for its existing coverage (the "Cap AmountCAP AMOUNT"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, the Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying paying, in the aggregate, an annual premium equal to the Cap Amount. From and after the Effective Time, Parent the Surviving Corporation shall, and and, if applicable, Parent shall cause the Surviving Corporation to, indemnify and hold harmless harmless, and provide advancement of expenses to, to the full fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereofapplicable law, each person who is a current or former officer or director of the Company, Company or its Subsidiaries (each, an "Indemnified PartyINDEMNIFIED PARTY") against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to matters existing acts or occurring at omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). In the event of any such claim, action, suit, proceeding or investigation (an "ActionACTION"), the indemnifying party shall control the defense of such Action with ------ counsel selected by it; provided, however, that the Indemnified Party shall be -------- permitted to participate in the defense of such Action through counsel selected by it at the Indemnified Party's expense.
Appears in 1 contract
Insurance Indemnity. (a) Parent shall, or shall cause the --------------------- Surviving Corporation to maintain in effect for a period of six years after the Effective Time the Company's current directors' and officers' insurance policies (or policies containing substantially similar coverage) with respect to acts or failures to act prior to or as of the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder); provided, however, that in order to -------- ------- maintain or procure such coverage, neither Parent nor the Surviving Corporation shall be required to pay an annual premium in excess of 175% of the current annual premium paid by the Company for its existing coverage (the "Cap Amount"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap Amount. From and after the Effective Time, Parent shall, and shall cause the -------------------- Surviving Corporation towill indemnify, indemnify defend and hold harmless harmless, to the full fullest extent permitted under the Articles of Incorporation of that the Company as in effect on would be required under its certificate of incorporation, by-laws, indemnification agreements with its officers and directors (the date hereof"Indemnification Agreements") and applicable law, each person who is a current now or former was during the past six months prior to the date hereof an officer or director of the Company, or its Subsidiaries Company (eachindividually, an "Indemnified Party" and collectively, the ") Indemnified Parties"), against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to matters existing acts or omissions, or alleged acts or omissions, by them in their capacities as such occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). In the event of any such claim, action, suit, proceeding or investigation (an "Action"), any Indemnified Party wishing to claim indemnification will promptly notify the indemnifying party Surviving Corporation thereof (provided that failure to so notify the Surviving Corporation will not affect the obligations of the Surviving Corporation to provide indemnification except to the extent that the Surviving Corporation shall control have been prejudiced as a result of such failure). With respect to any Action for which indemnification is requested, the Surviving Corporation will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Surviving Corporation may assume the defense thereof, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Surviving Corporation to the Indemnified Party of its election to assume the defense of an Action, the Surviving Corporation will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, other than as provided below. The Surviving Corporation will not settle any Actions without the consent of the Indemnified Party where such Action with ------ settlement includes an admission of civil or criminal liability on behalf of an officer or director or requires any payment to be made by the Indemnified Party. The Indemnified Party will have the right to employ counsel in any Action, but the fees and expenses of such counsel incurred after notice from the Surviving Corporation of its assumption of the defense thereof will be at the expense of the Indemnified Party, unless (i) the employment of counsel by the Indemnified Party has been authorized by the Surviving Corporation in writing, (ii) the Indemnified Party will have reasonably concluded upon the advice of counsel that there may be a conflict of interest between the Indemnified Party and the Surviving Corporation in the conduct of the defense of an Action, or (iii) the Surviving Corporation shall not in fact have employed counsel to assume the defense of an Action, in each of which cases the reasonable fees and expenses of counsel selected by it; provided, however, that the Indemnified Party shall will be -------- permitted at the expense of the Surviving Corporation. Notwithstanding the foregoing, the Surviving Corporation will not be liable for any settlement effected without its written consent and the Surviving Corporation will not be obligated pursuant to participate this Section 6.10(a) to pay the fees and disbursements of more than one counsel (including local counsel) for all Indemnified Parties in any single Action, except to the extent two or more of such Indemnified Parties have conflicting interests in the defense outcome of such Action through counsel selected by it at action. In the Indemnified Party's expenseevent of any conflict between the provisions of the Indemnification Agreements and this Section 6.10, the provisions of the Indemnification Agreements shall prevail.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Seaman Furniture Co Inc)
Insurance Indemnity. (a) Parent shall, or shall cause the --------------------- Surviving Corporation to maintain in effect for a period of six years after the Effective Time the Company's current directors' and officers' insurance policies (or policies containing substantially similar coverage) with respect to acts or failures to act prior to or as of the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder); provided, however, that in order to -------- ------- maintain or procure such coverage, neither Parent nor the Surviving Corporation shall be required to pay an annual premium in excess of 175% of the current annual premium paid by the Company for its existing coverage (the "Cap Amount"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap Amount. From and after After the Effective Time, Parent shall, and shall cause the Surviving Corporation towill indemnify, indemnify defend and hold harmless harmless, to the full fullest extent permitted under the Articles of Incorporation of that the Company as in effect on the date hereofwould be required under its presently existing articles of incorporation, bylaws and applicable law, each person who is a current now or former was prior to the date hereof an officer or director of the Company, Company or any of its Subsidiaries (eachindividually, an "Indemnified Party" and collectively, the ") Indemnified Parties"), against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to matters existing acts or omissions, or alleged acts or omissions, by them in their capacities as such occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). In the event of any such claim, action, suit, proceeding or investigation (an "Action"), any Indemnified Party wishing to claim indemnification will promptly notify the indemnifying party Surviving Corporation thereof (provided that failure to so notify the Surviving Corporation will not affect the obligations of the Surviving Corporation to provide indemnification except to the extent that the Surviving Corporation shall control have been prejudiced as a result of such failure). With respect to any Action for which indemnification is requested, the Surviving Corporation will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Surviving Corporation may assume the defense thereof, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Surviving Corporation to the Indemnified Party of its election to assume the defense of an Action, the Surviving Corporation will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, other than as provided below. The Surviving Corporation will not settle any Actions without the consent of the Indemnified Party where such Action with ------ settlement includes an admission of civil or criminal liability on behalf of an officer or director or requires any payment to be made by the Indemnified Party. The Indemnified Party will have the right to employ counsel in any Action, but the fees and expenses of such counsel incurred after notice from the Surviving Corporation of its assumption of the defense thereof will be at the expense of the Indemnified Party, unless (i) the employment of counsel by the Indemnified Party has been authorized by the Surviving Corporation in writing, (ii) the Indemnified Party will have reasonably concluded upon the advice of counsel that there may be a conflict of interest between the Indemnified Party and the Surviving Corporation in the conduct of the defense of an Action, or (iii) the Surviving Corporation shall not in fact have employed counsel to assume the defense of an Action, in each of which cases the reasonable fees and expenses of counsel selected by it; provided, however, that the Indemnified Party shall will be -------- permitted at the expense of the Surviving Corporation. Notwithstanding the foregoing, the Surviving Corporation will not be liable for any settlement effected without its written consent, which will not be unreasonably withheld, conditioned or delayed, and the Surviving Corporation will not be obligated pursuant to participate this Section 6.9(a) to pay the fees and disbursements of more than one counsel (including local counsel) for all Indemnified Parties in any single Action, except to the extent two or more of such Indemnified Parties have conflicting interests in the defense outcome of such Action through counsel selected by it at the Indemnified Party's expenseaction.
Appears in 1 contract
Insurance Indemnity. (a) Parent The Surviving Corporation shall, or and, if applicable, Parent shall cause the --------------------- Surviving Corporation to to, maintain in effect for a period of not less than six years after the Effective Time the Company's current directors' and officers' insurance policies (or policies containing substantially similar coverage) of the Company with respect to acts or failures to act prior to or as of the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder); provided, however, that in order to -------- ------- maintain or procure such coverage, neither Parent nor the Surviving Corporation Corporation, as applicable, shall be required to pay pay, in the aggregate, an annual premium in excess of 175200% of the current annual premium paid by Parent or the Company for its existing coverage (the "Cap Amount"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, the Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying paying, in the aggregate, an annual premium equal to the Cap Amount. From and after the Effective Time, Parent the Surviving Corporation shall, and and, if applicable, Parent shall cause the Surviving Corporation to, indemnify and hold harmless harmless, and provide advancement of expenses to, to the full fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereofapplicable law, each person who is a current or former officer or director of the Company, Company or its Subsidiaries (each, an "Indemnified Party") against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to matters existing acts or occurring at omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). In the event of any such claim, action, suit, proceeding or investigation (an "Action"), the indemnifying party shall control the defense of such Action with ------ counsel selected by it; provided, however, that the Indemnified Party shall be -------- permitted to participate in the defense of such Action through counsel selected by it at the Indemnified Party's expense.
Appears in 1 contract
Insurance Indemnity. (a) Parent shall, or shall cause the --------------------- Surviving Corporation to obtain and maintain in effect for a period of not less than six years after the Effective Time the Company's current a directors' and officers' insurance policies (policy or policies containing insuring the Company's directors and officers for all liabilities and costs (which policy or policies shall be substantially similar coverageequivalent to Parent's current policy or policies) with respect to acts or failures to act prior to or as of the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder); provided, however, that in order to -------- ------- maintain or procure such coverage, neither Parent nor the Surviving Corporation Corporation, as applicable, shall be required to pay pay, in the aggregate, an annual premium in excess of 175200% of the current annual premium paid by the Company Parent for its existing coverage (the "Cap Amount"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, the Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying paying, in the aggregate, an annual premium equal to the Cap Amount. From and after the Effective Time, Parent the Surviving Corporation shall, and and, if applicable, Parent shall cause the Surviving Corporation to, indemnify and hold harmless harmless, and provide advancement of expenses to, to the full fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereofapplicable law, each person who is a current or former officer or director of the Company, Company or any of its Subsidiaries (each, an "Indemnified Party") against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to matters existing acts or occurring at omissions, or alleged acts or omissions, by them in their capacities as such, which acts or omissions occurred prior to or as of the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). In the event of any such claim, action, suit, proceeding or investigation (an "Action"), the indemnifying party shall control the defense of such Action with ------ counsel selected by it; provided, however, that the Indemnified Party shall be -------- permitted to participate in the defense of such Action through counsel selected by it at the Indemnified Party's expense. Unless rendered by a court of competent jurisdiction, any required determination as to whether or not an Indemnified Party has met any applicable standard for indemnification under applicable law shall be made by independent counsel selected by such Indemnified Party and reasonably satisfactory to Parent, whose fees and expenses shall be borne by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (El Paso Energy Corp/De)
Insurance Indemnity. (a) Parent shall, or shall cause the --------------------- Surviving Corporation to maintain in effect for a period of six years after the Effective Time the Company's current directors' and officers' insurance policies (or policies containing substantially similar coverage) with respect to acts or failures to act prior to or as of the Effective Time (other than to the extent the available limit of any such insurance policy may be reduced or exhausted by reason of the payment of claims thereunder); provided, however, that in order to -------- ------- maintain or procure such coverage, neither Parent nor the Surviving Corporation shall be required to pay an annual premium in excess of 175% of the current annual premium paid by the Company for its existing coverage (the "Cap Amount"); ---------- and provided, further, that if equivalent coverage cannot be obtained, or can be -------- ------- obtained only by paying an annual premium in excess of the Cap Amount, Parent and the Surviving Corporation shall only be required to obtain as much coverage as can be obtained by paying an annual premium equal to the Cap Amount. From and after the Effective Time, -------------------- Parent shall, and shall will cause the Surviving Corporation toto indemnify, indemnify defend and hold harmless harmless, to the full fullest extent permitted under the Articles of Incorporation of that the Company as in effect on would be required under its certificate of incorporation, by-laws, indemnification agreements with its officers and directors (the date hereof"Indemnification Agreements") and applicable law, each person who is a current now or former was during the past six months prior to the date hereof an officer or director of the Company, or its Subsidiaries Company (eachindividually, an "Indemnified Party" and collectively, the ") Indemnified Parties"), against all losses, claims, ------------------ damages, liabilities, costs or expenses (including reasonable attorneys' fees), judgments, fines, penalties and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to matters existing acts or omissions, or alleged acts or omissions, by them in their capacities as such occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest extent permitted under the Articles of Incorporation of the Company as in effect on the date hereof provided the Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Party is not entitled to indemnification). In the event of any such claim, action, suit, proceeding or investigation (an "Action"), any Indemnified Party wishing to claim indemnification will promptly notify the indemnifying party Surviving Corporation thereof (provided that failure to so notify the Surviving Corporation will not affect the obligations of the Surviving Corporation to provide indemnification except to the extent that the Surviving Corporation shall control have been prejudiced as a result of such failure). With respect to any Action for which indemnification is requested, the Surviving Corporation will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Surviving Corporation may assume the defense thereof, with counsel reasonably satisfactory to the Indemnified Party. After notice from the Surviving Corporation to the Indemnified Party of its election to assume the defense of an Action, the Surviving Corporation will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, other than as provided below. The Surviving Corporation will not settle any Actions without the consent of the Indemnified Party where such Action with ------ settlement includes an admission of civil or criminal liability on behalf of an officer or director or requires any payment to be made by the Indemnified Party. The Indemnified Party will have the right to employ counsel in any Action, but the fees and expenses of such counsel incurred after notice from the Surviving Corporation of its assumption of the defense thereof will be at the expense of the Indemnified Party, unless (i) the employment of counsel by the Indemnified Party has been authorized by the Surviving Corporation, (ii) the Indemnified Party will have reasonably concluded upon the advice of counsel that there may be a conflict of interest between the Indemnified Party and the Surviving Corporation in the conduct of the defense of an Action, or (iii) the Surviving Corporation shall not in fact have employed counsel to assume the defense of an Action, in each of which cases the reasonable fees and expenses of counsel selected by it; provided, however, that the Indemnified Party shall will be -------- permitted to participate in the defense of such Action through counsel selected by it at the Indemnified Party's expense.expense of the Surviving Corporation. Notwithstanding the
Appears in 1 contract
