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

Director and Officer Liability and Indemnification. (i) Buyer shall cause the limited liability company agreement, certificate of incorporation, By-Laws, and/or other constitutive documents of the Company and each of its Subsidiaries (collectively, the “Constitutive Documents”) to contain the provisions with respect to indemnification set forth in the Constitutive Documents on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of not less than six (6) years after the Closing in any manner that would adversely affect the rights thereunder of individuals who at any time prior to the Closing were members, officers, directors, managers or employees of the Seller, the Company or any of their respective Subsidiaries in respect of actions or omissions occurring at or prior to the Closing Date (including without limitation the transactions contemplated by this Agreement), unless such modification is required by law. (ii) Buyer shall cause the Company and its Subsidiaries to maintain in effect for six years from the Closing Date directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy (which, for the avoidance of doubt, includes members of the Seller’s board of managers) on terms comparable to such existing insurance coverage; provided that in the event that any claim is brought under any such policy prior to the six year anniversary of the Closing Date, such directors’ and officers’ liability insurance policy shall be maintained until final disposition thereof; provided, however, that during such period, the Company shall not be required to maintain any coverage in excess of the amount that can be obtained for the remainder of such period for an annual premium of 150% of the current annual premium paid by the Company for its existing directors’ and officers’ liability insurance coverage as of the date hereof.

Director and Officer Liability and Indemnification. (ia) For a period of six years after the Closing, Buyer shall will, and will cause the limited liability company agreement, certificate of incorporation, By-Laws, and/or other constitutive documents of the Company and each of its the Subsidiaries (collectivelyto, the “Constitutive Documents”) cause their respective Governing Documents to contain the provisions no less favorable with respect to the limitation or elimination of liability, indemnification set forth and advancement of expenses for directors and officers (unless required by Law) than those included in the Constitutive Documents on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of not less than six (6) years after the Closing in any manner that would adversely affect the rights thereunder of individuals who at any time such documents immediately prior to the Closing were membersClosing. (b) In addition to the other rights provided for in this Section 7.02 and not in limitation thereof, officersfrom and after the Closing, directors, managers no former or employees current director or officer of the Seller, the Company or any of their respective its Subsidiaries in respect will be personally liable to the Company or its Subsidiaries for monetary damages for breach of actions fiduciary duty as a director or officer for any acts or omissions occurring any time prior the Closing, except to the extent a judgment or other final adjudication adverse to such director or officer establishes that (i) his or her acts or omissions were in bad faith or involved intentional misconduct or (ii) that his or her acts fall within the categories set forth in Section 102(b)(7) of the DGCL. (c) At the Closing, Buyer will, or will cause the Company to obtain, maintain and fully pay for irrevocable “tail” insurance policies naming the D&O Indemnified Persons as direct beneficiaries with a claims period of at least six years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Closing Date (including without limitation Date. Each of Buyer and Seller will pay at Closing one half of the transactions contemplated by this Agreement)insurance premium required to purchase such irrevocable “tail” insurance policies. Buyer will not, unless such modification is required by law. (ii) Buyer shall cause and will not permit the Company and its Subsidiaries to maintain in effect for six years from the Closing Date directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s directors’ and officers’ liability to, cancel or change such insurance policy (which, for the avoidance of doubt, includes members of the Seller’s board of managers) on terms comparable to such existing insurance coverage; provided that in the event that any claim is brought under any such policy prior to the six year anniversary of the Closing Date, such directors’ and officers’ liability insurance policy shall be maintained until final disposition thereof; provided, however, that during such period, the Company shall not be required to maintain any coverage in excess of the amount that can be obtained for the remainder of such period for an annual premium of 150% of the current annual premium paid by the Company for its existing directors’ and officers’ liability insurance coverage as of the date hereofrespect.

Director and Officer Liability and Indemnification. (ia) Buyer shall cause the limited liability company agreement, certificate of incorporation, By-Laws, and/or other constitutive documents of the Company and each of its Subsidiaries (collectively, the “Constitutive Documents”) to contain the provisions with respect to indemnification set forth in the Constitutive Documents on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of not less than six (6) years after the Closing Closing, Buyers will not, and will not permit the Group Companies or Blocker to, amend, repeal or modify any provision in the Group Companies’ or Blocker’s operating agreement, certificate or articles of amendment, bylaws or other equivalent governing documents, or in any manner contract or agreement, relating to the exculpation, indemnification or advancement of expenses of any officers and directors (each, a “D&O Indemnified Person”) (unless required by law or other Governmental Authority), it being the intent of the Parties that would adversely affect the rights thereunder officers and directors of individuals who at any time the Group Companies and Blocker will continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the law. (b) At or prior to the Closing were members, officers, directors, managers or employees of the SellerClosing, the Company will obtain at its own expense a prepaid irrevocable “tail” insurance policy (the “D&O Tail”) naming the D&O Indemnified Persons as direct beneficiaries with a claims period of at least six (6) years from the Closing Date from an insurance carrier with the same or any of their respective Subsidiaries better credit rating as the Group Companies’ current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope at least as favorable as the Group Companies’ existing policies with respect of actions to matters existing or omissions occurring at or prior to the Closing Date (including without limitation Date. Buyers will not, and will cause the transactions contemplated by this Agreement)Group Companies and Blocker to not, unless cancel or change such modification is required by lawinsurance policies in any respect. (iic) Buyer shall cause With respect to any right to indemnification or advancement for acts or omissions occurring prior to or at the Company Closing, the Group Companies and its Subsidiaries to maintain in effect Blocker will be the indemnitors of first resort, responsible for six years all such indemnification and advancement that any D&O Indemnified Person may have from the Closing Date directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s directors’ and officers’ liability insurance policy (which, for the avoidance of doubt, includes members any direct or indirect shareholder or equity holder of the Seller’s board Group Companies or Blocker (or any Affiliate of managerssuch shareholder or equity holder) and without right to seek subrogation, indemnity or contribution. Each of the Group Companies, Blocker and Buyers further agree that no advance or prepayment by any party other than the Group Companies and Blocker as the primary indemnitors on terms comparable behalf of any D&O Indemnified Person with respect to any claim for which such existing insurance coverage; provided that in D&O Indemnified Person has sought indemnification from any of the event Group Companies and Blocker will affect the foregoing and that any claim is brought under such secondary indemnitor will not have a right of contribution and/or be subrogated to the extent of such advancement or payment to all the rights of recovery of the D&O Indemnified Person against the Group Companies or Blocker, and each of the Group Companies and Blocker hereby irrevocably waives, relinquishes and releases any such policy prior to secondary indemnitor from any and all claims against the six year anniversary secondary indemnitors for contribution, subrogation or any other recovery of the Closing Date, such directors’ and officers’ liability insurance policy shall be maintained until final disposition any kind in respect thereof; provided, however, that during such period, the Company shall . (d) The obligations under this Section 7.07(d) will not be required terminated or modified in such a manner as to maintain adversely affect any coverage in excess of D&O Indemnified Person to whom this Section 7.07(d) applies without the amount that can be obtained for the remainder consent of such period for an annual premium D&O Indemnified Person (it being expressly agreed that the D&O Indemnified Persons to whom this Section 7.07(d) applies will be third-party beneficiaries of 150% of this Section 7.07(d) and will be entitled to enforce the current annual premium paid by the Company for its existing directors’ and officers’ liability insurance coverage as of the date hereofcovenants contained herein).

Director and Officer Liability and Indemnification. (ia) Buyer shall cause the limited liability company agreement, certificate of incorporation, By-Laws, and/or other constitutive documents of the Company and each of its Subsidiaries (collectively, the “Constitutive Documents”) to contain the provisions with respect to indemnification set forth in the Constitutive Documents on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of not less than six (6) years after the Closing Closing, Buyer shall not, and shall not permit the Company Group to, amend, repeal or modify any provision in any member of the Company Group’s certificate of formation, limited liability company agreement, or other equivalent governing documents, or in any indemnification agreement provided to Buyer between a member of the Company Group and any current or former officers, directors or managers of any member of the Company Group (each, a “D&O Indemnified Person”), in each case existing as of the date hereof in a manner that would adversely affect the rights thereunder to exculpation, indemnification or advancement of individuals who at expenses of any time prior D&O Indemnified Person (unless required by Law), it being the intent of the Parties that the D&O Indemnified Persons will continue to be entitled to such exculpation, indemnification and advancement of expenses to the Closing were members, officers, directors, managers or employees full extent of the SellerLaw. (b) Buyer shall, or shall cause the Company Group to, at Buyer’s expense, at the Closing, obtain and fully pay for, and following the Closing maintain in effect, irrevocable “tail” insurance policies naming the D&O Indemnified Persons as direct beneficiaries (with respect to matters existing or any of their respective Subsidiaries in respect of actions or omissions occurring at or prior to the Closing Date Closing) with a coverage period of at least six (including without limitation the transactions contemplated by this Agreement), unless such modification is required by law. (ii6) Buyer shall cause the Company and its Subsidiaries to maintain in effect for six years from the Closing Date from an insurance carrier with the same or better credit rating as the Company Group’s current insurance carrier with respect to directors’ and officers’ liability insurance covering those persons who are currently covered by in an amount and scope of coverage at least as favorable as the CompanyCompany Group’s directors’ existing policies (the “Tail Policy”). Buyer shall not, and officers’ liability shall cause the Company Group not to, cancel or change such insurance policy policies in any respect. (which, for the avoidance of doubt, includes members of the Seller’s board of managersc) on terms comparable to such existing insurance coverage; provided that in In the event that any claim is brought under any such policy prior to the six year anniversary all or substantially all of the Closing Date, such directors’ and officers’ liability insurance policy shall be maintained until final disposition thereof; provided, however, that during such period, equity or assets of any member of the Company shall not be required to maintain Group are sold, or any coverage in excess member of the amount Company Group merges or otherwise combines with another Person, in each case whether in one transaction or a series of transactions, then Buyer and the Company Group will, in each such case, ensure that can be obtained for the remainder of such period for an annual premium of 150% successors and assigns of the current annual premium paid by Company Group, as applicable, assume the obligations set forth in this Section 7.02. The provisions of this Section 7.02(c) will apply to all of the successors and assigns of the Company for its existing directors’ and officers’ liability insurance coverage as of the date hereofGroup.

Director and Officer Liability and Indemnification. (ia) Buyer shall cause the limited liability company agreement, certificate of incorporation, By-Laws, and/or other constitutive documents of the Company and each of its Subsidiaries (collectively, the “Constitutive Documents”) to contain the provisions with respect to indemnification set forth in the Constitutive Documents on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for For a period of not less than at least six (6) years after from the Closing Date, the Surviving Corporation will not, and Buyer will not permit the Surviving Corporation to, amend, repeal or modify any provision in such Person’s certificate of incorporation, bylaws or in any agreement, relating to the exculpation or indemnification of, or advancement of expenses to, any present (as of immediately prior to the Effective Time) or former director or officer of the Company (each, a “D&O Indemnified Person”) for acts and omissions occurring prior to the Effective Time as in effect immediately prior to the Effective Time in any manner that would adversely affect adverse to any D&O Indemnified Person, and Buyer will cause the rights thereunder of individuals who at any time prior Surviving Corporation to the Closing were members, officers, directors, managers or employees of the Seller, the Company or any of their respective Subsidiaries in respect of actions or omissions occurring at observe and fulfill all such provisions. (b) At or prior to the Closing Date (including without limitation the transactions contemplated by this Agreement)Closing, unless such modification is required by law. (ii) Buyer shall cause the Company will obtain and fully pay for irrevocable “tail” insurance policies naming the D&O Indemnified Persons and any other persons covered by the Company’s and its Subsidiaries to maintain in effect for Subsidiaries’ existing directors’ and officers’ insurance policies, as direct beneficiaries with a claims period of at least six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance covering those persons who are currently covered by in an amount and scope at least as favorable as the Company’s directorsand its Subsidiaries’ existing policies with respect to matters existing or occurring at or before the Effective Time. Buyer and officers’ liability the Surviving Corporation will not, and will cause their Subsidiaries not to, cancel or change such insurance policy policies in any respect. (which, for the avoidance of doubt, includes members of the Seller’s board of managersc) on terms comparable to such existing insurance coverage; provided that in In the event that the Surviving Corporation or any claim of its successors or assigns (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties, rights or assets to any Person, then, in each case, the successors and assigns of such Persons or properties, rights or assets, as the case may be, must expressly assume in writing and be bound by the obligations set forth in this Section 6.05 as a condition of succession of assignment. (d) This Section 6.05 is brought under intended to be for the benefit of each of the D&O Indemnified Persons and may be enforced by any such policy prior D&O Indemnified Person as if such D&O Indemnified Person were a party to this Agreement. The obligations of Buyer and the six year anniversary of the Closing Date, such directors’ and officers’ liability insurance policy shall be maintained until final disposition thereof; provided, however, that during such period, the Company shall Surviving Corporation under this Section 6.05 will not be required terminated or modified in such a manner as to maintain adversely affect any coverage in excess of Person to whom this Section 6.05 applies without the amount that can be obtained for the remainder consent of such period for an annual premium of 150% of the current annual premium paid by the Company for its existing directors’ and officers’ liability insurance coverage as of the date hereofaffected Person.