Liability of the Member Manager and Officers Indemnification Clause Samples
Liability of the Member Manager and Officers Indemnification
Directors’ and Officers’ Indemnification (a) The Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in the Articles of Incorporation and Bylaws of the Target, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who at any time prior to the Effective Time were directors, officers or employees of the Target or any of the Subsidiaries, unless such modification shall be required by Delaware Law. (b) From and after the Effective Time, Acquiror and the Surviving Corporation shall indemnify, defend and hold harmless each person who is now, or has been at any time prior to the date of this Agreement or who becomes prior to the Effective Time, an officer, director, employee or agent of the Target or any of the Subsidiaries (collectively, the "INDEMNIFIED PARTIES") against all losses, expenses (including reasonable attorneys' fees), claims, damages, liabilities or amounts that are paid in settlement of, with the approval of the Surviving Corporation (which approval shall not unreasonably be withheld), or otherwise in connection with, any threatened or actual claim, action, suit, proceeding or investigation (a "CLAIM"), based in whole or in part on or arising in whole or in part out of the fact that the Indemnified Party (or the person controlled by the Indemnified Party) is or was a director, officer, employee or agent of the Target or any of the Subsidiaries and pertaining to any matter existing or arising out of actions or omissions occurring at or prior to the Effective Time (including, without limitation, any Claim arising out of this Agreement or any of the transactions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time, in each case to the fullest extent permitted under Delaware Law and by Target's Certificate of Incorporation and Bylaws as in effect on the date hereof, and shall pay any expenses, as incurred, in advance of the disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted under Delaware Law and by Target's Certificate of Incorporation and Bylaws as in effect on the date hereof. Without limiting the foregoing, in the event any such Claim is brought against any of the Indemnified Parties, Acquiror or the Surviving Corporation shall have the right to assume the defense thereof and neither Acquiror nor the Surviving Corporation shall be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Acquiror or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises that there are substantive issues that raise conflicts of interest between Acquiror or the Surviving Corporation and the Indemnified Parties, such Indemnified Parties may retain counsel satisfactory to them and which shall be reasonably satisfactory to Acquiror and the Surviving Corporation and they shall pay all reasonable fees and expenses of such counsel for such Indemnified Parties. The Indemnified Parties, or the Acquiror and the Surviving Corporation, as the case may be, shall use all reasonable efforts to assist in the defense of any such Claim, provided that the Acquiror and the Surviving Corporation shall not be liable for any settlement effected without their written consent, which consent, however, shall not be unreasonably withheld. The Acquiror and the Surviving Corporation shall be obligated pursuant to this paragraph to pay only one law firm to represent the Indemnified Parties with respect to each such Claim unless there is, as determined by counsel to the Indemnified Parties, under applicable standards of professional conduct, a conflict or a reasonable likelihood of a conflict on any significant issue between the positions of any two or more Indemnified Parties at the expense of the Acquiror and the Surviving Corporation. (c) Prior to the Effective Time, the Target shall, and after the Effective Time Surviving Corporation and the Acquiror shall, to the fullest extent permitted by Delaware Law, make reasonable advances to the Indemnified parties to cover expenses for which such Indemnified Parties would otherwise be entitled to indemnification pursuant to this Section 6.06, provided, however, that the person to whom the expenses are advanced provides an undertaking to repay such advances if it is determined that such person is not entitled to indemnification. (d) Acquiror shall maintain in effect for three years from the Effective Time, the current directors' and officers' liability insurance policies maintained by the Target (provided that Acquiror may substitute therefor policies of at least the same coverage containing terms and conditions which are not materially less favorable) with respect to matters occurring prior to the Effective Time; provided, however, that in the event that the annual premium for such coverage is more than 2.0 times the annual premium for such coverage as of the date hereof, the Acquiror shall only be obligated to maintain the best coverage that reasonably can be obtained for an annual premium equal to the 2.0 times the annual premium in effect as of the date hereof; PROVIDED, FURTHER, that in no event shall the policy limits of such coverage be less than 2/3 of the policy limits currently in effect. (e) In the event the Surviving Corporation or the Acquiror consolidates, liquidates, dissolves or merges into another entity (which events are in no way prohibited by this Agreement), proper provisions shall be made so that the successor and assigns of the Surviving Corporation and the Acquiror satisfy their respective obligations under this Section 6.06.
Liability Exculpation and Indemnification 37 Section 10.1. Liability........................................................................... 37 Section 10.2. Exculpation......................................................................... 37 Section 10.3. Indemnification..................................................................... 38 Section 10.4. Expenses ........................................................................... 38
Limitation of Liability of the Adviser; Indemnification The Adviser (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Adviser, including without limitation its general partner and the Administrator) shall not be liable to the Corporation for any action taken or omitted to be taken by the Adviser in connection with the performance of any of its duties or obligations under this Agreement or otherwise as an investment adviser of the Corporation, except to the extent specified in Section 36(b) of the Investment Company Act concerning loss resulting from a breach of fiduciary duty (as the same is finally determined by judicial proceedings) with respect to the receipt of compensation for services, and the Corporation shall indemnify, defend and protect the Adviser (and its officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Adviser, including without limitation its general partner and the Administrator, each of whom shall be deemed a third party beneficiary hereof) (collectively, the “Indemnified Parties”) and hold them harmless from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) incurred by the Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of the Corporation or its security holders) arising out of or otherwise based upon the performance of any of the Adviser’s duties or obligations under this Agreement or otherwise as an investment adviser of the Corporation. Notwithstanding the preceding sentence of this Paragraph 9 to the contrary, nothing contained herein shall protect or be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties to indemnification in respect of, any liability to the Corporation or its security holders to which the Indemnified Parties would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of the Adviser’s duties or by reason of the reckless disregard of the Adviser’s duties and obligations under this Agreement (as the same shall be determined in accordance with the Investment Company Act and any interpretations or guidance by the Securities and Exchange Commission or its staff thereunder).
Directors’ and Officers’ Indemnification and Insurance (a) For a period ending on the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, the By-laws of the Company shall contain provisions no less favorable with respect to indemnification or the liability of directors than are set forth in Article VII, Section 7.2 of the By-laws of the Company, and such provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who at or prior to the time of the consummation of the Offer were directors, officers, fiduciaries or agents of the Company, unless such modification shall be required by Law. (b) The Company shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer, fiduciary and agent of the Company and each of its subsidiaries (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the date hereof), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission occurring before or after the date hereof. In the event of any such claim, action, suit, proceeding or investigation, (i) the Company shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Company, promptly after statements therefor are received and (ii) the Company shall cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). (c) The Company shall maintain until the earlier of (i) the sixth anniversary of the Effective Time and (ii) the Liquidation Date, if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are not less favorable). (d) In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Company shall assume the obligations set forth in this Section 5. (e) Purchaser shall use all reasonable efforts to cause the Company to perform all of its obligations under this Section 5. (f) This Section 5 is intended for the benefit of the Indemnified Parties and their respective heirs, executors and personal representatives and shall be enforceable by them as third party beneficiaries hereof.
Director and Officer Liability and Indemnification (a) For a period of six (6) years after the Closing, Buyer shall not, and shall ensure that Newco, the Company and the Sold Subsidiaries do not, amend, repeal or modify any provision in Newco's, the Company's or the Sold Subsidiaries' certificate of incorporation or bylaws relating to the exculpation, indemnification or advancement of expenses of any officers and directors in any way that diminishes or adversely affects the exculpation, indemnification or advancement of expenses provided therein as it applies to any Persons serving in such capacity prior to the Closing Date (unless required by law), it being the intent of the parties that the officers and directors of Newco, the Company and the Sold Subsidiaries who were officers and directors prior to the Closing (each, a "D&O Indemnified Person") shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent provided for under Newco's, the Company's and the Sold Subsidiaries' certificate of incorporation, bylaws or other applicable organizational documents as of immediately prior to the Closing. (b) In addition to the other rights provided for in this Section 7.06 and not in limitation thereof, from and after the Closing, Buyer shall, and shall cause Newco, the Company and the Sold Subsidiaries (each, a "D&O Indemnifying Party") to, to the fullest extent permitted under the certificate of incorporation, bylaws or other applicable organizational documents, (i) indemnify and hold harmless (and release from any liability to Buyer, Newco, the Company or the Sold Subsidiaries) the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (collectively, "D&O Costs") in respect of any Threatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such Person is or was a director or officer of Newco, the Company or the Sold Subsidiaries and arising out of acts or omissions occurring on or prior to the Closing (including in respect of acts or omissions in connection with this Agreement and the transactions contemplated thereby) (a "D&O Indemnifiable Claim") and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the D&O Indemnified Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such D&O Indemnified Person is not entitled to indemnification. Any D&O Indemnifiable Claims shall continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this Section 7.06(b), "D&O Expenses" means attorneys' fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in any D&O Indemnifiable Claim, in each case solely to the extent such amounts would be subject to indemnification, reimbursement or advancement under the certificate of incorporation, bylaws or other applicable organizational documents, but shall exclude losses, claims, damages, judgments or amounts paid in settlement (which items are, for the avoidance of doubt, included in the definition of D&O Costs).