Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer. (b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage. (c) In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rights.
Appears in 5 contracts
Sources: Indemnification Agreement (DiaMedica Therapeutics Inc.), Indemnification Agreement (DiaMedica Therapeutics Inc.), Indemnification Agreement (DiaMedica Therapeutics Inc.)
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies, providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other director or officer of the Company. Notwithstanding the foregoing, the Company shall purchase and have no obligation to obtain or maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith thatthat such insurance is not reasonably available, either (x) if the premium cost costs for such insurance is substantially are disproportionate to the amount of coveragethe coverage provided, or (y) if the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit or if the Company otherwise determines in good faith that obtaining or maintaining such insurance is not in the best interests of the Company. If the Company has such insurance in effect at the time the Company receives from such insuranceIndemnitee any notice of the commencement of an action, then and in that eventsuit or proceeding, the Company shall not be required to maintain give prompt notice of the commencement of such insurance; provided furtheraction, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on suit or prior proceeding to the date of insurers in accordance with the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cb) In Subject to Section 9(b), in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy maintained by the Company. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 9(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and excise taxes or penalties relating to the Employee Retirement Income Security Act of 1974, as amended) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy other than an insurance policy maintained by an Indemnitee-related entity, contract, agreement or otherwise.
Appears in 5 contracts
Sources: Indemnification Agreement (BrightSpring Health Services, Inc.), Indemnification Agreement (BrightSpring Health Services, Inc.), Indemnification Agreement (KKR Acquisition Holdings I Corp.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance a policy or policies of insurance providing directors directors’ and officers officers’ liability insurance, Indemnitee shall be covered by such policy or policies policies, in accordance with its or their terms and terms, to the maximum extent of the coverage available for provided to any Company or Affiliate other director or officerofficer of the Company. If, at the time the Company receives from Indemnitee any notice of the commencement of an Action, Suit or Proceeding, the Company has such insurance in effect which would reasonably be expected to cover such Action, Suit or Proceeding, the Company shall give prompt notice of the commencement of such Action, Suit or Proceeding to the insurers in accordance with the procedures set forth in such policy or policies. The Company shall thereafter take all necessary or reasonably desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in accordance with the terms of such policy or policies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue Subject to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that areSection 9(b), in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee event of any good faith determination to reduce or not provide such coverage.
(c) In payment by the event of payment Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers reasonably required and shall do everything that may be take all action reasonably necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company to effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all Expenses incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 9(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Judgments, Fines and Amounts Paid in Settlement, and ERISA excise taxes or penalties) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 4 contracts
Sources: Sponsor Stockholders Agreement, Sponsor Stockholders Agreement (Denali Holding Inc.), Indemnification Agreement (Denali Holding Inc.)
Insurance and Subrogation. (a) To For the extent the Company duration of Indemnitee's service as a director, officer, employee, or an Affiliate agent of the Company maintains an and for not less than six years thereafter or, if later, for so long as Indemnitee is subject to any possible action, suit or proceeding described in Section 1(a) above, the Company shall provide directors' and officers' liability insurance policy or policies providing coverage for Indemnitee that is at least as favorable in scope and amount as that provided as of such time for the Company's directors and officers other executive officers. Upon request, the Company shall provide Indemnitee or his counsel with a copy of all directors' and officers' liability insuranceinsurance applications, binders, policies, declarations, endorsements and other related materials. In all policies of directors' and officers' liability insurance obtained by the Company, Indemnitee shall be covered named as an insured in such a manner as to provide Indemnitee the same rights and benefits, subject to the same limitations, as are accorded to the Company's directors and officers most favorably insured by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officerpolicy.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably necessary to secure such rightstake all action necessar▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, including the execution of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇f such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 4 contracts
Sources: Indemnification Agreement (Hampshire Group LTD), Indemnification Agreement (Hampshire Group LTD), Indemnification Agreement (Hampshire Group LTD)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required to maintain such insuranceacquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or omissions by Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required to maintain such insuranceacquired and D&O Insurance, with substantially the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains same terms and conditions that are, as the D&O Insurance in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately place prior to such acquisition, will be maintained by the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageacquirer that covers pre-closing acts and omissions by Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s non-independent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 4 contracts
Sources: Indemnification Agreement (Pam Transportation Services Inc), Indemnification Agreement (Certara, Inc.), Indemnification Agreement (MultiPlan Corp)
Insurance and Subrogation. (a) To The Company shall purchase and maintain insurance in reasonable amounts from established and reputable insurers on behalf of Indemnitee (which shall include so called “tail” coverage) who is or was or has agreed to serve at the extent the Company or an Affiliate request of the Company maintains an insurance policy as a director or policies providing directors officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against, and officers liability insuranceincurred by, Indemnitee or on Indemnitee’s behalf in any such capacity, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. If the Company has such insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of a proceeding, the Company shall be covered by give prompt notice of the commencement of such policy or policies proceeding to the insurers in accordance with its the procedures set forth in the policy. The Company shall thereafter take all necessary or their terms and desirable action to the maximum extent cause such insurers to pay, on behalf of the coverage available for any Company or Affiliate director or officerIndemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 4 contracts
Sources: Executive Employment Agreement (Intrepid Potash, Inc.), Indemnification Agreement (Dynamic Materials Corp), Indemnification Agreement (Intrepid Potash, Inc.)
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A” or better (or, if A.M. Best does not rate the insurance company, an equivalent rating by an equivalent licensed insurance rating organization or agency), providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served is or was or has agreed to serve as a director, officer, employee or agent of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other director or officer of the Company. If the Company has such insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an officer action, suit or directorproceeding, the Company shall purchase and maintain in effect for give prompt notice of the benefit commencement of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided action, suit or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided proceeding to the most favorably insured of insurers in accordance with the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cb) In Subject to Section 9(b), in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 9(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and excise taxes or penalties relating to the Employee Retirement Income Security Act of 1974, as amended) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 4 contracts
Sources: Indemnification Agreement (Hygo Energy Transition Ltd.), Indemnification Agreement (Change Healthcare Inc.), Indemnification Agreement (Change Healthcare Inc.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, Proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required to maintain such insuranceacquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or omissions by Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required to maintain such insuranceacquired and D&O Insurance, with substantially the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains same terms and conditions that are, as the D&O Insurance in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately place prior to such acquisition, will be maintained by the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageacquirer that covers pre-closing acts and omissions by Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s non-independent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of a Proceeding, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
Appears in 3 contracts
Sources: Indemnification Agreement (Agendia N.V.), Indemnification Agreement (hear.com N.V.), Indemnification Agreement (hear.com N.V.)
Insurance and Subrogation. (a) To For the extent the Company duration of Indemnitee's service as a director, officer, employee, or an Affiliate agent of the Company maintains an and for not less than six years thereafter or, if later, for so long as Indemnitee is subject to any possible action, suit or proceeding described in Section 1(a) above, the Company shall provide directors' and officers' liability insurance policy or policies providing coverage for Indemnitee that is at least as favorable in scope and amount as that provided as of such time for the Company's directors and officers other executive officers. Upon request, the Company shall provide Indemnitee or his counsel with a copy of all directors' and officers' liability insuranceinsurance applications, binders, policies, declarations, endorsements and other related materials. In all policies of directors' and officers' liability insurance obtained by the Company, Indemnitee shall be covered named as an insured in such a manner as to provide Indemnitee the same rights and benefits, subject to the same limitations, as are accorded to the Company's directors and officers most favorably insured by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officerpolicy.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably necessary to secure such rightstake all action neces▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, including the execution ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 3 contracts
Sources: Indemnification Agreement (Hampshire Group LTD), Indemnification Agreement (Hampshire Group LTD), Indemnification Agreement (Hampshire Group LTD)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors directors’ and officers officers’ liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as in a director or officercapacity referred to in Section 2 hereof, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceedingProceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or directorin any capacity referred to in Section 2 hereof, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (ai) coverage at least comparable to that presently provided or (bii) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors of the Company determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, event the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(cb) In the event of any payment of Indemnifiable Amounts under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of contribution or recovery of IndemniteeIndemnitee against other persons, who and Indemnitee shall execute take, at the request of the Company, all papers required and shall do everything that may be reasonably reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rights.
Appears in 3 contracts
Sources: Indemnification Agreement (ZimVie Inc.), Indemnification Agreement (Zimmer Holdings Inc), Indemnification Agreement (Zimmer Holdings Inc)
Insurance and Subrogation. (a) To For the extent the Company duration of Indemnitee's service as a director, officer, employee, or an Affiliate agent of the Company maintains an and for not less than six years thereafter or, if later, for so long as Indemnitee is subject to any possible action, suit or proceeding described in Section 1(a) above, the Company shall provide directors' and officers' liability insurance policy or policies providing coverage for Indemnitee that is at least as favorable in scope and amount as that provided as of such time for the Company's directors and officers other executive officers. Upon request, the Company shall provide Indemnitee or his counsel with a copy of all directors' and officers' liability insuranceinsurance applications, binders, policies, declarations, endorsements and other related materials. In all policies of directors' and officers' liability insurance obtained by the Company, Indemnitee shall be covered named as an insured in such a manner as to provide Indemnitee the same rights and benefits, subject to the same limitations, as are accorded to the Company's directors and officers most favorably insured by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officerpolicy.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 3 contracts
Sources: Indemnification Agreement (Hampshire Group LTD), Indemnification Agreement (Hampshire Group LTD), Indemnification Agreement (Hampshire Group LTD)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of that the Company maintains an insurance policy or policies providing directors and officers liability insuranceinsurance for directors, officers, employees, agents or fiduciaries of the Company or for individuals serving at the request of the Company as directors, officers, partners, venturers, proprietors, trustees, employees, agents, fiduciaries or similar functionaries of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company such director, officer, employee, agent or Affiliate director fiduciary under such policy or officerpolicies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under the Company’s charter or bylaws or any insurance policy, contract, agreement or otherwise.
(d) If Indemnitee is a director of the Company, the Company will advise the Board of any proposed material reduction in the coverage for Indemnitee to be provided by the Company’s directors’ and officers’ liability insurance policy and will not effect such a reduction with respect to Indemnitee without the prior approval of at least 80% of the Independent Directors of the Company.
(e) If Indemnitee is a director of the Company during the term of this Agreement and if Indemnitee ceases to be a director of the Company for any reason, the Company shall procure a run-off directors’ and officers’ liability insurance policy with respect to claims arising from facts or events that occurred before the time Indemnitee ceased to be a director of the Company and covering Indemnitee, which policy, without any lapse in coverage, will provide coverage for a period of six years after the time Indemnitee ceased to be a director of the Company and will provide coverage (including amount and type of coverage and size of deductibles) that are substantially comparable to the Company’s directors’ and officers’ liability insurance policy that was most protective of Indemnitee in the 12 months preceding the time Indemnitee ceased to be a director of the Company; provided, however, that:
(i) this obligation shall be suspended during the period immediately following the time Indemnitee ceases to be a director of the Company if and only so long as the Company has a directors’ and officers’ liability insurance policy in effect covering Indemnitee for such claims that, if it were a run-off policy, would meet or exceed the foregoing standards, but in any event this suspension period shall end when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding clause (i) (whether because of failure to have a policy meeting the foregoing standards or because a Change in Control occurs), the Company shall procure a run-off directors’ and officers’ liability insurance policy meeting the foregoing standards and lasting for the remainder of the six-year period.
(f) Notwithstanding the preceding clause (e) including the suspension provisions therein, if Indemnitee ceases to be an officer or director of the Company in connection with a Change in Control or at or during the one-year period following the occurrence of a Change in Control, the Company shall procure a run-off directors’ and officers’ liability insurance policy covering Indemnitee and meeting the foregoing standards in clause (e) and lasting for a six-year period upon the Indemnitee’s ceasing to be an officer or director of the Company in such circumstances.
Appears in 3 contracts
Sources: Indemnification Agreement (Pioneer Natural Resources Co), Indemnification Agreement (Pioneer Natural Resources Co), Indemnification Agreement (Pioneer Natural Resources Co)
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance policy or policies providing directors covenants and officers liability insuranceagrees that, as long as Indemnitee shall be covered by such policy or policies in accordance with its or their entitled to indemnification under the terms and of this Agreement, including Section 11 hereof, the Company, subject only to the maximum extent of the coverage available for any Company or Affiliate director or officer.
paragraph (b) The Company represents that it presently has of this Section 18, shall obtain and maintain in full force and effect directors directors’ and officers officers’ liability insurance on behalf of (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering Indemnitee against certain customary liabilities which may be any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Company would have the power to indemnify Indemnitee against such liability under this Agreement. The Company hereby agrees thatIn all such D&O Insurance policies, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served named as an officer or director, the Company shall purchase and maintain insured in effect for the benefit of a manner that grants Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided rights and benefits as are granted to the most favorably insured of the Company’s directors officers or officers; provideddirectors.
(b) Notwithstanding paragraph (a) of this Section 18, however, ifif the Company gives reasonable prior written notice to Indemnitee of the termination of D&O Insurance coverage, the then Board Company shall be relieved of Directors determines its duty to obtain and maintain D&O Insurance in future periods, if the Company in good faith thatdetermines that such insurance is not reasonably available in such future periods, either (x) or the premium cost costs for such insurance is substantially are disproportionate to the amount of coveragecoverage available, or (y) the available coverage provided by such insurance is so limited by exclusions that there it provides an insufficient benefit, or Indemnitee is insufficient benefit from covered by similar insurance maintained by a subsidiary of the Company.
(c) If the Company has D&O Insurance in effect at the time it receives a notice pursuant to Section 14 hereof, the Company shall give due and prompt notice of the commencement of such insuranceProceeding to the insurer(s) in accordance with the procedures set forth in the applicable policy. The Company shall thereafter take all necessary or desirable action to cause each insurer to pay, then and on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in that eventaccordance with the terms of the applicable policy.
(d) Anything herein or elsewhere to the contrary notwithstanding, the Company shall not be required liable to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions make any indemnity payment if and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of payment under this Agreement, the Company shall be subrogated to the extent of that Indemnitee has otherwise actually received such payment to all of the rights of recovery of Indemniteeunder any insurance policy, who shall execute all papers required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rightscontract or agreement.
Appears in 2 contracts
Sources: Indemnification Agreement (Thermadyne Australia Pty Ltd.), Indemnification Agreement (Thermadyne Holdings Corp /De)
Insurance and Subrogation. (a) To For the extent the Company duration of Indemnitee’s service as a director, officer, employee, or an Affiliate agent of the Company maintains an and for not less than six years thereafter or, if later, for so long as Indemnitee is subject to any possible action, suit or proceeding described in Section 2(a) above, the Company shall provide directors’ and officers’ liability insurance policy or policies providing coverage for Indemnitee that is at least as favorable in scope and amount as that provided as of such time for the Company’s directors and officers other executive officers. Upon request, the Company shall provide Indemnitee or his counsel with a copy of all directors’ and officers’ liability insuranceinsurance applications, binders, policies, declarations, endorsements and other related materials. In all policies of directors’ and officers’ liability insurance obtained by the Company, Indemnitee shall be covered named as an insured in such a manner as to provide Indemnitee the same rights and benefits, subject to the same limitations, as are accorded to the Company’s directors and officers most favorably insured by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officerpolicy.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 2 contracts
Sources: Indemnification Agreement (Tornier B.V.), Indemnification Agreement (Eurand N.V.)
Insurance and Subrogation. (a) To The Corporation represents that it currently has in effect the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors of director and officers officer liability insuranceinsurance (the “Insurance Policies”) identified below, a copy of which has been provided to Indemnitee. Indemnitee has coverage as an “insured person” under the Insurance Policies. Such coverage is limited to the terms of the Insurance Policies, which generally insure Indemnitee against any liability asserted against, and incurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent on Indemnitee’s behalf arising out of the coverage available for any Company or Affiliate director or officerIndemnitee’s Corporate Status.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so So long as Indemnitee shall continue continues to serve as a director or officer of the Corporation, or continues at the request of the Corporation to serve as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, and thereafter so long as Indemnitee shall could be subject to any possible claim or threatenedProceeding, pending or completed proceedingcould be made, whether civilor threatened to be made, criminal, administrative or investigativea party to any Proceeding, by reason of the fact that Indemnitee served as an officer or directorIndemnitee’s Corporate Status, the Company shall purchase and Corporation will be required to maintain the Insurance Policies in effect for the benefit or to obtain policies of Indemnitee such directors’ and officers’ liability insurance providing (a) from established and reputable insurers with coverage in at least comparable to that presently provided the amount or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, amounts as prescribed by the Insurance Policies and which provides the Indemnitee with substantially the same coverage provided rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are accorded to the most favorably insured of the CompanyCorporation’s directors or officers; provided, howeveras the case may be (“Comparable D&O Insurance”) unless, if, in the then reasonable business judgment of the Board of Directors determines in good faith thatas it may exist from time to time, either (x1) the premium cost for such insurance Insurance Policies or Comparable D&O Insurance is substantially disproportionate to the amount of coveragecoverage provided, or (y2) the coverage provided by such insurance Insurance Policies or Comparable D&O Insurance is so limited by exclusions that there is insufficient benefit from provided by such director and officer liability insurance. Notwithstanding the foregoing, then and if in that event, connection with a merger of the Company shall Corporation with another entity in which the Corporation is not be required to maintain such insurance; provided further, however, that if, after the surviving entity or a Change in Controlsale of all or substantially all of the Corporation’s assets or a similar transaction, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required may agree to purchase a “tail” policy which (i) has an effective term tail coverage that is less than that required by the preceding sentence provided that former directors and officers of six (6) years the Corporation are not treated differently from a Change in Controldirectors and officers serving at the time of such transaction. Indemnitee shall at all times have the right to inspect the Insurance Policies, (ii) covers and the Corporation shall provide notice to Indemnitee for actions and omissions occurring on or no less than 60 days prior to the date lapse or termination of coverage under any of the Change Insurance Policies or Comparable D&O Insurance. The Corporation shall give prompt notice of the commencement of any Proceeding to the insurers of the Insurance Policies in Controlaccordance with the procedures set forth in the Insurance Policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, (iii) contains on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms and conditions that areof such Insurance Policies, except if, in the aggregate, no less favorable to Indemnitee than those reasonable judgment of the Board of Directors, Indemnitee immediately prior has acted in contradiction of the limitations set forth in Section 1(b) (requiring Indemnitee, among other things, to have acted in good faith), so that it would be inequitable for Indemnitee to receive coverage and erode the Change in Control. The Company shall promptly notify Indemnitee limits of any good faith determination to reduce or not provide such coverageinsurance available for other insured persons.
(c) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Corporation to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Corporation shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(d) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 2 contracts
Sources: Indemnification Agreement (Quest Resource Corp), Indemnification Agreement (Quest Resource Corp)
Insurance and Subrogation. (a) To The Company shall purchase and maintain insurance in reasonable amounts from established and reputable insurers on behalf of Indemnitee (which shall include so called “tail” coverage) who is or was or has agreed to serve at the extent the Company or an Affiliate request of the Company maintains an insurance policy as a director or policies providing directors officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against, and officers liability insuranceincurred by, Indemnitee or on Indemnitee’s behalf in any such capacity, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. If the Company has such insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of a proceeding, the Company shall be covered by give prompt notice of the commencement of such policy or policies proceeding to the insurers in accordance with its the procedures set forth in the policy. The Company shall thereafter take all necessary or their terms and desirable action to the maximum extent cause such insurers to pay, on behalf of the coverage available for any Company or Affiliate director or officerIndemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ▇▇▇▇▇ excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 2 contracts
Sources: Indemnification Agreement (Intrepid Potash, Inc.), Indemnification Agreement (DMC Global Inc.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain insurance in effect for the benefit reasonable amounts from established and reputable insurers on behalf of Indemnitee such insurance providing (awhich shall include so called “tail” coverage) coverage who is or was or has agreed to serve at least comparable to that presently provided the request of the Company as a director or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against, and incurred by, Indemnitee or on Indemnitee’s directors behalf in any such capacity, or officersarising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement; provided, however, if, that the then Company shall have no obligation to maintain such insurance if the Board of Directors determines in good faith that, either (x) that the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or (y) coverage provided. If the coverage provided by Company has such insurance is so limited by exclusions that there is insufficient benefit in effect at the time the Company receives from such insurance, then and in that eventIndemnitee any notice of the commencement of a proceeding, the Company shall not be required to maintain give prompt notice of the commencement of such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior proceeding to the date of insurers in accordance with the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide the Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cb) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 2 contracts
Sources: Indemnification Agreement (National CineMedia, Inc.), Indemnification Agreement (National CineMedia, Inc.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required to maintain such insuranceacquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or omissions by Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required to maintain such insurance, acquired and D&O Insurance will be maintained by the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) acquirer that covers Indemnitee for actions pre-closing acts and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageby Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s non-independent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 2 contracts
Sources: Indemnification Agreement (Velocity Financial, LLC), Indemnification Agreement (Grocery Outlet Holding Corp.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of that the Company maintains an insurance policy or policies providing directors and officers liability insuranceinsurance for directors, officers, employees, agents, fiduciaries or similar functionaries of the Company or for individuals serving at the request of the Company as directors, officers, partners, members, venturers, proprietors, trustees, employees, agents, fiduciaries or similar functionaries of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company such director, officer, employee, agent, fiduciary or Affiliate director similar functionary under such policy or officerpolicies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this AgreementAgreement for which reimbursement is available under any insurance policy or policies obtained by the Company, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee under such insurance policy or policies, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rights, provided that all Expenses relating to such action shall be borne by the Company.
(c) If Indemnitee is a director of the Company, the Company will advise the Board of any proposed material reduction in the coverage for Indemnitee to be provided by the Company’s directors’ and officers’ liability insurance policy and will not effect such a reduction with respect to Indemnitee without the prior approval of at least 80% of the Independent Directors of the Company.
(d) If Indemnitee is a director of the Company during the term of this Agreement and Indemnitee ceases to be a director of the Company for any reason, the Company shall procure a run-off directors’ and officers’ liability insurance policy with respect to claims arising from facts or events that occurred before the time Indemnitee ceased to be a director of the Company and covering Indemnitee, which policy, without any lapse in coverage, will provide coverage for a period of six years after the time Indemnitee ceased to be a director of the Company and will provide coverage (including amount and type of coverage and size of deductibles) that are substantially comparable to the Company’s directors’ and officers’ liability insurance policy that was most protective of Indemnitee in the 12 months preceding the time Indemnitee ceased to be a director of the Company; provided, however, that:
(i) this obligation shall be suspended during the period immediately following the time Indemnitee ceases to be a director of the Company if and only so long as the Company has a directors’ and officers’ liability insurance policy in effect covering Indemnitee for such claims that, if it were a run-off policy, would meet or exceed the foregoing standards, but in any event this suspension period shall end when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding clause (i) (whether because of failure to have a policy meeting the foregoing standards or because a Change in Control occurs), the Company shall procure a run-off directors’ and officers’ liability insurance policy meeting the foregoing standards and lasting for the remainder of the six-year period.
(e) Notwithstanding the preceding clause (d) including the suspension provisions therein, if Indemnitee ceases to be an officer or a director of the Company in connection with a Change in Control or at or during the one-year period following the occurrence of a Change in Control, the Company shall procure a run-off directors’ and officers’ liability insurance policy covering Indemnitee that meets the foregoing standards in clause (d) and lasts for a six-year period upon Indemnitee’s ceasing to be an officer or a director of the Company in such circumstances.
Appears in 2 contracts
Sources: Indemnification Agreement (Geotag Inc.), Indemnification Agreement (Trico Marine Services Inc)
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use its reasonable best efforts to purchase and maintain a policy or policies of directors’ and officers’ liability insurance (“D&O Insurance”) with reputable insurance companies with A.M. Best ratings of “A-” or better (or, if A.M. Best does not rate the insurance company, an equivalent rating by an equivalent licensed insurance rating organization or agency), providing directors the Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, the Indemnitee shall be covered or on the Indemnitee’s behalf by such policy or policies in accordance with its or their terms and to the maximum extent reason of the coverage available for any Company fact that the Indemnitee is or Affiliate director was or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue agreed to serve as a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, and thereafter so long employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of the Indemnitee’s status as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceedingsuch, whether civil, criminal, administrative or investigative, by reason not the Company would have the power to indemnify the Indemnitee against such liability under the provisions of this Agreement.
(b) Notwithstanding any other provisions of this Agreement to the fact that Indemnitee served as an officer or directorcontrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required to maintain such insuranceacquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or omissions by the Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required to maintain such insuranceacquired and D&O Insurance, with substantially the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains same terms and conditions that are, as the D&O Insurance in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately place prior to such acquisition, will be maintained by the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageacquirer that covers pre-closing acts and omissions by the Indemnitee.
(c) In all policies of D&O Insurance, the Indemnitee shall qualify as an insured in such a manner as to provide the Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if the Indemnitee is such an independent director; (ii) of the Company’s non-independent directors if the Indemnitee is not an independent director; or (iii) of the Company’s officers if the Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from the Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who the Indemnitee with respect to any D&O Insurance maintained by the Company. The Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such D&O Insurance. The Company shall pay or reimburse all expenses actually and reasonably incurred by the Indemnitee in connection with such subrogation.
(e) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and excise taxes or penalties relating to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) if and to the extent that the Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To For the extent the Company or an Affiliate duration of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve ’s service as a director or officerand/or officer of the Corporation, and thereafter for so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceedingpossible Proceeding or Claim, whether civil, criminal, administrative or investigative, by reason the Corporation shall use commercially reasonable efforts (taking into account the scope and amount of coverage available relative to the cost thereof) to cause to be maintained in effect policies of directors’ and officers’ liability insurance providing coverage for directors and/or officers of the fact Corporation. The Corporation shall provide Indemnitee with a copy of all directors’ and officers’ liability insurance applications, binders, policies, declarations, endorsements and other related materials. Without limiting the generality or effect of the two immediately preceding sentences, the Corporation shall not discontinue or significantly reduce the scope or amount of coverage from one policy period to the next (i) without the prior approval thereof by a majority vote of the Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such discontinuation or significant reduction in the scope or amount of coverage is proposed there are no Incumbent Directors, without the prior written consent of Indemnitee served (which consent shall not be unreasonably withheld or delayed). In all policies of directors’ and officers’ liability insurance obtained by the Corporation, Indemnitee shall be named as an officer or director, the Company shall purchase and maintain insured in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed a manner as to provide any enhanced Indemnitee the same rights or and benefits, subject to the same coverage provided limitations, as are accorded to the Corporation’s directors and officers most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurancepolicy. The Corporation may, then and in that event, the Company but shall not be required to, create a trust fund, grant a security interest or use other means, including without limitation a letter of credit, to maintain ensure the payment of such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not amounts as may be required necessary to maintain such insurance, the Company shall be required satisfy its obligations to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions indemnify and omissions occurring on or prior advance Expenses pursuant to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coveragethis Agreement.
(cb) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against other persons or entities (other than Indemnitee, who ’s successors). Indemnitee shall execute all papers reasonably required to evidence such rights (all of Indemnitee’s reasonable Expenses related thereto to be reimbursed by or, at the option of Indemnitee, advanced by the Corporation.
(c) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and shall do everything to the extent that may be reasonably necessary to secure Indemnitee has otherwise actually received such rightspayment under any insurance policy, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rightscontract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (Peerless Manufacturing Co)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director, officer, employee or agent of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain D&O Insurance if the Company determines in effect for the benefit of Indemnitee good faith that: such insurance providing (a) is not reasonably available; the premium costs for such insurance are disproportionate to the amount of coverage at least comparable to that presently provided; the coverage provided or (b) if by such coverage insurance is hereafter changed limited by exclusions so as to provide any enhanced rights an insufficient benefit; the Company is to be acquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or benefitsomissions by Indemnitee; or the Company is to be acquired and D&O Insurance will be maintained by the acquirer that covers pre-closing acts and omissions by Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same coverage provided rights and benefits as are accorded to the most favorably insured of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; of the Company’s non-independent directors if Indemnitee is not an independent director; of the Company’s officers if Indemnitee is an officer of the Company; or officers; providedof the Company’s key employees, howeverif Indemnitee is not a director or officer but is a key employee. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, suit or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that eventproceeding, the Company shall not be required to maintain give prompt notice of the commencement of such insurance; provided furtheraction, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on suit or prior proceeding to the date of insurers in accordance with the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cd) In Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (Mercury Payment Systems, Inc.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of that the Company maintains an insurance policy or policies providing directors and officers liability insuranceinsurance for directors, officers, employees, agents, fiduciaries or similar functionaries of the Company or for individuals serving at the request of the Company as directors, officers, partners, members, venturers, proprietors, trustees, employees, agents, fiduciaries or similar functionaries of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company such director, officer, employee, agent, fiduciary or Affiliate director similar functionary under such policy or officerpolicies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this AgreementAgreement for which reimbursement is available under any insurance policy or policies obtained by the Company, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee under such insurance policy or policies, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rights, provided that all Expenses relating to such action shall be borne by the Company.
(c) If Indemnitee is a director of the Company, the Company will advise the Board of any proposed material reduction in the coverage for Indemnitee to be provided by the Company’s directors’ and officers’ liability insurance policy and will not effect such a reduction with respect to Indemnitee without the prior approval of at least 80% of the Independent Directors of the Company.
(d) If Indemnitee is a director of the Company during the term of this Agreement and Indemnitee ceases to be a director of the Company for any reason, the Company shall procure a run-off directors’ and officers’ liability insurance policy with respect to claims arising from facts or events that occurred before the time Indemnitee ceased to be a director of the Company and covering Indemnitee, which policy, without any lapse in coverage, will provide coverage for a period of five (5) years after the time Indemnitee ceased to be a director of the Company and will provide coverage (including amount and type of coverage and size of deductibles) that are substantially comparable to the Company’s directors’ and officers’ liability insurance policy that was most protective of Indemnitee in the twelve (12) months preceding the time Indemnitee ceased to be a director of the Company; provided, however, that:
(i) this obligation shall be suspended during the period immediately following the time Indemnitee ceases to be a director of the Company if and only so long as the Company has a directors’ and officers’ liability insurance policy in effect covering Indemnitee for such claims that, if it were a run-off policy, would meet or exceed the foregoing standards, but in any event this suspension period shall end when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding clause (i) (whether because of failure to have a policy meeting the foregoing standards or because a Change in Control occurs), the Company shall procure a run-off directors’ and officers’ liability insurance policy meeting the foregoing standards and lasting for the remainder of the five (5) period.
(e) Notwithstanding the preceding clause (d) including the suspension provisions therein, if Indemnitee ceases to be an officer or a director of the Company in connection with a Change in Control or at or during the one (1) year period following the occurrence of a Change in Control, the Company shall procure a run-off directors’ and officers’ liability insurance policy covering Indemnitee that meets the foregoing standards in clause (d) and lasts for a five (5) year period upon Indemnitee’s ceasing to be an officer or a director of the Company in such circumstances.
Appears in 1 contract
Sources: Indemnification Agreement (Universal Insurance Holdings, Inc.)
Insurance and Subrogation. (a) To For the extent the Company or an Affiliate duration of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve ’s service as a director or officerand/or officer of the Corporation, and thereafter for so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceedingpossible Proceeding or Claim, whether civil, criminal, administrative or investigative, by reason the Corporation shall use commercially reasonable efforts (taking into account the scope and amount of coverage available relative to the cost thereof) to cause to be maintained in effect policies of directors’ and officers’ liability insurance providing coverage for directors and/or officer of the fact Corporation. The Corporation shall provide Indemnitee with a copy of all directors’ and officers’ liability insurance applications, binders, policies, declarations, endorsements and other related materials. Without limiting the generality or effect of the two immediately preceding sentences, the Corporation shall not discontinue or significantly reduce the scope or amount of coverage from one policy period to the next (i) without the prior approval thereof by a majority vote of the Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such discontinuation or significant reduction in the scope or amount of coverage is proposed there are no Incumbent Directors, without the prior written consent of Indemnitee served (which consent shall not be unreasonably withheld or delayed). In all policies of directors’ and officers’ liability insurance obtained by the Corporation, Indemnitee shall be named as an officer or director, the Company shall purchase and maintain insured in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed a manner as to provide any enhanced Indemnitee the same rights or and benefits, subject to the same coverage provided limitations, as are accorded to the Corporation’s directors and officers most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurancepolicy. The Corporation may, then and in that event, the Company but shall not be required to, create a trust fund, grant a security interest or use other means, including without limitation a letter of credit, to maintain ensure the payment of such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not amounts as may be required necessary to maintain such insurance, the Company shall be required satisfy its obligations to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions indemnify and omissions occurring on or prior advance Expenses pursuant to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlthis Agreement. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against other persons or entities (other than Indemnitee, who ’s successors). Indemnitee shall execute all papers reasonably required to evidence such rights (all of Indemnitee’s reasonable Expenses related thereto to be reimbursed by or, at the option of Indemnitee, advanced by the Corporation). The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and shall do everything to the extent that may be reasonably necessary to secure Indemnitee has otherwise actually received such rightspayment under any insurance policy, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rightscontract, agreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies, providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served is or was or has agreed to serve as an officer a director of the Company, or while serving as a director of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other director of the Company. Notwithstanding the foregoing, the Company shall purchase and have no obligation to obtain or maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith thatthat such insurance is not reasonably available, either (x) if the premium cost costs for such insurance is substantially are disproportionate to the amount of coveragethe coverage provided, or (y) if the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit or if the Company otherwise determines in good faith that obtaining or maintaining such insurance is not in the best interests of the Company. If the Company has such insurance in effect at the time the Company receives from such insuranceIndemnitee any notice of the commencement of an action, then and in that eventsuit or proceeding, the Company shall not be required to maintain give prompt notice of the commencement of such insurance; provided furtheraction, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on suit or prior proceeding to the date of insurers in accordance with the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cb) In Subject to Section 9(b), in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 9(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and ERISA excise taxes or penalties) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (National Vision Holdings, Inc.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance The Corporation represents that it currently has in effect policy or policies providing directors of director and officers officer liability insurance, insurance (the "Insurance Policies") which names or covers Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officeras an insured.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending is a party or completed proceeding, whether civil, criminal, administrative or investigativeis threatened to be made a party to any Proceeding, by reason of the fact that Indemnitee served as an is or was a director or officer of the Corporation, or directoris or was serving in any of said other capacities at the request of the Corporation, the Company Corporation shall purchase and be required to maintain the Insurance Policies in effect for the benefit or to obtain policies of Indemnitee such directors' and officers' liability insurance providing (a) from established and reputable insurers with coverage in at least comparable to that presently provided the amount or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, amounts as prescribed by the Insurance Policies and which provides the Indemnitee with substantially the same coverage provided rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are accorded to the most favorably insured of the Company’s Corporation's directors or officers; provided, howeveras the case may be ("Comparable D&O Insurance") unless, if, in the then reasonable business judgment of the Board of Directors determines in good faith thatof the Corporation as it may exist from time to time, either (xi) the premium cost for such insurance Insurance Policies or Comparable D&O Insurance is substantially disproportionate to the amount of coveragecoverage provided, or (yii) the coverage provided by such insurance Insurance Policies or Comparable D&O Insurance is so limited by exclusions that there is insufficient benefit from provided by such insurance, then director and in that event, the Company shall not be required to maintain such officer liability insurance; provided furtherprovided, however, that if, after a Change in Control, the event that the Board of Directors determines that the Company shall not be required to maintain makes such insurancea determination, the Company Corporation shall be required provide notice to purchase a “tail” policy which Indemnitee no less than thirty (i30) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or days prior to the date lapse or termination of coverage under the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce Insurance Policies or not provide such coverageComparable D&O Insurance.
(c) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has director and officer liability insurance in effect, the Corporation shall give prompt notice of the commencement of such claim, and any Proceeding in which such claim is asserted, to the insurers in accordance with the procedures set forth in the respective policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Corporation under this Agreement.
(d) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Corporation to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Corporation shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation's Certificate of Incorporation or ByLaws, or any insurance policy, contract, agreement or otherwise.
(f) The Corporation's obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Sources: Indemnification Agreement (Compass Minerals International Inc)
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A” or better, providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer is or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing was (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring whether on or prior to the date of this Agreement or thereafter) or has agreed to serve as a director, officer, employee or agent of the Change in ControlCompany, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (iiiwhich, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) contains of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and conditions that are, in the aggregate, no less policy limits at least as favorable to Indemnitee than those as the insurance coverage provided to any other director or officer of the Company. If the Company has such insurance in effect at the time the Company receives from Indemnitee immediately prior any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the Change insurers in Controlaccordance with the procedures set forth in the policy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cb) In Subject to Section 9(b), in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 9(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and ERISA excise taxes or penalties) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of that the Company maintains an insurance policy or policies providing directors and officers liability insuranceinsurance for directors, officers, employees, agents or fiduciaries of the Company or for individuals serving at the request of the Company as directors, officers, partners, venturers, proprietors, trustees, employees, agents, fiduciaries or similar functionaries of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company such director, officer, employee, agent or Affiliate director fiduciary under such policy or officerpolicies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under the Company's charter or bylaws or any insurance policy, contract, agreement or otherwise.
(d) If Indemnitee is a director of the Company, the Company will advise the Board of any proposed material reduction in the coverage for Indemnitee to be provided by the Company's directors' and officers' liability insurance policy and will not effect such a reduction with respect to Indemnitee without the prior approval of at least 80% of the Independent Directors of the Company.
(e) If Indemnitee is a director of the Company during the term of this Agreement and if Indemnitee ceases to be a director of the Company for any reason, the Company shall procure a run-off directors' and officers' liability insurance policy with respect to claims arising from facts or events that occurred before the time Indemnitee ceased to be a director of the Company and covering Indemnitee, which policy, without any lapse in coverage, will provide coverage for a period of six years after the time Indemnitee ceased to be a director of the Company and will provide coverage (including amount and type of coverage and size of deductibles) that are substantially comparable to the Company's directors' and officers' liability insurance policy that was most protective of Indemnitee in the 12 months preceding the time Indemnitee ceased to be a director of the Company; provided, however, that:
(i) this obligation shall be suspended during the period immediately following the time Indemnitee ceases to be a director of the Company if and only so long as the Company has a directors' and officers' liability insurance policy in effect covering Indemnitee for such claims that, if it were a run-off policy, would meet or exceed the foregoing standards, but in any event this suspension period shall end when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding clause (i) (whether because of failure to have a policy meeting the foregoing standards or because a Change in Control occurs), the Company shall procure a run-off directors' and officers' liability insurance policy meeting the foregoing standards and lasting for the remainder of the six-year period.
(f) Notwithstanding the preceding clause (e) including the suspension provisions therein, if Indemnitee ceases to be an officer or director of the Company in connection with a Change in Control or at or during the one-year period following the occurrence of a Change in Control, the Company shall procure a run-off directors' and officers' liability insurance policy covering Indemnitee and meeting the foregoing standards in clause (e) and lasting for a six-year period upon the Indemnitee's ceasing to be an officer or director of the Company in such circumstances.
Appears in 1 contract
Sources: Indemnification Agreement (Pioneer Natural Resources Co)
Insurance and Subrogation. (a) To The Corporation represents that it currently has in effect the extent the Company or an Affiliate of the Company maintains an insurance following policy or policies providing directors of director and officers officer liability insurance, insurance (the "Insurance Policies") which names or covers Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.as an insured:
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, DB04/1003206.0002/11820348.4 employee or agent of any Other Enterprise (which term, solely for purposes of this Section 7(b), shall be defined by reference to the definition of such term in the applicable Insurance Policy), and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending is a party or completed proceeding, whether civil, criminal, administrative or investigativeis threatened to be made a party to any Proceeding, by reason of the fact that Indemnitee served as an is or was a director or officer of the Corporation, or directoris or was serving in any of said other capacities at the request of the Corporation, the Company Corporation shall purchase and be required to maintain the Insurance Policies in effect for the benefit or to obtain policies of Indemnitee such directors' and officers' liability insurance providing (a) from established and reputable insurers with coverage in at least comparable to that presently provided the amount or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, amounts as prescribed by the Insurance Policies and which provides the Indemnitee with substantially the same coverage provided rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are accorded to the most favorably insured of the Company’s Corporation's directors or officers; provided, howeveras the case may be ("Comparable D&O Insurance") unless, if, in the then reasonable business judgment of the Board of Directors determines in good faith thatof the Corporation as it may exist from time to time, either (xi) the premium cost for such insurance Insurance Policies or Comparable D&O Insurance is substantially materially disproportionate to the amount of coveragecoverage provided, or (yii) the coverage provided by such insurance Insurance Policies or Comparable D&O Insurance is so limited by exclusions that there is insufficient benefit from provided by such insurance, then director and in that event, the Company shall not be required to maintain such officer liability insurance; provided furtherprovided, however, that if, after a Change in Control, the event that the Board of Directors determines that the Company shall not be required to maintain makes such insurancea determination, the Company Corporation shall be required provide notice to purchase a “tail” policy which Indemnitee no less than ninety (i90) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or days prior to the date lapse or termination of coverage under the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce Insurance Policies or not provide such coverageComparable D&O Insurance.
(c) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has director and officer liability insurance in effect, the Corporation shall give prompt notice of the commencement of such claim, and any Proceeding in which such claim is asserted, to the insurers in accordance with the procedures set forth in the respective policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Corporation under this Agreement.
(d) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Corporation to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Corporation shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation's Certificate of Incorporation or Bylaws, or any insurance policy, contract, agreement or otherwise.
(f) The Corporation's obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, DB04/1003206.0002/11820348.4 employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance The Companies may purchase and maintain a policy or policies providing directors and officers liability of insurance, providing Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officeragainst, and thereafter so long as incurred by, Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, on Indemnitee’s behalf by reason of the fact that Indemnitee served is or was or has agreed to serve as an officer or a director, officer, employee or agent of Chiron Holdings GP, or while serving as a director or officer of Chiron Holdings GP, is or was serving or has agreed to serve at the request of a Company as a director, officer, employee or agent (which, for purposes hereof, shall purchase and maintain include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not a Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. If the Companies have such insurance in effect for at the benefit time the Companies receive from Indemnitee any notice of Indemnitee the commencement of an action, suit or proceeding, the Companies shall give prompt notice of the commencement of such insurance providing (a) coverage at least comparable action, suit or proceeding to that presently provided the insurers in accordance with the procedures set forth in the policy. The Companies shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(b) if such coverage is hereafter changed Subject to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that areSection 10(b), in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee event of any good faith determination to reduce or not provide such coverage.
(c) In payment by the event of payment Companies under this Agreement, the Company Companies shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Companies to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Companies shall be jointly and severally obligated to pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 10(b), the Companies shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and ERISA excise taxes or penalties) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers, including without limitation, under any captive insurance or self-insurance program, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by terms, conditions and/or exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required acquired or otherwise subject to maintain such insurancea change in control and a tail policy of reasonable terms and duration is purchased for actual or alleged pre-closing acts or omissions by Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required acquired or otherwise subject to maintain such insurance, the Company shall a change in control and D&O Insurance will be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) maintained that covers Indemnitee for actions actual or alleged pre-closing acts and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageby Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s non-independent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts actually and reasonably incurred) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (PACIFIC GAS & ELECTRIC Co)
Insurance and Subrogation. (a) To For the extent the Company or an Affiliate duration of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve 's service as a director or officerand/or officer of the Corporation, and thereafter for so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceedingpossible Proceeding or Claim, whether civil, criminal, administrative or investigative, by reason the Corporation shall use commercially reasonable efforts (taking into account the scope and amount of coverage available relative to the cost thereof) to cause to be maintained in effect policies of directors' and officers' liability insurance providing coverage for directors and/or officers of the fact Corporation. The Corporation shall provide Indemnitee with a copy of all directors' and officers' liability insurance applications, binders, policies, declarations, endorsements and other related materials. Without limiting the generality or effect of the two immediately preceding sentences, the Corporation shall not discontinue or significantly reduce the scope or amount of coverage from one policy period to the next (i) without the prior approval thereof by a majority vote of the Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such discontinuation or significant reduction in the scope or amount of coverage is proposed there are no Incumbent Directors, without the prior written consent of Indemnitee served (which consent shall not be unreasonably withheld or delayed). In all policies of directors' and officers' liability insurance obtained by the Corporation, Indemnitee shall be named as an officer or director, the Company shall purchase and maintain insured in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed a manner as to provide any enhanced Indemnitee the same rights or and benefits, subject to the same coverage provided limitations, as are accorded to the Corporation's directors and officers most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurancepolicy. The Corporation may, then and in that event, the Company but shall not be required to, create a trust fund, grant a security interest or use other means, including without limitation a letter of credit, to maintain ensure the payment of such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not amounts as may be required necessary to maintain such insurance, the Company shall be required satisfy its obligations to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions indemnify and omissions occurring on or prior advance Expenses pursuant to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coveragethis Agreement.
(cb) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against other persons or entities (other than Indemnitee, who 's successors). Indemnitee shall execute all papers reasonably required to evidence such rights (all of Indemnitee's reasonable Expenses related thereto to be reimbursed by or, at the option of Indemnitee, advanced by the Corporation.
(c) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and shall do everything to the extent that may be reasonably necessary to secure Indemnitee has otherwise actually received such rightspayment under any insurance policy, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rightscontract, agreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use its commercially reasonable efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A” or better (or, if A.M. Best does not rate the insurance company, an equivalent rating by an equivalent licensed insurance rating organization or agency), providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served is or was or has agreed to serve as a director, officer, employee or agent of the Company, or is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other director or officer of the Company. If the Company has such insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an officer action, suit or directorproceeding, the Company shall purchase and maintain in effect for give prompt notice of the benefit commencement of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided action, suit or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided proceeding to the most favorably insured of insurers in accordance with the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cb) In Subject to Section 10(b), in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 10(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and ERISA excise taxes or penalties) if and to the extent that Indemnitee has otherwise actually received payment of such amounts under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (BrightView Holdings, Inc.)
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A-” or better (or, if A.M. Best does not rate the insurance company, an equivalent rating by an equivalent licensed insurance rating organization or agency), providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other director or officer of the Company. Notwithstanding the foregoing, the Company shall purchase and have no obligation to obtain or maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith thatthat such insurance is not reasonably available, either (x) if the premium cost costs for such insurance is substantially are disproportionate to the amount of coveragethe coverage provided, or (y) if the coverage provided by such insurance is so limited by exclusions that there is exclusion so as to provide an insufficient benefit or if the Company otherwise determines in good faith that obtaining or maintaining such insurance is not in the best interests of the Company. If the Company has such insurance in effect at the time the Company receives from such insuranceIndemnitee any notice of the commencement of an action, then and in that eventsuit or proceeding, the Company shall not be required to maintain give prompt notice of the commencement of such insurance; provided furtheraction, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on suit or prior proceeding to the date of insurers in accordance with the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cb) In Subject to Section 9(b), in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 9(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, penalities and amounts paid in settlement, and excise taxes or penalties relating to the Employee Retirement Income Security Act of 1974, as amended) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To If, at the extent time the Company receives notice of a claim hereunder, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or an Affiliate desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officerunder this Agreement.
(b) The Company represents hereby acknowledges that it presently Indemnitee has in force and effect directors and officers liability or may from time to time obtain certain rights to indemnification, advancement of expenses and/or insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against provided by one or incurred by Indemniteemore third parties (collectively, the “Third-Party Indemnitors”). The Company hereby agrees that, so long as with respect to the matters covered by the balance of this Agreement, it is the indemnitor of first resort (i.e., its obligations to Indemnitee shall continue are primary and any obligation of the Third-Party Indemnitors to serve as a director advance expenses or officerto provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), and thereafter so long as that the Company will not assert that the Indemnitee must seek expense advancement or reimbursement, or indemnification, from any Third-Party Indemnitor before the Company must perform its expense advancement and reimbursement, and indemnification obligations, under this Agreement. No advancement or payment by the Third-Party Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company under this Agreement shall affect the foregoing. The Third-Party Indemnitors shall be subject subrogated to any possible claim the extent of such advancement or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason payment to all of the fact that rights of recovery which Indemnitee served as an officer or director, would have had against the Company shall purchase and maintain in effect under this Agreement if the Third-Party Indemnitors had not advanced or paid any amount to or on behalf of Indemnitee. If for the benefit any reason a court of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors competent jurisdiction determines that the Company shall Third-Party Indemnitors are not be required entitled to maintain such insurancethe subrogation rights described in the preceding sentence, the Third-Party Indemnitors shall have a right of contribution by the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date Third-Party Indemnitors with respect to any advance or payment by the Third-Party Indemnitors to or on behalf of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageIndemnitee.
(c) In Subject to Section 8.02(b), in the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rights.
(d) Subject to Section 8.02(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable (or for which advancement is provided) hereunder if and to the extent that Indemnitee has actually received such payment under any insurance policy or other indemnity provision.
Appears in 1 contract
Insurance and Subrogation. (a) To The Corporation represents that it currently has in effect the extent the Company or an Affiliate of the Company maintains an insurance following policy or policies providing directors of director and officers officer liability insurance, insurance (the “Insurance Policies”) which names or covers Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.as an insured:
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending is a party or completed proceeding, whether civil, criminal, administrative or investigativeis threatened to be made a party to any Proceeding, by reason of the fact that Indemnitee served as an is or was a director or officer of the Corporation, or directoris or was serving in any of said other capacities at the request of the Corporation, the Company Corporation shall purchase and be required to maintain the Insurance Policies in effect for the benefit or to obtain policies of Indemnitee such directors’ and officers’ liability insurance providing (a) from established and reputable insurers with coverage in at least comparable to that presently provided the amount or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, amounts as prescribed by the Insurance Policies and which provides the Indemnitee with substantially the same coverage provided rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are accorded to the most favorably insured of the CompanyCorporation’s directors or officers; provided, howeveras the case may be (“Comparable D&O Insurance”) unless, if, in the then reasonable business judgment of the Board of Directors determines in good faith thatof the Corporation as it may exist from time to time, either (xi) the premium cost for such insurance Insurance Policies or Comparable D&O Insurance is substantially materially disproportionate to the amount of coveragecoverage provided, or (yii) the coverage provided by such insurance Insurance Policies or Comparable D&O Insurance is so limited by exclusions that there is insufficient benefit from provided by such insurance, then director and in that event, the Company shall not be required to maintain such officer liability insurance; provided furtherprovided, however, that if, after a Change in Control, the event that the Board of Directors determines that the Company shall not be required to maintain makes such insurancea determination, the Company Corporation shall be required provide notice to purchase a “tail” policy which Indemnitee no less than ninety (i90) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or days prior to the date lapse or termination of coverage under the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce Insurance Policies or not provide such coverageComparable D&O Insurance.
(c) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has director and officer liability insurance in effect, the Corporation shall give prompt notice of the commencement of such claim, and any Proceeding in which such claim is asserted, to the insurers in accordance with the procedures set forth in the respective policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Corporation under this Agreement.
(d) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Corporation to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Corporation shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation’s Certificate of Incorporation or Bylaws, or any insurance policy, contract, agreement or otherwise.
(f) The Corporation’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Sources: Indemnification Agreement (Tuesday Morning Corp/De)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of that the Company maintains an insurance policy or policies providing directors and officers liability insuranceinsurance for directors, officers, employees, agents or fiduciaries of the Company or for individuals serving at the request of the Company as directors, officers, partners, venturers, proprietors, trustees, employees, agents, fiduciaries or similar functionaries of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company such director, officer, employee, agent or Affiliate director fiduciary under such policy or officerpolicies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under the Company’s charter or bylaws or any insurance policy, contract, agreement or otherwise.
(d) If Indemnitee is a director of the Company, the Company will advise the Board of any proposed material reduction in the coverage for Indemnitee to be provided by the Company’s directors’ and officers’ liability insurance policy and will not effect such a reduction with respect to Indemnitee without the prior approval of at least 80% of the Independent Directors of the Company.
(e) If Indemnitee is a director of the Company during the term of this Agreement and if Indemnitee ceases to be a director of the Company for any reason, the Company shall procure a run-off directors’ and officers’ liability insurance policy with respect to claims arising from facts or events that occurred before the time Indemnitee ceased to be a director of the Company and covering Indemnitee, which policy, without any lapse in coverage, will provide coverage for a period of six years after the time Indemnitee ceased to be a director of the Company and will contain terms and conditions (including amount and type of coverage and size of deductibles) that are substantially comparable to the Company’s directors’ and officers’ liability insurance policy that was most protective of Indemnitee in the 12 months preceding the time Indemnitee ceased to be a director of the Company; provided, however, that:
(i) this obligation shall be suspended during the period immediately following the time Indemnitee ceases to be a director of the Company if and only so long as the Company has a directors’ and officers’ liability insurance policy in effect covering Indemnitee for such claims that, if it were a run-off policy, would meet or exceed the foregoing standards, but in any event this suspension period shall end when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding clause (i) (whether because of failure to have a policy meeting the foregoing standards or because a Change in Control occurs), the Company shall procure a run-off directors’ and officers’ liability insurance policy meeting the foregoing standards and lasting for the remainder of the six-year period.
(f) Notwithstanding the preceding clause (e), including the suspension provisions therein, if Indemnitee ceases to be an officer or director of the Company in connection with a Change in Control or at or during the one-year period following the occurrence of a Change in Control, the Company shall procure a run-off directors’ and officers’ liability insurance policy covering Indemnitee and meeting the foregoing standards in clause (e) and lasting for a six-year period upon the Indemnitee’s ceasing to be an officer or director of the Company in such circumstances.
Appears in 1 contract
Insurance and Subrogation. (a) To For the extent the Company or an Affiliate duration of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve ’s service as a director or officerand/or officer of the Corporation, and thereafter for so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceedingpossible Proceeding or Claim, whether civil, criminal, administrative or investigative, by reason the Corporation shall use commercially reasonable efforts (taking into account the scope and amount of coverage available relative to the cost thereof) to cause to be maintained in effect policies of directors’ and officers’ liability insurance providing coverage for directors and/or officer of the fact Corporation. The Corporation shall provide Indemnitee with a copy of all directors’ and officers’ liability insurance applications, binders, policies, declarations, endorsements and other related materials. Without limiting the generality or effect of the two immediately preceding sentences, the Corporation shall not discontinue or significantly reduce the scope or amount of coverage from one policy period to the next (i) without the prior approval thereof by a majority vote of the Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such discontinuation or significant reduction in the scope or amount of coverage is proposed there are no Incumbent Directors, without the prior written consent of Indemnitee served (which consent shall not be unreasonably withheld or delayed). In all policies of directors’ and officers’ liability insurance obtained by the Corporation, Indemnitee shall be named as an officer or director, the Company shall purchase and maintain insured in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed a manner as to provide any enhanced Indemnitee the same rights or and benefits, subject to the same coverage provided limitations, as are accorded to the Corporation’s directors and officers most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurancepolicy. The Corporation may, then and in that event, the Company but shall not be required to, create a trust fund, grant a security interest or use other means, including without limitation a letter of credit, to maintain ensure the payment of such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not amounts as may be required necessary to maintain such insurance, the Company shall be required satisfy its obligations to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions indemnify and omissions occurring on or prior advance Expenses pursuant to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coveragethis Agreement.
(cb) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against other persons or entities (other than Indemnitee, who ’s successors). Indemnitee shall execute all papers reasonably required to evidence such rights (all of Indemnitee’s reasonable Expenses related thereto to be reimbursed by or, at the option of Indemnitee, advanced by the Corporation).
(c) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and shall do everything to the extent that may be reasonably necessary to secure Indemnitee has otherwise actually received such rightspayment under any insurance policy, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rightscontract, agreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee ▇▇▇▇▇▇▇▇▇▇ served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rights.
Appears in 1 contract
Sources: Indemnification Agreement (DiaMedica Therapeutics Inc.)
Insurance and Subrogation. (a) To The Corporation represents that it currently has in effect the extent the Company or an Affiliate of the Company maintains an insurance following policy or policies providing directors of director and officers officer liability insurance, insurance (the “Insurance Policies”) which names or covers Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any as an insured: Carolina Casualty Insurance Company or Affiliate director or officer.61065021 $ 1,000,000 $ 25,000
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending is a party or completed proceeding, whether civil, criminal, administrative or investigativeis threatened to be made a party to any Proceeding, by reason of the fact that Indemnitee served as an is or was a director or officer of the Corporation, or directoris or was serving in any of said other capacities at the request of the Corporation, the Company Corporation shall purchase and be required to maintain the Insurance Policies in effect for the benefit or to obtain policies of Indemnitee such directors’ and officers’ liability insurance providing (a) from established and reputable insurers with coverage in at least comparable to that presently provided the amount or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, amounts as prescribed by the Insurance Policies and which provides the Indemnitee with substantially the same coverage provided rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are accorded to the most favorably insured of the CompanyCorporation’s directors or officers; provided, howeveras the case may be (“Comparable D&O Insurance”) unless, if, in the then reasonable business judgment of the Board of Directors determines in good faith thatof the Corporation as it may exist from time to time, either (xi) the premium cost for such insurance Insurance Policies or Comparable D&O Insurance is substantially disproportionate to the amount of coveragecoverage provided, or (yii) the coverage provided by such insurance Insurance Policies or Comparable D&O Insurance is so limited by exclusions that there is insufficient benefit from provided by such insurance, then director and in that event, the Company shall not be required to maintain such officer liability insurance; provided furtherprovided, however, that if, after a Change in Control, the event that the Board of Directors determines that the Company shall not be required to maintain makes such insurancea determination, the Company Corporation shall be required provide notice to purchase a “tail” policy which Indemnitee no less than ninety (i90) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or days prior to the date lapse or termination of coverage under the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce Insurance Policies or not provide such coverageComparable D&O Insurance.
(c) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has director and officer liability insurance in effect, the Corporation shall give prompt notice of the commencement of such claim, and any Proceeding in which such claim is asserted, to the insurers in accordance with the procedures set forth in the respective policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Corporation under this Agreement.
(d) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Corporation to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Corporation shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation’s Certificate of Incorporation or Bylaws, or any insurance policy, contract, agreement or otherwise.
(f) The Corporation’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently currently has in force effect policy or policies of director and effect directors and officers officer liability insurance on behalf of (the “Insurance Policies”) which names or covers Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so as an insured.
(b) So long as Indemnitee shall continue to serve as a director or officer of the Company, or shall continue at the request of the Company to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending is a party or completed proceeding, whether civil, criminal, administrative or investigativeis threatened to be made a party to any Proceeding, by reason of the fact that Indemnitee served as an is or was a director or officer of the Company, or directoris or was serving in any of said other capacities at the request of the Company, the Company shall purchase and be required to maintain the Insurance Policies in effect for the benefit or to obtain policies of Indemnitee such directors’ and officers’ liability insurance providing (a) from established and reputable insurers with coverage in at least comparable to that presently provided the amount or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, amounts as prescribed by the Insurance Policies and which provides the Indemnitee with substantially the same coverage provided rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are accorded to the most favorably insured of the Company’s directors or officers; provided, howeveras the case may be (“Comparable D&O Insurance”) unless, if, in the then reasonable business judgment of the Board of Directors determines in good faith thatof the Company as it may exist from time to time, either (xi) the premium cost for such insurance Insurance Policies or Comparable D&O Insurance is substantially disproportionate to the amount of coveragecoverage provided, or (yii) the coverage provided by such insurance Insurance Policies or Comparable D&O Insurance is so limited by exclusions that there is insufficient benefit from provided by such director and officer liability insurance; provided, then and however, that in the event that eventthe Board of Directors makes such a determination, the Company shall not be required provide notice to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which Indemnitee no less than thirty (i30) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or days prior to the date lapse or termination of coverage under the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce Insurance Policies or not provide such coverageComparable D&O Insurance.
(c) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such claim, and any Proceeding in which such claim is asserted, to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Company under this Agreement. In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Company’s Certificate of Incorporation or By-Laws, or any insurance policy, contract, agreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required to maintain such insuranceacquired and a tail policy of reasonable terms and duration is purchased for preclosing acts or omissions by Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required to maintain such insuranceacquired and D&O Insurance, with substantially the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains same terms and conditions that are, as the D&O Insurance in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately place prior to such acquisition, will be maintained by the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageacquirer that covers preclosing acts and omissions by Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s nonindependent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (Bright Health Group Inc.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of that the Company maintains an insurance policy or policies providing directors and officers liability insuranceinsurance for directors, officers, employees or agents of the Company or for individuals serving at the request of the Company as directors, officers, partners, members, venturers, proprietors, trustees, employees, agents, fiduciaries or similar functionaries of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company such director, officer, employee, agent or Affiliate director fiduciary under such policy or officerpolicies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this AgreementAgreement for which reimbursement is available under any insurance policy or policies obtained by the Company, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee under such insurance policy or policies, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rights, provided that all Expenses relating to such action shall be borne by the Company.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under the Company’s articles of incorporation or bylaws or any insurance policy, contract, agreement or otherwise.
(d) If Indemnitee is a director of the Company, the Company will advise the Board of any proposed material reduction in the coverage for Indemnitee to be provided by the Company’s directors’ and officers’ liability insurance policy and will not effect such a reduction with respect to Indemnitee without the prior approval of at least 80% of the Independent Directors of the Company.
(e) If Indemnitee is a director of the Company during the term of this Agreement and if Indemnitee ceases to be a director of the Company for any reason, the Company shall procure a run-off directors’ and officers’ liability insurance policy with respect to claims arising from facts or events that occurred before the time Indemnitee ceased to be a director of the Company and covering Indemnitee, which policy, without any lapse in coverage, will provide coverage for a period of six years after the time Indemnitee ceased to be a director of the Company and will provide coverage (including amount and type of coverage and size of deductibles) that are substantially comparable to the Company’s directors’ and officers’ liability insurance policy that was most protective of Indemnitee in the 12 months preceding the time Indemnitee ceased to be a director of the Company; provided, however, that:
(i) this obligation shall be suspended during the period immediately following the time Indemnitee ceases to be a director of the Company if and only so long as the Company has a directors’ and officers’ liability insurance policy in effect covering Indemnitee for such claims that, if it were a run-off policy, would meet or exceed the foregoing standards, but in any event this suspension period shall end when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding clause (i) (whether because of failure to have a policy meeting the foregoing standards or because a Change in Control occurs), the Company shall procure a run-off directors’ and officers’ liability insurance policy meeting the foregoing standards and lasting for the remainder of the six-year period.
(f) Notwithstanding the preceding clause (e) including the suspension provisions therein, if Indemnitee ceases to be an officer or a director of the Company in connection with a Change in Control or at or during the one-year period following the occurrence of a Change in Control, the Company shall procure a run-off directors’ and officers’ liability insurance policy covering Indemnitee and meeting the foregoing standards in clause (e) and lasting for a six-year period upon the Indemnitee’s ceasing to be an officer or a director of the Company in such circumstances.
Appears in 1 contract
Sources: Indemnification Agreement (Crusader Energy Group Inc.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in an officer or directoramount determined by the Board of Directors to be reasonable from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required acquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or omissions by Indemnitee; (v) the Company is to maintain be acquired and D&O Insurance, with substantially the same terms and conditions as the D&O Insurance in place prior to such insuranceacquisition, will be maintained by the acquirer that covers pre-closing acts and omissions by Indemnitee; provided further, however, or (vi) the Company has established an alternative funding mechanism that if, after a Change in Control, the Board of Directors has determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior provides coverage to the date of the Change in Control, Indemnitee that is substantially equivalent (iiior more favorable) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination coverage that would be provided pursuant to reduce or not provide such coveragethe D&O Insurance.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s non-independent directors if Indemnitee is a non- independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise (and, for the avoidance of doubt, in no event shall Indemnitee receive any “double recovery” and if Indemnitee shall, notwithstanding the terms set forth herein, receive a “double recovery,” Indemnitee shall be required to promptly return to the Company or any designee thereof following a written request therefor any portion of any amounts paid thereto that represents such “double recovery” as determined in good faith by the Company).
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance The Companies shall use reasonable best efforts to secure a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A” or better, providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served is or was or has agreed to serve as an officer or a director, officer, employee or agent of the Company Companies, or while serving as a director or officer of the Companies, is or was serving or has agreed to serve at the request of the Companies as a director, officer, employee or agent (which, for purposes hereof, shall purchase include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Companies would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and maintain policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other director or officer of the Companies. If the Companies have such insurance in effect for at the benefit time the Companies receive from Indemnitee any notice of Indemnitee the commencement of an action, suit or proceeding, the Companies shall give prompt notice of the commencement of such insurance providing (a) coverage at least comparable action, suit or proceeding to that presently provided the insurers in accordance with the procedures set forth in the policy. The Companies shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(b) if such coverage is hereafter changed Subject to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that areSection 9(b), in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee event of any good faith determination to reduce or not provide such coverage.
(c) In payment by the event of payment Companies under this Agreement, the Company Companies shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Companies to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Companies shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 9(b), the Companies shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and ERISA excise taxes or penalties) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director, officer, employee or agent of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required to maintain such insuranceacquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or omissions by Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required to maintain such insurance, acquired and D&O Insurance will be maintained by the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) acquirer that covers Indemnitee for actions pre-closing acts and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageby Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s non-independent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(bh) The Company represents that it presently has in force hereby covenants and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in an officer or directoramount determined by the Board of Directors to be reasonable from established and reputable insurers, as more fully described below.
(i) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions so as to provide an insufficient benefit; (iv) the Company is to be acquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or omissions by Indemnitee; (v) the Company is to be acquired and D&O Insurance, with substantially the same terms and conditions as the D&O Insurance in place prior to such acquisition, will be maintained by the acquirer that there covers pre-closing acts and omissions by Indemnitee; or (vi) the Company has established an alternative funding mechanism that the Board of Directors has determines provides coverage to the Indemnitee that is insufficient benefit substantially equivalent (or more favorable) to the coverage that would be provided pursuant to the D&O Insurance.
(j) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s non-independent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from such insuranceIndemnitee any notice of the commencement of an action, then and in that eventsuit or proceeding, the Company shall not be required to maintain give prompt notice of the commencement of such insurance; provided furtheraction, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on suit or prior proceeding to the date of insurers in accordance with the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(ck) In Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(l) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise (and, for the avoidance of doubt, in no event shall Indemnitee receive any “double recovery” and if Indemnitee shall, notwithstanding the terms set forth herein, receive a “double recovery,” Indemnitee shall be required to promptly return to the Company or any designee thereof following a written request therefor any portion of any amounts paid thereto that represents such “double recovery” as determined in good faith by the Company).
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors The Corporation covenants and officers liability insuranceagrees that, as long as Indemnitee shall be covered by such policy or policies in accordance with its or their entitled to indemnity under the terms and of this Agreement, including Section 11(g) hereof, the Corporation, subject only to the maximum extent of the coverage available for any Company or Affiliate director or officer.
sub-part (b) The Company represents that it presently has of this Section 7, shall obtain and maintain in full force and effect directors directors’ and officers officers’ liability insurance on behalf of (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering Indemnitee against certain customary liabilities which may be any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. The Company hereby agrees thatIn all such D&O Insurance policies, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served named as an officer or director, the Company shall purchase and maintain insured in effect for the benefit of a manner that grants Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided rights and benefits as are granted to the most favorably insured of the CompanyCorporation’s directors officers or officers; provideddirectors.
(b) Notwithstanding sub-part (a) of this Section 7, however, ifif the Corporation gives reasonable prior written notice to Indemnitee of the termination of D&O Insurance coverage, the then Board Corporation shall be relieved of Directors determines its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith thatdetermines that such insurance is not reasonably available in such future periods, either (x) or the premium cost costs for such insurance is substantially are disproportionate to the amount of coveragecoverage available, or (y) the available coverage provided by such insurance is so limited by exclusions that there it provides an insufficient benefit, or Indemnitee is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after covered by similar insurance maintained by a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date subsidiary of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageCorporation.
(c) If the Corporation has D&O Insurance in effect at the time it receives a Section 6(a) Notice, the Corporation shall give due and prompt notice of the commencement of such Action, Suit or Proceeding to the insurer(s) in accordance with the procedures set forth in the applicable policy. The Corporation shall thereafter take all necessary or desirable action to cause each insurer to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in accordance with the terms of the applicable policy.
(d) In the event of payment payments by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any such D&O Insurance policy. The Indemnitee shall execute all papers reasonably required and shall do everything that may be take all action reasonably necessary to secure such subrogation rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Corporation to bring suit to enforce such rightsrights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Anything herein or elsewhere to the contrary notwithstanding, the Corporation shall not be liable to make any indemnity payment if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement.
Appears in 1 contract
Insurance and Subrogation. (a) 11.1. To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) 11.2. The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) 11.3. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rights.
Appears in 1 contract
Sources: Indemnification Agreement (Wright Medical Group Inc)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors' and officers' liability insurance ("D&O Insurance") in reasonable amounts from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required to maintain such insuranceacquired and a tail policy of reasonable terms and duration is purchased for pre‑closing acts or omissions by Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required to maintain such insurance, acquired and D&O Insurance will be maintained by the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) acquirer that covers Indemnitee for actions pre‑closing acts and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageby Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company's independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company's non‑independent directors if Indemnitee is not an independent director; (iii) of the Company's officers if Indemnitee is an officer of the Company; or (iv) of the Company's key employees, if Indemnitee is not a director or officer but is a key employee. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such action, suit or proceeding in accordance with the terms of such policy.
(d) Subject to Section 16, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject to Section 16, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (Nu Skin Enterprises Inc)
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use commercially reasonable efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A” or better, providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee or on Indemnitee’s behalf by reason of Indemnitee’s Corporate Status, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall be covered by have coverage terms and policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other director, officer, employee, advisory committee member or agent of the Company. If the Company has such policy insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or policies proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with its the procedures set forth in the applicable policy or their policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms and to the maximum extent of the coverage available for any Company such applicable policy or Affiliate director or officerpolicies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue Subject to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that areSection 9(b), in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee event of any good faith determination to reduce or not provide such coverage.
(c) In payment by the event of payment Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be take all action reasonably necessary to secure such rights, including the execution of such documents as are reasonably necessary to enable the Company effectively to bring an action, suit or proceeding to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses incurred by Indemnitee in connection with such assistance.
(c) Subject to Section 9(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and ERISA excise taxes or penalties) if and to the extent that payment has actually been received by Indemnitee under any insurance policy, contract, agreement or otherwise, except with respect to any excess beyond the amount paid under any insurance policy, contract, agreement or otherwise, except that any such payment made by or on behalf of any Indemnitee-related entity shall not reduce the Company’s obligations under this Agreement; it being understood that, consistent with Section 9(b), if applicable, the Company shall bear full responsibility for jointly indemnifiable claims.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of that the Company maintains an insurance policy or policies providing directors and officers liability insuranceinsurance for directors, officers, employees, agents or fiduciaries of the Company or for individuals serving at the request of the Company as directors, officers, partners, members, venturers, proprietors, trustees, employees, agents, fiduciaries or similar functionaries of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, Indemnitee shall be covered by such policy or policies as a named or described insured in accordance with its or their terms and to the maximum extent of the coverage available for any Company such director, officer, employee, agent or Affiliate director fiduciary under such policy or officerpolicies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Company under this AgreementAgreement for which reimbursement is available under any insurance policy or policies obtained by the Company, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee under such insurance policy or policies, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rights, provided that all Expenses relating to such action shall be borne by the Company.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under the Company’s articles of incorporation or bylaws or any insurance policy, contract, agreement or otherwise.
(d) The Company will advise the Board of any proposed material reduction in the coverage for Indemnitee to be provided by the Company’s directors’ and officers’ liability insurance policy and will not effect such a reduction with respect to Indemnitee without the prior approval of at least 80% of the Independent Directors of the Company.
(e) If Indemnitee ceases to be a director of the Company for any reason, the Company shall procure a run-off directors’ and officers’ liability insurance policy with respect to claims arising from facts or events that occurred before the time Indemnitee ceased to be a director of the Company and covering Indemnitee, which policy, without any lapse in coverage, will provide coverage for a period of six years after the time Indemnitee ceased to be a director of the Company and will provide coverage (including amount and type of coverage and size of deductibles) that are substantially comparable to the Company’s directors’ and officers’ liability insurance policy that was most protective of Indemnitee in the 12 months preceding the time Indemnitee ceased to be a director of the Company; provided, however, that:
(i) this obligation shall be suspended during the period immediately following the time Indemnitee ceases to be a director of the Company if and only so long as the Company has a directors’ and officers’ liability insurance policy in effect covering Indemnitee for such claims that, if it were a run-off policy, would meet or exceed the foregoing standards, but in any event this suspension period shall end when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding clause (i) (whether because of failure to have a policy meeting the foregoing standards or because a Change in Control occurs), the Company shall procure a run-off directors’ and officers’ liability insurance policy meeting the foregoing standards and lasting for the remainder of the six-year period.
(f) Notwithstanding the preceding clause (e) including the suspension provisions therein, if Indemnitee ceases to be a director of the Company in connection with a Change in Control or at or during the one-year period following the occurrence of a Change in Control, the Company shall procure a run-off directors’ and officers’ liability insurance policy covering Indemnitee and meeting the foregoing standards in clause (e) and lasting for a six-year period upon the Indemnitee’s ceasing to be a director of the Company in such circumstances.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance The Fund shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A” or better, providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served is or was or has agreed to serve as a [member of the Board] and/or [insert title of officer], or while serving as a [member of the Board] and/or [insert title of officer], whether or not the Fund would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and policy limits at least as favorable to Indemnitee as the insurance coverage provided to any trustee or officer of the Fund. If the Fund has such insurance in effect at the time the Fund receives from Indemnitee any notice of the commencement of an officer action, suit or directorproceeding, the Company Fund shall purchase and maintain give prompt notice of the commencement of such action, suit or proceeding to the insurers in effect for accordance with the benefit procedures set forth in the policy. The Fund shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee Indemnitee, all amounts payable as a result of such insurance providing (a) coverage at least comparable to that presently provided or proceeding in accordance with the terms of such policy.
(b) if such coverage is hereafter changed Subject to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that areSection 9(b), in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee event of any good faith determination to reduce or not provide such coverage.
(c) In payment by the event of payment Fund under this Agreement, the Company Fund shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Fund to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Fund shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 9(b), the Fund shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and ERISA excise taxes or penalties) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (Sierra Total Return Fund)
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A-” or better (or, if A.M. Best does not rate the insurance company, an equivalent rating by an equivalent licensed insurance rating organization or agency), providing directors the Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, the Indemnitee shall be covered or on the Indemnitee’s behalf by such policy or policies in accordance with its or their terms and to the maximum extent reason of the coverage available for any Company fact that the Indemnitee is or Affiliate director was or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue agreed to serve as a director or officer, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of the Indemnitee’s status as such, whether or not the Company would have the power to indemnify the Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and thereafter so long policy limits at least as favorable to the Indemnitee shall be subject as the insurance coverage provided to any possible claim other director or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason officer of the fact that Company, as applicable. If the Company has such insurance in effect at the time the Company receives from the Indemnitee served as any notice of the commencement of an officer action, suit or directorproceeding, the Company shall purchase and maintain give prompt notice of the commencement of such action, suit or proceeding to the insurers in effect for accordance with the benefit procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee the Indemnitee, all amounts payable as a result of such insurance providing (a) coverage at least comparable to that presently provided or proceeding in accordance with the terms of such policy.
(b) if such coverage is hereafter changed Subject to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that eventSection 10(b), the Company shall not be required liable under this Agreement to maintain such insurance; provided furthermake any payment of amounts otherwise indemnifiable hereunder (including, howeverbut not limited to, that ifjudgments, after a Change fines and amounts paid in Controlsettlement, and excise taxes or penalties relating to the Board Employee Retirement Income Security Act of Directors determines 1974, as amended) if and to the extent that the Company shall not be required to maintain Indemnitee has otherwise actually received such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of payment under this AgreementAgreement or any insurance policy, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemniteecontract, who shall execute all papers required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rightsagreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) To The Corporation represents that it currently has in effect the extent the Company or an Affiliate of the Company maintains an insurance following policy or policies providing directors of director and officers officer liability insurance, insurance (the “Insurance Policies”) which names or covers Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.as an insured:
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending is a party or completed proceeding, whether civil, criminal, administrative or investigativeis threatened to be made a party to any Proceeding, by reason of the fact that Indemnitee served as an is or was a director or officer of the Corporation, or directoris or was serving in any of said other capacities at the request of the Corporation, the Company Corporation shall purchase and be required to maintain the Insurance Policies in effect for the benefit or to obtain policies of Indemnitee such directors’ and officers’ liability insurance providing (a) from established and reputable insurers with coverage in at least comparable to that presently provided the amount or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, amounts as prescribed by the Insurance Policies and which provides the Indemnitee with substantially the same coverage provided rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are accorded to the most favorably insured of the CompanyCorporation’s directors or officers; provided, howeveras the case may be (“Comparable D&O Insurance”) unless, if, in the then reasonable business judgment of the Board of Directors determines in good faith thatof the Corporation as it may exist from time to time, either (xi) the premium cost for such insurance Insurance Policies or Comparable D&O Insurance is substantially disproportionate to the amount of coveragecoverage provided, or (yii) the coverage provided by such insurance Insurance Policies or Comparable D&O Insurance is so limited by exclusions that there is insufficient benefit from provided by such insurance, then director and in that event, the Company shall not be required to maintain such officer liability insurance; provided furtherprovided, however, that if, after a Change in Control, the event that the Board of Directors determines that the Company shall not be required to maintain makes such insurancea determination, the Company Corporation shall be required provide notice to purchase a “tail” policy which Indemnitee no less than ninety (i90) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or days prior to the date lapse or termination of coverage under the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce Insurance Policies or not provide such coverageComparable D&O Insurance.
(c) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has director and officer liability insurance in effect, the Corporation shall give prompt notice of the commencement of such claim, and any Proceeding in which such claim is asserted, to the insurers in accordance with the procedures set forth in the respective policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Corporation under this Agreement.
(d) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Corporation to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation’s Certificate of Incorporation or ByLaws, or any insurance policy, contract, agreement or otherwise.
(f) The Corporation’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers, including without limitation, under any captive insurance or self-insurance program, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by terms, conditions and/or exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required acquired or otherwise subject to maintain such insurancea change in control and a tail policy of reasonable terms and duration is purchased for actual or alleged pre‑closing acts or omissions by Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required acquired or otherwise subject to maintain such insurance, the Company shall a change in control and D&O Insurance will be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) maintained that covers Indemnitee for actions actual or alleged pre‑closing acts and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageby Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s non‑independent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts actually and reasonably incurred) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (PACIFIC GAS & ELECTRIC Co)
Insurance and Subrogation. (a) To For the extent the Company or an Affiliate duration of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve ’s service as a director or officerand/or officer of the Corporation, and thereafter for so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceedingpossible Indemnifiable Claim, whether civil, criminal, administrative or investigative, by reason the Corporation shall use commercially reasonable efforts (taking into account the scope and amount of coverage available relative to the cost thereof) to cause to be maintained in effect policies of directors’ and officers’ liability insurance providing coverage for directors and/or officers of the fact Corporation that is at least substantially comparable in scope and amount to that provided by the Corporation’s current policies of directors’ and officers’ liability insurance. The Corporation shall provide Indemnitee served with a copy of all directors’ and officers’ liability insurance applications, binders, policies, declarations, endorsements and other related materials, and shall provide Indemnitee with a reasonable opportunity to review and comment on the same. Without limiting the generality or effect of the two immediately preceding sentences, the Corporation shall not discontinue or significantly reduce the scope or amount of coverage from one policy period to the next (i) without the prior approval thereof by a majority vote of the Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such discontinuation or significant reduction in the scope or amount of coverage is proposed there are no Incumbent Directors, without the prior written consent of Indemnitee (which consent shall not be unreasonably withheld or delayed). In all policies of directors’ and officers’ liability insurance obtained by the Corporation, Indemnitee shall be named as an officer or director, the Company shall purchase and maintain insured in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed a manner as to provide any enhanced Indemnitee the same rights or and benefits, subject to the same coverage provided limitations, as are accorded to the Corporation’s directors and officers most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurancepolicy. The Corporation may, then and in that event, the Company but shall not be required to, create a trust fund, grant a security interest or use other means, including a letter of credit, to maintain ensure the payment of such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not amounts as may be required necessary to maintain such insurance, the Company shall be required satisfy its obligations to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions indemnify and omissions occurring on or prior advance expenses pursuant to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coveragethis Agreement.
(cb) In the event of payment under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against other persons or entities (other than Indemnitee’s successors), who including any entity or enterprise referred to in clause (i) of the first sentence in the definition of “Indemnifiable Claim” in Article I. Indemnitee shall execute all papers reasonably required and shall do everything that may be reasonably necessary to secure evidence such rightsrights (all of Indemnitee’s reasonable Expenses, including attorneys’ fees and charges, related thereto to be reimbursed by or, at the execution option of Indemnitee, advanced by the Corporation).
(c) The Corporation shall not be liable under this Agreement to make any payment to Indemnitee in respect of any Indemnifiable Losses to the extent Indemnitee has otherwise actually received payment (net of Expenses incurred in connection therewith) under any insurance policy, the Constituent Documents and Other Indemnity Provisions or otherwise (including from any entity or enterprise referred to in clause (i) of the first sentence in the definition of “Indemnifiable Claim” in Article I) in respect of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rightsIndemnifiable Losses otherwise indemnifiable hereunder.
Appears in 1 contract
Insurance and Subrogation. (a) To The Corporation represents that it currently has in effect the extent the Company or an Affiliate of the Company maintains an insurance following policy or policies providing directors of director and officers officer liability insurance, insurance (the “Insurance Policies”) which names or covers Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.as an insured:
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending is a party or completed proceeding, whether civil, criminal, administrative or investigativeis threatened to be made a party to any Proceeding, by reason of the fact that Indemnitee served as an is or was a director or officer of the Corporation, or directoris or was serving in any of said other capacities at the request of the Corporation, the Company Corporation shall purchase and be required to maintain the Insurance Policies in effect for the benefit or to obtain policies of Indemnitee such directors’ and officers’ liability insurance providing (a) from established and reputable insurers with coverage in at least comparable to that presently provided the amount or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, amounts as prescribed by the Insurance Policies and which provides the Indemnitee with substantially the same coverage provided rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are accorded to the most favorably insured of the CompanyCorporation’s directors or officers; provided, howeveras the case may be (“Comparable D&O Insurance”) unless, if, in the then reasonable business judgment of the Board of Directors determines in good faith thatof the Corporation as it may exist from time to time, either (xi) the premium cost for such insurance Insurance Policies or Comparable D&O Insurance is substantially disproportionate to the amount of coveragecoverage provided, or (yii) the coverage provided by such insurance Insurance Policies or Comparable D&O Insurance is so limited by exclusions that there is insufficient benefit from provided by such insurance, then director and in that event, the Company shall not be required to maintain such officer liability insurance; provided furtherprovided, however, that if, after a Change in Control, the event that the Board of Directors determines that the Company shall not be required to maintain makes such insurancea determination, the Company Corporation shall be required provide notice to purchase a “tail” policy which Indemnitee no less than ninety (i90) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or days prior to the date lapse or termination of coverage under the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce Insurance Policies or not provide such coverageComparable D&O Insurance.
(c) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has director and officer liability insurance in effect, the Corporation shall give prompt notice of the commencement of such claim, and any Proceeding in which such claim is asserted, to the insurers in accordance with the procedures set forth in the respective policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Corporation under this Agreement.
(d) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Corporation to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Corporation shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation’s Certificate of Incorporation or ByLaws, or any insurance policy, contract, agreement or otherwise.
(f) The Corporation’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall use its reasonable best efforts to purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A-” or better (or, if A.M. Best does not rate the insurance company, an equivalent rating by an equivalent licensed insurance rating organization or agency), providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and policy limits at least as favorable to Indemnitee as the insurance coverage provided to any other director or officer of the Company. Notwithstanding the foregoing, the Company shall purchase and have no obligation to obtain or maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith thatthat such insurance is not reasonably available, either (x) if the premium cost costs for such insurance is substantially are disproportionate to the amount of coveragethe coverage provided, or (y) if the coverage provided by such insurance is so limited by exclusions that there is exclusion so as to provide an insufficient benefit or if the Company otherwise determines in good faith that obtaining or maintaining such insurance is not in the best interests of the Company. If the Company has such insurance in effect at the time the Company receives from such insuranceIndemnitee any notice of the commencement of an action, then and in that eventsuit or proceeding, the Company shall not be required to maintain give prompt notice of the commencement of such insurance; provided furtheraction, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on suit or prior proceeding to the date of insurers in accordance with the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cb) In Subject to Section 9(b), in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) Subject to Section 9(b), the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and excise taxes or penalties relating to the Employee Retirement Income Security Act of 1974, as amended) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (ZoomInfo Technologies Inc.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required to maintain such insuranceacquired and a tail policy of reasonable terms and duration is purchased for pre‑closing acts or omissions by Indemnitee; provided further, however, that if, after a Change in Control, the Board of Directors determines that or (v) the Company shall not is to be required to maintain such insuranceacquired and D&O Insurance, with substantially the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains same terms and conditions that are, as the D&O Insurance in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately place prior to such acquisition, will be maintained by the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverageacquirer that covers pre‑closing acts and omissions by Indemnitee.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s non‑independent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (Universal Logistics Holdings, Inc.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insuranceIn all D&O Liability Insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served named as an officer or director, the Company shall purchase and maintain insured in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed a manner as to provide any enhanced rights or benefits, Indemnitee the same coverage provided rights and benefits as are accorded to the most favorably insured of the Company’s directors directors, if Indemnitee is a director; or of the Company’s officers; provided, howeverif Indemnitee is not a director of the Company but is an officer. If, ifat the time the Signify Parties receive notice of a claim hereunder, the then Board of Directors determines Company has director and officer liability insurance in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that eventeffect, the Company shall not be required to maintain give prompt notice of such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior Proceeding to the date of insurers in accordance with the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlrespective policies. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The failure or refusal of any good faith determination such insurer to reduce pay any such amount shall not affect or not provide such coverageimpair the obligations of the Signify Parties under this Agreement.
(cb) In the event of any payment under this Agreement, the Company Signify Parties shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Signify Parties to bring suit to enforce such rights.
(c) The Signify Parties shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable (or for which advancement is provided) hereunder if and to the extent that Indemnitee has actually received such payment under any insurance policy or other indemnity provision.
Appears in 1 contract
Insurance and Subrogation. (a) To The Corporation represents that it currently has in effect the extent the Company or an Affiliate of the Company maintains an insurance following policy or policies providing directors of director and officers officer liability insurance, insurance (the "Insurance Policies") which names or covers Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.as an insured:
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending is a party or completed proceeding, whether civil, criminal, administrative or investigativeis threatened to be made a party to any Proceeding, by reason of the fact that Indemnitee served as an is or was a director or officer of the Corporation, or directoris or was serving in any of said other capacities at the request of the Corporation, the Company Corporation shall purchase and be required to maintain the Insurance Policies in effect for the benefit or to obtain policies of Indemnitee such directors' and officers' liability insurance providing (a) from established and reputable insurers with coverage in at least comparable to that presently provided the amount or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, amounts as prescribed by the Insurance Policies and which provides the Indemnitee with substantially the same coverage provided rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are accorded to the most favorably insured of the Company’s Corporation's directors or officers; provided, howeveras the case may be ("Comparable D&O Insurance") unless, if, in the then reasonable business judgment of the Board of Directors determines in good faith thatof the Corporation as it may exist from time to time, either (xi) the premium cost for such insurance Insurance Policies or Comparable D&O Insurance is substantially materially disproportionate to the amount of coveragecoverage provided, or (yii) the coverage provided by such insurance Insurance Policies or Comparable D&O Insurance is so limited by exclusions that there is insufficient benefit from provided by such insurance, then director and in that event, the Company shall not be required to maintain such officer liability insurance; provided furtherprovided, however, that if, after a Change in Control, the event that the Board of Directors determines that the Company shall not be required to maintain makes such insurancea determination, the Company Corporation shall be required provide notice to purchase a “tail” policy which Indemnitee no less than ninety (i90) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or days prior to the date lapse or termination of coverage under the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce Insurance Policies or not provide such coverageComparable D&O Insurance.
(c) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has director and officer liability insurance in effect, the Corporation shall give prompt notice of the commencement of such claim, and any Proceeding in which such claim is asserted, to the insurers in accordance with the procedures set forth in the respective policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Corporation under this Agreement.
(d) In the event of any payment by the Corporation under this Agreement, the Company Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of IndemniteeIndemnitee with respect to any insurance policy, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Corporation to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Corporation shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation's Certificate of Incorporation or Bylaws, or any insurance policy, contract, agreement or otherwise.
(f) Notwithstanding that the Indemnitee may have certain rights to indemnification, advancement of expenses and/or insurance provided by Other Enterprises, the Company: (a) shall be the indemnitor of first resort with respect to which indemnification is required pursuant to this Agreement (i.e., its obligations to the Indemnitee are primary and any obligation of the Other Enterprises to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the Indemnitee are secondary); and (b) shall be required to advance the full amount of expenses incurred by the Indemnitee and shall be liable for the full amount of all Expenses, without regard to any rights the Indemnitee may have against any of the Other Enterprises. No advancement or payment by the Other Enterprises on behalf of the Indemnitee with respect to any claim for which the Indemnitee has sought payment from the Company shall affect the immediately preceding sentence, and the Other Enterprises shall have a right of contribution and/or be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee against the Company. The Company and the Indemnitee agree that the Other Enterprises are express third party beneficiaries of the terms of this Section 7(f).
Appears in 1 contract
Sources: Indemnification Agreement (Tuesday Morning Corp/De)
Insurance and Subrogation. (a) ▇▇▇▇▇▇ Medical Technology, Inc. Employment Agreement — ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Page 72
11.1 To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) 11.2 The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) 11.3 In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents reasonably necessary to enable the Company effectively to bring suit to enforce such rights.
Appears in 1 contract
Insurance and Subrogation. (a) To the extent the The Company or an Affiliate of the Company maintains an insurance shall purchase and maintain a policy or policies of insurance with reputable insurance companies with A.M. Best ratings of “A” or better (or, if A.M. Best does not rate the insurance company, an equivalent rating by an equivalent licensed insurance rating organization or agency), providing directors Indemnitee with coverage for any liability asserted against, and officers liability insuranceincurred by, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on Indemnitee’s behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served is or was or has agreed to serve as an a director, officer, employee or agent of the Company or, while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. Such insurance policies shall have coverage terms and policy limits that are reasonable in scope and amount, as determined by the Company in its reasonable discretion. Notwithstanding the foregoing, the Company shall purchase and have no obligation to obtain or maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith thatthat such insurance is not reasonably available, either (x) if the premium cost costs for such insurance is substantially are disproportionate to the amount of coveragethe coverage provided, or (y) if the coverage provided by such insurance is so limited by exclusions so as to provide an insufficient benefit, or if the Company otherwise determines in good faith that there obtaining or maintaining such insurance is insufficient benefit not in the best interests of the Company. At the time the Company receives from such insuranceIndemnitee any notice of the commencement of an action, then and in that eventsuit or proceeding, the Company shall not be required to maintain give prompt notice of the commencement of such insurance; provided furtheraction, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on suit or prior proceeding to the date of insurers in accordance with the Change in Control, (iii) contains terms and conditions that are, procedures set forth in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Controlpolicy. The Company shall promptly notify Indemnitee thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of any good faith determination to reduce or not provide Indemnitee, all amounts payable as a result of such coverageproceeding in accordance with the terms of such policy.
(cb) In the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses reasonably incurred by Indemnitee in connection with such subrogation.
(c) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement, and ERISA excise taxes or penalties) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (Hain Celestial Group Inc)
Insurance and Subrogation. (a) To the extent that the Company or an Affiliate of the Company Partnership maintains an insurance policy or policies providing directors and officers liability insuranceinsurance for directors, officers, employees, agents or fiduciaries of the General Partner or the Partnership or for individuals serving at the request of the General Partner as directors, officers, partners, members, venturers, proprietors, trustees, employees, agents, fiduciaries or similar functionaries of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company such director, officer, employee, agent or Affiliate director fiduciary under such policy or officerpolicies.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee served as an officer or director, the Company shall purchase and maintain in effect for the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors determines in good faith that, either (x) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (y) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance, then and in that event, the Company shall not be required to maintain such insurance; provided further, however, that if, after a Change in Control, the Board of Directors determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior to the date of the Change in Control, (iii) contains terms and conditions that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination to reduce or not provide such coverage.
(c) In the event of any payment by the Partnership under this Agreement, the Company Partnership shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be reasonably take all action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively Partnership to bring suit to enforce such rights.
(c) The Partnership shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under the Partnership’s certificate of limited partnership, the Partnership Agreement, or any insurance policy, contract, agreement or otherwise.
(d) If Indemnitee is a director of the Company, the Company will advise the Board of any proposed material reduction in the coverage for Indemnitee to be provided by the Partnership’s directors’ liability insurance policy and will not effect such a reduction with respect to Indemnitee without the prior approval of at least 80% of the Independent Directors of the General Partner.
(e) If Indemnitee is a director of the Company during the term of this Agreement and if Indemnitee ceases to be a director of the General Partner for any reason, the Partnership shall procure a run-off directors’ and officers’ liability insurance policy with respect to claims arising from facts or events that occurred before the time Indemnitee ceased to be a director of the General Partner and covering Indemnitee, which policy, without any lapse in coverage, will provide coverage for a period of six years after the time Indemnitee ceased to be a director of the General Partner and will provide coverage (including amount and type of coverage and size of deductibles) that are substantially comparable to the Partnership’s directors’ and officers’ liability insurance policy that was most protective of Indemnitee in the 12 months preceding the time Indemnitee ceased to be a director of the General Partner, provided, however, that:
(i) this obligation shall be suspended during the period immediately following the time Indemnitee ceases to be a director of the General Partner if and only so long as the Partnership has a directors’ and officers’ liability insurance policy in effect covering Indemnitee for such claims that, if it were a run-off policy, would meet or exceed the foregoing standards, but in any event this suspension period shall end when a Change in Control occurs; and
(ii) no later than the end of the suspension period provided in the preceding clause (i) (whether because of failure to have a policy meeting the foregoing standards or because a Change in Control occurs), the Partnership shall procure a run-off directors’ and officers’ liability insurance policy meeting the foregoing standards and lasting for the remainder of the six-year period.
(f) Notwithstanding the preceding clause (e) including the suspension provisions therein, if Indemnitee ceases to be an officer or a director of the General Partner in connection with a Change in Control or at or during the one-year period following the occurrence of a Change in Control, the Partnership shall procure a run-off directors’ and officers’ liability insurance policy covering Indemnitee and meeting the foregoing standards in clause (e) and lasting for a six-year period upon the Indemnitee’s ceasing to be an officer or a director of the General Partner in such circumstances.
Appears in 1 contract
Sources: Indemnification Agreement (Pioneer Southwest Energy Partners L.P.)
Insurance and Subrogation. (a) To the extent the Company or an Affiliate of the Company maintains an insurance policy or policies providing directors and officers liability insurance, Indemnitee shall be covered by such policy or policies in accordance with its or their terms and to the maximum extent of the coverage available for any Company or Affiliate director or officer.
(b) The Company represents that it presently has in force and effect directors and officers liability insurance on behalf of Indemnitee against certain customary liabilities which may be asserted against or incurred by Indemnitee. The Company hereby covenants and agrees that, so long as Indemnitee shall continue to serve as a director or officer, and thereafter so long as Indemnitee shall be subject to any possible claim action, suit or threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, proceeding by reason of the fact that Indemnitee served is or was or has agreed to serve as a director or officer of the Company, or while serving as a director or officer of the Company, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company, subject to Section 4(b), shall promptly obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in an officer or directoramount determined by the Board of Directors to be reasonable from established and reputable insurers, as more fully described below.
(b) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall purchase and have no obligation to obtain or maintain in effect for D&O Insurance if the benefit of Indemnitee such insurance providing (a) coverage at least comparable to that presently provided or (b) if such coverage is hereafter changed to provide any enhanced rights or benefits, the same coverage provided to the most favorably insured of the Company’s directors or officers; provided, however, if, the then Board of Directors Company determines in good faith that, either : (xi) such insurance is not reasonably available; (ii) the premium cost costs for such insurance is substantially are disproportionate to the amount of coverage, or coverage provided; (yiii) the coverage provided by such insurance is so limited by exclusions that there is so as to provide an insufficient benefit from such insurance, then and in that event, benefit; (iv) the Company shall not is to be required acquired and a tail policy of reasonable terms and duration is purchased for pre-closing acts or omissions by Indemnitee; (v) the Company is to maintain be acquired and D&O Insurance, with substantially the same terms and conditions as the D&O Insurance in place prior to such insuranceacquisition, will be maintained by the acquirer that covers pre-closing acts and omissions by Indemnitee; provided further, however, or (vi) the Company has established an alternative funding mechanism that if, after a Change in Control, the Board of Directors has determines that the Company shall not be required to maintain such insurance, the Company shall be required to purchase a “tail” policy which (i) has an effective term of six (6) years from a Change in Control, (ii) covers Indemnitee for actions and omissions occurring on or prior provides coverage to the date of the Change in Control, (iii) contains terms and conditions Indemnitee that are, in the aggregate, no less favorable to Indemnitee than those of the Indemnitee immediately prior is substantially equivalent to the Change in Control. The Company shall promptly notify Indemnitee of any good faith determination coverage that would be provided pursuant to reduce or not provide such coveragethe D&O Insurance.
(c) In all policies of D&O Insurance, Indemnitee shall qualify as an insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured (i) of the Company’s independent directors (as defined by the insurer) if Indemnitee is such an independent director; (ii) of the Company’s nonindependent directors if Indemnitee is not an independent director; or (iii) of the Company’s officers if Indemnitee is an officer of the Company. If the Company has D&O Insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(d) Subject to Section 15, in the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy or any other indemnity agreement covering Indemnitee, who . Indemnitee shall execute all papers required and shall do everything that may be reasonably take all reasonable action necessary to secure such rights, including the execution of such documents reasonably as are necessary to enable the Company effectively to bring suit to enforce such rightsrights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Subject to Section 15, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, without limitation, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
Appears in 1 contract
Sources: Indemnification Agreement (Snap One Holdings Corp.)