Common use of Director and Officer Indemnification and Insurance Clause in Contracts

Director and Officer Indemnification and Insurance. (a) All rights to indemnification existing in favor of the current or former directors, officers and employees of BHI and the BHI Subsidiaries (the “Indemnified Persons”) as provided in the organizational and governing documents of BHI and the BHI Subsidiaries or under indemnification agreements between Indemnified Persons and BHI and the BHI Subsidiaries, in each case as in effect as of the date of this Agreement with respect to matters occurring prior to the Closing (the “Indemnification Obligations”) shall survive the Merger and shall continue in full force and effect as obligations of the Surviving Entity for a period of not less than six (6) years after the Closing unless otherwise required by Law, provided that all rights to indemnification in respect of any claim asserted or made during such period shall continue until the final disposition of such claim. Newco LLC shall guarantee the full performance of the Indemnification Obligations by the Surviving Entity. (b) BHI may prior to Closing obtain and fully pay for “tail” insurance policies for the Persons who, as of the date of this Agreement or as of the Closing Date, are covered by BHI’s existing directors’ and officers’ liability insurance and fiduciary liability insurance with respect to matters existing or occurring at or prior to the Closing (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, that in no event shall BHI expend an amount pursuant to this Section 7.12(b) in excess of 300% of the current annual premium paid by BHI for its existing coverage in the aggregate set forth on Section 7.13(b) of the BHI Disclosure Letter. If for any reason BHI does not obtain and fully pay for such “tail” insurance policies prior to the Closing, Newco or Newco LLC shall maintain director and officer liability insurance policies from a reputable and financially sound carrier through and including the date six (6) years after the Closing with respect to claims arising from facts or events that existed or occurred prior to or at the Closing (including in connection with this Agreement or the transactions or actions contemplated hereby) and such policies shall contain coverage that is at least as favorable to the Persons covered by such existing policies (a complete and accurate copy of which has been made available to Newco); provided, that in no event shall Newco or Newco LLC be required to expend an amount pursuant to this Section 7.12(b) in excess of 300% of the current annual premium paid by BHI for its existing coverage in the aggregate and if such comparable coverage cannot be obtained by paying an aggregate premium equal to or below 300% of the current annual premium, the Surviving Entity shall only be required to maintain as much coverage as can be maintained by paying an aggregate premium equal to 300% of such amount. (c) This Section 7.12 shall survive the consummation of the Merger and is intended to benefit, and shall be enforceable by each Indemnified Person (notwithstanding that such Persons are not parties to this Agreement) and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Person is entitled, whether pursuant to Law, contract or otherwise. If Newco or Newco LLC 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 resulting from 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 Newco or Newco LLC, as the case may be, shall assume the applicable obligations set forth in this Section 7.12. (d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to BHI or any of its Subsidiaries or their respective officers, directors, employees or agents or fiduciaries under any BHI Benefit Plan, it being understood and agreed that the indemnification provided for in this Section 7.12 is not prior to or in substitution for any such claims under any such policies.

Director and Officer Indemnification and Insurance. (a) All The OpCo Buyer agrees that all rights to indemnification indemnification, advancement of expenses and exculpation by the Company now existing in favor of the any current or former directors, officers and employees officers, employees, managers or agents of BHI the Company (each, an “Indemnified Party”), as provided at Law or pursuant to the Organizational Documents of the Company or any employment or indemnification agreement between such Indemnified Party, on the one hand, and the BHI Subsidiaries (Company, on the “Indemnified Persons”) as provided in the organizational and governing documents of BHI and the BHI Subsidiaries or under indemnification agreements between Indemnified Persons and BHI and the BHI Subsidiariesother hand, in each case as in effect as of on the date of this Agreement with respect to matters occurring prior to the Closing (the “Indemnification Obligations”) shall survive the Merger Closing Date and shall continue in full force and effect as in accordance with their respective terms and that the Company will perform and discharge its obligations of thereunder in accordance with the Surviving Entity for a period of not less than six (6) years after the Closing unless otherwise required by Law, provided that all rights to indemnification in respect of any claim asserted or made during such period shall continue until the final disposition of such claim. Newco LLC shall guarantee the full performance of the Indemnification Obligations by the Surviving Entityterms thereof. (b) BHI may prior Prior to Closing the Closing, the Company shall, and the Seller shall cause the Company to, obtain and fully pay for “tail” insurance policies the premium for the Persons who, as extension of the date of this Agreement or as directors’ and officers’ liability coverage of the Closing Date, are covered by BHICompany’s existing directors’ and officers’ liability insurance policies for a claims reporting or discovery period of six (6) years from and fiduciary liability after the Closing from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to matters directors’ and officers’ liability insurance or otherwise reasonably acceptable to the Company (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable in the aggregate as such Company’s existing policies with respect to any actual or occurring alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against an officer, manager, managing member or director of the Company by reason of him or her serving in such capacity that existed or occurred at or prior to the Closing (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, that in no event shall BHI expend an amount pursuant to this Section 7.12(b) in excess of 300% of the current annual premium paid by BHI for its existing coverage in the aggregate set forth on Section 7.13(b) of the BHI Disclosure LetterClosing. If the Company for any reason BHI does not fails to obtain and fully pay for such “tail” insurance policies prior to as of the Closing, Newco or Newco LLC shall maintain director and officer liability insurance policies from for a reputable and financially sound carrier through and including the date period of six (6) years after from the Closing Closing, the OpCo Buyer will, at Sellers cost and expense, maintain in full effect the current directors’ and officers’ liability and fiduciary liability insurance policies covering the Indemnified Parties (but may substitute therefor other policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the Indemnified Parties so long as that substitution does not result in gaps or lapses in coverage) with respect to claims arising from facts matters occurring on or events that existed or occurred prior to or at before the Closing (including in connection with this Agreement or Closing, but the transactions or actions contemplated hereby) and such policies shall contain coverage that OpCo Buyer is at least as favorable to the Persons covered by such existing policies (a complete and accurate copy of which has been made available to Newco); provided, that in no event shall Newco or Newco LLC be not required to expend an amount pursuant to this Section 7.12(b) pay annual premiums in excess of 300250% of the current last annual premium premiums paid by BHI for its existing therefor prior to the date of this Agreement and will purchase the maximum amount of coverage in the aggregate and if such comparable coverage cannot that can be obtained by paying an aggregate premium equal to or below 300% for that amount if the coverage described in this Section 6.05(b) would cost in excess of the current annual premium, the Surviving Entity shall only be required to maintain as much coverage as can be maintained by paying an aggregate premium equal to 300% of such that amount. (c) This Section 7.12 shall survive In the consummation of event that the Merger and is intended to benefit, and shall be enforceable by each Indemnified Person (notwithstanding that such Persons are not parties to this Agreement) and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Person is entitled, whether pursuant to Law, contract or otherwise. If Newco or Newco LLC OpCo Buyer or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall is not be the continuing or surviving corporation or entity resulting from in such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each either such case, proper provision shall be made so that the successors and assigns of Newco the OpCo Buyer or Newco LLCthe Company, as the case may be, shall assume all of the applicable obligations set forth in this Section 7.126.05. (d) Nothing in Following the Closing, the OpCo Buyer will cause the Company to perform all of the obligations of such Company under this Agreement Section 6.05. (e) This Section 6.05 shall survive the consummation of the Closing and continue for the periods specified herein and is intended toto be for the benefit of, shall and to be construed to or shall releaseenforceable by, waive or impair any rights to directors’ the Indemnified Parties and officers’ insurance claims under any policy that is or has been in existence with respect to BHI or any of its Subsidiaries or their respective officersheirs and personal representatives, directors, employees and will be binding on the OpCo Buyer and the Company and their respective successors and assigns. (f) The obligations of the OpCo Buyer and the Company under this Section 6.05 shall not be terminated or agents or fiduciaries under any BHI Benefit Plan, modified in such a manner as to adversely affect Indemnified Party without the consent of such Indemnified Party (it being understood and expressly agreed that the indemnification provided for in Indemnified Parties shall be third-party beneficiaries of this Section 7.12 is not prior to or in substitution for any such claims under any such policies6.05, each of whom may enforce the provisions of this Section 6.05).

Director and Officer Indemnification and Insurance. (a) All Buyer agrees that all rights to indemnification indemnification, advancement of expenses and exculpation by the Company now existing in favor of each Person who is now, or has been at any time prior to the current date hereof or former directorswho becomes prior to the Closing Date, officers and employees an officer or director of BHI and the BHI Subsidiaries (the “Indemnified Persons”) Company, as provided in the organizational and governing documents articles of BHI and association of the BHI Subsidiaries or under indemnification agreements between Indemnified Persons and BHI and the BHI SubsidiariesCompany, in each case as in effect as of on the date of this Agreement with respect Agreement, or pursuant to matters occurring prior to any other agreements in effect on the Closing (date hereof and disclosed in Section 5.07(a) of the “Indemnification Obligations”) Disclosure Schedules, shall survive the Merger Closing Date and shall continue in full force and effect as obligations of in accordance with their respective terms. (b) The Company shall, and Buyer shall cause the Surviving Entity Company to (i) maintain in effect for a period of not less than six five (65) years after the Closing unless otherwise required by Law, provided that all rights to indemnification in respect of any claim asserted or made during such period shall continue until the final disposition of such claim. Newco LLC shall guarantee the full performance of the Indemnification Obligations by the Surviving Entity. (b) BHI may prior to Closing obtain and fully pay for “tail” insurance policies for the Persons who, as of the date of this Agreement or as of the Closing Date, are covered by BHI’s existing if available, the current policies of directors’ and officers’ liability insurance maintained by the Company immediately prior to the Closing Date (provided that the Company may substitute therefor policies, of at least the same coverage and fiduciary liability amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company when compared to the insurance maintained by the Company as of the date hereof), or (ii) obtain as of the Closing Date “tail” insurance policies with a claims period of five (5) years from the Closing Date with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the directors and officers of the Company, in each case with respect to matters existing claims arising out of or occurring at relating to events which occurred on or prior to the Closing Date (including in connection with this Agreement or the transactions or actions contemplated herebyby this Agreement); provided, that . The payment of all premiums and other costs associated with the insurance policies described in no event shall BHI expend an amount pursuant to this Section 7.12(b5.07(b) in excess shall be the sole responsibility of 300% Seller and shall be deemed Company Transaction Expenses. The Company shall, and Buyer shall cause the Company to deliver to Seller complete and correct copies of the current annual premium paid by BHI for its existing coverage in the aggregate set forth on Section 7.13(b) of the BHI Disclosure Letter. If for any reason BHI does not obtain and fully pay for such aforementioned “tail” insurance policies prior to policies, including reasonably detailed evidence of payment of the Closingaforementioned premiums and other costs, Newco or Newco LLC shall maintain director and officer liability insurance policies from a reputable and financially sound carrier through and including promptly following the date six (6) years after the Closing with respect to claims arising from facts or events that existed or occurred prior to or at the Closing (including in connection with this Agreement or the transactions or actions contemplated hereby) and Company’s receipt of such policies shall contain coverage that is at least as favorable to the Persons covered by such existing policies (a complete and accurate copy of which has been made available to Newco); provided, that in no event shall Newco or Newco LLC be required to expend an amount pursuant to this Section 7.12(b) in excess of 300% of the current annual premium paid by BHI for its existing coverage in the aggregate and if such comparable coverage cannot be obtained by paying an aggregate premium equal to or below 300% of the current annual premium, the Surviving Entity shall only be required to maintain as much coverage as can be maintained by paying an aggregate premium equal to 300% payment of such amountamounts. (c) This The obligations of Buyer and the Company under this Section 7.12 shall survive the consummation of the Merger and is intended to benefit, and shall be enforceable by each Indemnified Person (notwithstanding that such Persons are not parties to this Agreement) and their respective heirs and legal representatives. The indemnification provided for herein 5.07 shall not be deemed exclusive terminated or modified in such a manner as to adversely affect any director or officer to whom this Section 5.07 applies without the consent of any other rights such affected director or officer (it being expressly agreed that the directors and officers to which an Indemnified Person is entitledwhom this Section 5.07 applies shall be third- party beneficiaries of this Section 5.07, whether pursuant to Laweach of whom may enforce the provisions of this Section 5.07). (d) In the event Buyer, contract or otherwise. If Newco or Newco LLC the Company or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity resulting from in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each either such case, proper provision shall be made so that the successors and assigns of Newco Buyer or Newco LLCthe Company, as the case may be, shall assume all of the applicable obligations set forth in this Section 7.125.07. (d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to BHI or any of its Subsidiaries or their respective officers, directors, employees or agents or fiduciaries under any BHI Benefit Plan, it being understood and agreed that the indemnification provided for in this Section 7.12 is not prior to or in substitution for any such claims under any such policies.

Director and Officer Indemnification and Insurance. (a) All rights to indemnification existing in favor of the current or former directors, officers and employees of BHI and the BHI Subsidiaries (the “Indemnified Persons”) as provided in the organizational and governing documents of BHI and the BHI Subsidiaries or under indemnification agreements between Indemnified Persons and BHI and the BHI Subsidiaries, in each case as in effect as of the date of this Agreement with respect to matters occurring prior to the Closing (the “Indemnification Obligations”) shall survive the Merger Transactions and shall continue in full force and effect as obligations of the Surviving Entity for a period of not less than six (6) years after the Closing unless otherwise required by Law, provided that all rights to indemnification in respect of any claim asserted or made during such period shall continue until the final disposition of such claim. Newco LLC shall guarantee the full performance of the Indemnification Obligations by the Surviving Entity. (b) BHI may prior to Closing obtain and fully pay for “tail” insurance policies for the Persons who, as of the date of this Agreement or as of the Closing Date, are covered by BHI’s existing directors’ and officers’ liability insurance and fiduciary liability insurance with respect to matters existing or occurring at or prior to the Closing (including in connection with this Agreement or the transactions or actions contemplated hereby); provided, that in no event shall BHI expend an amount pursuant to this Section ‎Section 7.12(b) in excess of 300% of the current annual premium paid by BHI for its existing coverage in the aggregate set forth on Section 7.13(b) of the BHI Disclosure Letter. If for any reason BHI does not obtain and fully pay for such “tail” insurance policies prior to the Closing, Newco or Newco LLC shall maintain director and officer liability insurance policies from a reputable and financially sound carrier through and including the date six (6) years after the Closing with respect to claims arising from facts or events that existed or occurred prior to or at the Closing (including in connection with this Agreement or the transactions or actions contemplated hereby) and such policies shall contain coverage that is at least as favorable to the Persons covered by such existing policies (a complete and accurate copy of which has been made available to Newco); provided, that in no event shall Newco or Newco LLC be required to expend an amount pursuant to this Section ‎Section 7.12(b) in excess of 300% of the current annual premium paid by BHI for its existing coverage in the aggregate and if such comparable coverage cannot be obtained by paying an aggregate premium equal to or below 300% of the current annual premium, the Surviving Entity shall only be required to maintain as much coverage as can be maintained by paying an aggregate premium equal to 300% of such amount. (c) This Section ‎Section 7.12 shall survive the consummation of the Merger Transactions and is intended to benefit, and shall be enforceable by each Indemnified Person (notwithstanding that such Persons are not parties to this Agreement) and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Person is entitled, whether pursuant to Law, contract or otherwise. If Newco or Newco LLC 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 resulting from 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 Newco or Newco LLC, as the case may be, shall assume the applicable obligations set forth in this Section ‎Section 7.12. (d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to BHI or any of its Subsidiaries or their respective officers, directors, employees or agents or fiduciaries under any BHI Benefit Plan, it being understood and agreed that the indemnification provided for in this Section ‎Section 7.12 is not prior to or in substitution for any such claims under any such policies.

Director and Officer Indemnification and Insurance. (a) All Buyer agrees that all rights to indemnification indemnification, advancement of expenses and exculpation by any of the Subsidiary LLCs now existing in favor of each Person who is now, or has been at any time prior to the current date hereof or former directorswho becomes prior to the Closing Date, officers and employees an officer or director of BHI and any of the BHI Subsidiaries (the “Indemnified Persons”) Subsidiary LLCs, as provided in the organizational and governing documents articles of BHI and the BHI Subsidiaries organization or under indemnification agreements between Indemnified Persons and BHI and the BHI Subsidiariesoperating agreement of each Subsidiary LLC, in each case as in effect as of on the date of this Agreement with respect Agreement, or pursuant to matters occurring prior to any other agreements in effect on the Closing (the “Indemnification Obligations”) date hereof, shall survive the Merger Closing Date and shall continue in full force and effect as obligations of the Surviving Entity in accordance with their respective terms. (b) Each Subsidiary LLC shall, and Buyer shall cause each Subsidiary LLC to (i) maintain in effect for a period of not less than six (6) years after the Closing unless otherwise required Date, if available, the current policies of directors' and officers' liability insurance maintained by Law, the respective Subsidiary LLC immediately prior to the Closing Date (provided that all rights any Subsidiary LLC may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to indemnification in respect of any claim asserted or made during such period shall continue until the final disposition of such claim. Newco LLC shall guarantee the full performance directors and officers of the Indemnification Obligations respective Subsidiary LLC when compared to the insurance maintained by such Subsidiary LLC as of the Surviving Entity. date hereof), or (bii) BHI may prior to obtain as of the Closing obtain and fully pay for Date “tail” insurance policies for with a claims period of six (6) years from the Persons whoClosing Date with at least the same coverage and amounts, as and containing terms and conditions that are not less advantageous to the directors and officers of the date of this Agreement or as of the Closing Daterespective Subsidiary LLC, are covered by BHI’s existing directors’ and officers’ liability insurance and fiduciary liability insurance in each case with respect to matters existing claims arising out of or occurring at relating to events which occurred on or prior to the Closing Date (including in connection with this Agreement or the transactions or actions contemplated herebyby this Agreement); provided, that in no event shall BHI expend an amount pursuant to this Section 7.12(b) in excess of 300% of the current annual premium paid by BHI for its existing coverage in the aggregate set forth on Section 7.13(b) of the BHI Disclosure Letter. If for any reason BHI does not obtain and fully pay for such “tail” insurance policies prior to the Closing, Newco or Newco LLC shall maintain director and officer liability insurance policies from a reputable and financially sound carrier through and including the date six (6) years after the Closing with respect to claims arising from facts or events that existed or occurred prior to or at the Closing (including in connection with this Agreement or the transactions or actions contemplated hereby) and such policies shall contain coverage that is at least as favorable to the Persons covered by such existing policies (a complete and accurate copy of which has been made available to Newco); provided, that in no event shall Newco or Newco LLC be required to expend an amount pursuant to this Section 7.12(b) in excess of 300% of the current annual premium paid by BHI for its existing coverage in the aggregate and if such comparable coverage cannot be obtained by paying an aggregate premium equal to or below 300% of the current annual premium, the Surviving Entity shall only be required to maintain as much coverage as can be maintained by paying an aggregate premium equal to 300% of such amount. (c) This Section 7.12 shall survive the consummation The obligations of Buyer and each of the Merger and is intended to benefit, and shall be enforceable by each Indemnified Person (notwithstanding that such Persons are not parties to Subsidiary LLCs under this Agreement) and their respective heirs and legal representatives. The indemnification provided for herein Section 5.07 shall not be deemed exclusive terminated or modified in such a manner as to adversely affect any director or officer to whom this Section 5.07 applies without the consent of any other rights such affected director or officer (it being expressly agreed that the directors and officers to which an Indemnified Person is entitledwhom this Section 5.07 applies shall be third-party beneficiaries of this Section 5.07, whether pursuant to Laweach of whom may enforce the provisions of this Section 5.07). (d) In the event Buyer, contract or otherwise. If Newco or Newco LLC each of the Subsidiary LLCs or any of its their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity resulting from in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each either such case, proper provision shall be made so that the successors and assigns of Newco Buyer or Newco such Subsidiary LLC, as the case may be, shall assume all of the applicable obligations set forth in this Section 7.125.07. (d) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to BHI or any of its Subsidiaries or their respective officers, directors, employees or agents or fiduciaries under any BHI Benefit Plan, it being understood and agreed that the indemnification provided for in this Section 7.12 is not prior to or in substitution for any such claims under any such policies.