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

Director and Officer Liability and Indemnification. (a) For a period of six years after the Closing, Buyer will, and will cause the Company and each of the Subsidiaries to, cause their respective Governing Documents to contain provisions no less favorable with respect to the limitation or elimination of liability, indemnification and advancement of expenses for directors and officers (unless required by Law) than those included in such documents immediately prior to the Closing. (b) In addition to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer of the Company or any of its Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach of 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. Each of Buyer and Seller will pay at Closing one half of the insurance premium required to purchase such irrevocable “tail” insurance policies. Buyer will not, and will not permit the Company to, cancel or change such insurance policy in any respect.

Director and Officer Liability and Indemnification. (ai) For a period of six years after the ClosingClosing Date, Buyer willshall cause the Company and its Subsidiaries to exculpate (to the greatest extent permitted by applicable Law) and indemnify, defend and will cause hold harmless each of the directors, managers and officers of the Company and each of the its Subsidiaries to, cause their respective Governing Documents to contain provisions no less favorable with respect to the limitation or elimination (each of liability, indemnification and advancement of expenses for directors and officers (unless required by Law) than those included them acting in such documents immediately capacity at or prior to the Closing. (b) In addition against all Adverse Consequences arising out of any violations or alleged violations of fiduciary duties of care or loyalty or other fiduciary duties to the other rights provided for Company or any of its Subsidiaries in this Section 7.02 and not in limitation thereoftheir capacities as officers, from and after the Closing, no former directors or current director or officer managers of the Company or any of its Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach of 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 to the fullest extent permitted under applicable law. (ii) For a period of at least six (6) years commencing from the Closing Date. Each , Buyer shall cause the Company and its Subsidiaries to pay for officers’ and directors’ liability insurance covering the Persons who are, as of and prior to the Closing Date, covered by the officers’ and directors’ liability insurance policies of the Company and/or its Subsidiaries with respect to actions and omissions occurring prior to and on the Closing Date, on terms which are no less favorable to such Persons than the terms of such current insurance in effect for the Company and/or its Subsidiaries as of the date hereof; provided, however, that if such officers’ and directors’ liability insurance is not available at an aggregate cost for the full six (6)-year period not to exceed 200% of the last annual premium paid by the Company for such insurance prior to the date of this Agreement (the “Insurance Cap”), Buyer shall be required to obtain and cause the Company to maintain that amount of directors’ and officers’ insurance providing for the maximum coverage that shall then be obtainable under substantially similar policies for an aggregate premium equal to the Insurance Cap, and shall permit the Sellers’ Representative, on behalf of the Sellers, to pay amounts in excess of the Insurance Cap to maintain the existing coverage. (iii) The provisions of this Section 6(e) are intended to be for the benefit of, and will be enforceable by, each such Person entitled to indemnification under this Section 6(e), his or her heirs and his or her representatives, and the obligations of Buyer and Seller will pay at Closing one half the Company under this Section 6(e) shall not be terminated or modified in such manner as to adversely affect any such Person to whom this Section 6(e) applies without the consent of the insurance premium required Seller Representative, which consent shall not be unreasonably withheld, delayed or conditioned. (iv) In the event Buyer, the Company or any of their respective successors or assigns (A) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (B) transfers all or substantially all of its properties and assets to purchase such irrevocable “tail” insurance policies. Buyer will notany Person, then, and will not permit in either such case, proper provision shall be made so that the Company tosuccessors and assigns of Buyer or the Company, cancel or change such insurance policy as the case may be, shall assume all of the obligations set forth in any respectthis Section 6(e).

Director and Officer Liability and Indemnification. (ai) For a period Buyer shall cause the limited liability company agreement, certificate of six years after the Closingincorporation, Buyer willBy-Laws, and will cause and/or other constitutive documents of the Company and each of its Subsidiaries (collectively, the Subsidiaries to, cause their respective Governing Documents “Constitutive Documents”) to contain the provisions no less favorable with respect to indemnification set forth in the limitation Constitutive Documents on the date of this Agreement, which provisions shall not be amended, repealed or elimination otherwise modified for a period of liability, indemnification and advancement not less than six (6) years after the Closing in any manner that would adversely affect the rights thereunder of expenses for directors and officers (unless required by Law) than those included in such documents immediately individuals who at any time prior to the Closing. (b) In addition to Closing were members, officers, directors, managers or employees of the other rights provided for in this Section 7.02 and not in limitation thereofSeller, from and after the Closing, no former or current director or officer of the Company or any of its their respective Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach in respect of fiduciary duty as a director or officer for any acts actions 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. Each 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 Buyer and Seller will pay at Closing one half doubt, includes members of the Seller’s board of managers) on terms comparable to such existing insurance premium 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 purchase maintain any coverage in excess of the amount that can be obtained for the remainder of such irrevocable “tail” insurance policies. Buyer will not, and will not permit period for an annual premium of 150% of the current annual premium paid by the Company to, cancel or change such for its existing directors’ and officers’ liability insurance policy in any respectcoverage as of the date hereof.

Director and Officer Liability and Indemnification. (a) For From and after the Closing Date, the Buyer shall cause the Company to reimburse, indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, the individuals who on or prior to the Closing Date were managers or officers of the Company (collectively, the “D&O Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of the Company at any time prior to the Closing Date. The Buyer agrees that all rights of the D&O Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Closing Date as provided in the respective Organizational Documents of the Company as now in effect shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. The Buyer shall, and shall cause the Company to, (i) for a period of not less than six (6) years after from the ClosingClosing Date, Buyer will, and will cause maintain provisions in the Company and each of the Subsidiaries to, cause their respective Governing Company’s Organizational Documents to contain provisions no less favorable with respect relating to the limitation exculpation or elimination indemnification of liability, indemnification and advancement any of expenses for directors and officers its D&O Indemnitees (unless required by Law) that are no less favorable in the aggregate than those included such provisions in the Company’s Organizational Documents as of the Closing and (ii) not amend, repeal or otherwise modify such documents provisions in any material respect that would adversely affect the rights, taken as a whole, of the D&O Indemnitees thereunder, in each case of clauses (i) and (ii), except as required by applicable Law. In addition, Buyer shall cause the Company to pay any expenses (including reasonable attorneys’ fees) of any D&O Indemnitee under this Section 9.1 as incurred to the fullest extent permitted under applicable Law; provided, that the D&O Indemnitee to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law or in the event that it is determined by a court that such D&O Indemnitee did not meet the applicable standard of conduct for indemnification under this Section 9.1(a). Notwithstanding anything to the contrary in this ‎Section 9.1(a) or in any Organizational Document of the Company, from and after the Closing, the Company shall not be required to reimburse, indemnify, defend, or hold harmless, or advance any expenses to, any D&O Indemnitee for an act or omission that (i) was not taken or omitted to be taken in good faith, (ii) was not taken or omitted to be taken in a manner reasonably believed to be in, or not opposed to, the interests of the Company, (iii) with respect to any such action or omission resulting in a criminal investigation or proceeding, the Person taking such action had reason to believe such action or omission was unlawful; or (iii) constitutes fraud, willful misconduct or gross negligence. The Buyer shall provide (including by extending coverage under the Buyer’s own policies) six (6) year ‘tail’ directors’ and officers’ liability insurance and fiduciary insurance policies to the D&O Indemnitees covering such claims with respect to matters occurring at or prior to the Closing that are no less favorable than the Company’s existing directors’ and officers’ liability insurance and fiduciary insurance policies in effect immediately prior to the Closing. (b) In addition Each D&O Indemnitee shall reasonably cooperate, and cause their respective Affiliates to reasonably cooperate, in the other rights provided for defense of any D&O Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer of the Company or any of its Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach of 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 DGCLconnection therewith. (c) At The provisions of this ‎Section 9.1(i) are intended to be for the Closingbenefit of, Buyer willand shall be enforceable by, the D&O Indemnitees, their heirs and their personal representatives, (ii) are in addition to, and not in substitution for, any other rights to indemnification or will cause contribution that any such Person may have in the Organizational Documents of the Company to obtain, maintain and fully pay for irrevocable “tail” insurance policies naming any of the D&O Indemnified Persons as direct beneficiaries with a claims period other documents on Schedule 9.1 and (iii) shall be binding on all successors and permitted assigns of at least six years from the Closing Date from an insurance carrier with the same or better credit rating as Buyer and the Company’s current insurance carrier . In the event that the Buyer or any of its successors or assigns (x) consolidates with respect or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger; or (y) transfers or conveys all or substantially all of its assets to directors’ liability insurance any Person, then, and in an amount each such case, proper provision shall be made so that the successors 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. Each of Buyer and Seller will pay at Closing one half assigns of the insurance premium required to purchase such irrevocable “tail” insurance policies. Buyer will not, and will not permit shall assume all of the Company to, cancel or change such insurance policy obligations thereof set forth in any respectthis ‎Section 9.1.

Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the ClosingClosing Date, Buyer willthe Purchaser shall not, and will cause shall not permit the Company and each Surviving Corporation or its Subsidiaries to amend, repeal or otherwise modify any provision in the Company’s or its Subsidiaries’ certificate of formation, certification of incorporation, articles of incorporation, operating agreement, bylaws, or equivalent governing documents in effect as of the Subsidiaries to, cause their respective Governing Documents to contain provisions no less favorable with respect date hereof relating to the limitation exculpation or elimination indemnification (including fee advancement) of liability, indemnification and advancement of expenses for any officers and/or directors and officers (unless required by Law), it being the intent of the parties that the officers and directors of 58 the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including fee advancement) than those included as is provided to such Persons thereunder as of the date hereof to the full extent of the Law. The Purchaser shall cause the Surviving Corporation and its Subsidiaries to honor and perform under all indemnification obligations under such governing documents in such documents immediately effect as of the date hereof owed to any of the individuals who were officers and/or directors of the Company or its Subsidiaries at or prior to the ClosingClosing Date. (b) In addition Prior to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer the Purchaser shall purchase a prepaid insurance policy (i.e., “tail coverage”) which provides liability insurance coverage for the individuals who were officers and directors of the Company or any of and its Subsidiaries will be personally liable immediately prior to the Closing on no less favorable terms (including in amount and scope for directors and officers, management liability, employment practices, fiduciary, crime and employed lawyers coverage) as the policy or policies maintained by the Company or its Subsidiaries as of the date hereof for monetary damages the benefit of such individuals for breach an aggregate period of fiduciary duty as a director or officer for any acts not less than six (6) years with respect to claims arising from acts, events or omissions occurring any time that occurred at or prior to the Closing, except including with respect to the extent transactions contemplated by this Agreement; provided, however, that the Purchaser shall not be required to pay a judgment premium for such “tail coverage” insurance policy in excess of two hundred fifty percent (250%) of the annual premium currently paid by the Company and its Subsidiaries (the “Premium Cap”) (it being understood and agreed that in the event such insurance policy cannot be obtained for such amount or other final adjudication adverse to such director or officer establishes that less, in the aggregate, (i) his or her acts or omissions were the Company, in bad faith or involved intentional misconduct its sole discretion, may nevertheless elect for Purchaser to purchase such policy, in which case the amount by which the premium for such policy exceeds the Premium Cap shall be treated as a Transaction Expense or (ii) that his or her acts fall within if the categories set forth Company does not so elect, the Purchaser shall purchase the greatest insurance coverage as may be obtained without requiring payments in Section 102(b)(7) excess 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 Premium Cap). Such policy shall be from an insurance carrier with the same or better credit rating as the Company’s or its Subsidiaries’ current insurance carrier with respect to directors’ and officers’ liability insurance insurance. For all purposes hereunder, Transaction Expenses shall be deemed to include (A) fifty percent (50%) of the lesser of (1) the cost of such policy and (2) the Premium Cap plus (B) one hundred percent (100%) of the amount by which the cost of such policy exceeds the Premium Cap. (c) If the Surviving Corporation, its Subsidiaries or any of their respective successors or assigns (i) is to consolidate with or merges into any other Person and will not be the continuing or the Surviving Corporation or entity of such consolidation or merger or (ii) is to transfer all or substantially all of its properties and assets to any Person, then, and in an amount and scope each such case, for at least as favorable as six (6) years after the Company’s existing policies with respect Closing, proper provisions shall be made so that the successors and assigns of the Surviving Corporation and its Subsidiaries shall assume all of the obligations set forth in this Section 8.03. The provisions of this Section 8.03 are intended for the benefit of, and will be enforceable by, each current and former officer, director or similar functionary of the Company or its Subsidiaries and his or her heirs and representatives, and are in addition to, and not in substitution for, any other rights to matters existing indemnification or occurring contribution that any such person may have had by contract or otherwise. 59 (d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individuals who were officers and directors of the Company and its Subsidiaries at or prior to the Closing Date. Each of Buyer Date or any other party covered by directors’ and Seller will pay at Closing one half officers’ liability insurance, on or prior to the sixth (6th) anniversary of the insurance premium required Closing Date, the provisions of this Section 8.03 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. (e) Notwithstanding anything to purchase such irrevocable “tail” insurance policies. Buyer will not, and will not permit the contrary herein or in the Company toOrganizational Documents, cancel any Subsidiary Organizational Documents or change any Contract, the obligations of the Purchaser and the Surviving Corporation or its successor pursuant to this Section 8.03 (i) shall be subject to any limitation imposed by applicable Law and (ii) shall not be deemed to release any of the individuals who were officers or directors of the Company or any of its Subsidiaries at or prior to the Closing Date from his or her obligations pursuant to this Agreement or any Related Agreement, nor shall any of the individuals who were officers or directors of the Company or any of its Subsidiaries have any right of contribution, indemnification, or advancement or reimbursement of expenses from the Surviving Corporation or its successor or the Purchaser or any of their respective Subsidiaries (whether under this Agreement, the Company Organizational Documents, any Subsidiary Organizational Documents, any other Contract or otherwise) with respect to any Loss incurred or sustained by such insurance policy Person or any other Person (including any Indemnified Party (and including the Surviving Corporation)) in connection with or as a result of any respectIndemnifiable Matter (except to the extent such contribution, indemnification or advancement or reimbursement of expenses is actually recovered from a Third Party by the Surviving Corporation or its Subsidiaries from insurance, but net of any expenses incurred in obtaining such recovery, including collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums). Notwithstanding anything herein to the contrary, the Purchaser shall have no obligation to maintain the existence of the Surviving Corporation following the Effective Time.

Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, Buyer will, and will Parent shall cause the Company Surviving Corporation and any of its Subsidiaries to cause Company’s and each of the Subsidiaries to, cause their respective Governing Documents its Subsidiaries’ certificate of incorporation or bylaws (or equivalent governing document) to contain provisions no less favorable with respect relating to the limitation exculpation or elimination indemnification of liability, any officers and/or directors that are at least as favorable as the provisions relating to the exculpation or indemnification of any officers and/or directors contained in the Company’s and advancement each of expenses for directors and officers its Subsidiaries’ certificate of incorporation or bylaws (or equivalent governing document) in effect immediately prior to the Effective Time (unless required by Applicable Law) than those included ), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries since August 1, 2013 will continue to be entitled to such exculpation and indemnification to the full extent permitted by Applicable Law, subject to and in such documents accordance with the Company’s or any of its Subsidiaries’ certificate of incorporation or bylaws in effect immediately prior to the ClosingEffective Time and any indemnity agreements between the Company and such officers and directors. (b) In addition to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer of the Company or any of its Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach of 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 Parent will cause the Company to obtain, obtain and maintain and fully pay for one or more irrevocable “tail” insurance policies (the “D&O Tail Policies”) naming the D&O Indemnified Persons Indemnitees 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’ 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. Each of Buyer and Seller will pay at Closing one half of ; provided that the insurance aggregate annual premium required to purchase for such irrevocable “tail” insurance policiespolicy shall not exceed $75,000 (such amount, the “Maximum Annual Premium”); further provided, that if such aggregate annual premium exceeds the Maximum Annual Premium, the Company shall be required to cause the Company to buy at least that level of coverage which can be purchased for the Maximum Annual Premium. Buyer Parent will notbear the fees and expenses of purchasing the D&O Tail Policies; provided, however, that in satisfying its obligations hereunder Parent and the Company shall not be obligated to pay annual premiums in the aggregate in excess of the Maximum Annual Premium. (c) In the event that all or substantially all of the assets of the Surviving Corporation are sold, whether in one transaction or a series of transactions, then Parent and the Surviving Corporation will, and in each such case, ensure that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 6.05. The provisions of this Section 6.05(c) will apply to all of the successors and assigns of the Surviving Corporation. (d) The obligations of Parent, the Surviving Corporation and their Subsidiaries under this Section 6.05 shall not permit be terminated or modified in such a manner as to adversely affect any Person to whom this Section 6.05 applies without the Company to, cancel or change consent of such insurance policy in any respectaffected Person.

Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the ClosingClosing Date, Buyer willthe Purchaser shall not, and will cause shall not permit the Surviving Company and each or its Subsidiaries to amend, repeal or otherwise modify any provision in the Company’s or its Subsidiaries’ certificate of the Subsidiaries toformation, cause their respective Governing Documents to contain provisions no less favorable with respect certification of incorporation, articles of incorporation, operating agreement, bylaws, or equivalent governing documents relating to the limitation exculpation or elimination indemnification (including fee advancement) of liabilityany officers, indemnification and advancement of expenses for managers and/or directors and officers (unless required by Law) than those included in such documents immediately a manner that would adversely affect the rights thereunder of individuals who, as of the Closing Date or at any time prior to the Closing. (b) In addition to the other rights provided for in this Section 7.02 Closing Date, were officers, managers and not in limitation thereof, from and after the Closing, no former or current director or officer directors of the Company or its Subsidiaries, it being the intent of the parties that such Persons shall continue to be entitled to such exculpation and indemnification (including fee advancement) to the full extent of the Law. The Purchaser shall, and shall cause the Surviving Company and its Subsidiaries to, honor and perform under all indemnification obligations owed to any of its Subsidiaries will be personally liable to the individuals who were officers, managers and/or directors of the Company or its Subsidiaries for monetary damages for breach of 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. Each Date to the maximum extent permitted by applicable Law. (b) If the Surviving Company, its Subsidiaries or any of Buyer their respective successors or assigns (i) is to consolidate with or merges into any other Person and Seller will pay at Closing one half not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) is to transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the insurance premium required to purchase such irrevocable “tail” insurance policies. Buyer will notSurviving Company and its Subsidiaries shall assume all of the obligations set forth in this Section 6.02 The provisions of this Section 6.02 are intended for the benefit of, and will not permit be enforceable by, each current and former officer, manager, director or similar functionary of the Company or its Subsidiaries and his or her heirs and representatives, and are in addition to, cancel and not in substitution for, any other rights to indemnification or change contribution that any such insurance policy person may have had by contract or otherwise. (c) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individuals who were officers, managers or directors of the Company and its Subsidiaries at or prior to the Closing Date or any other party covered by directors’ and officers’ liability insurance, on or prior to the sixth anniversary of the Closing Date, the provisions of this Section 6.02 shall continue in effect solely with respect to any respectsuch claim, action, suit, proceeding or investigation until the final disposition of such claim, action, suit, proceeding or investigation.

Director and Officer Liability and Indemnification. (a) Following the Closing, the Surviving Corporation and each of its currently existing Subsidiaries shall, and the Buyer shall cause the Surviving Corporation and each of its currently existing Subsidiaries to, include and maintain in effect in their respective Organizational Documents, for a period of six (6) years after the Closing, provisions regarding the elimination of Liability of directors (or their equivalent), indemnification of officers and directors (or their equivalent), and advancement of expenses which are, with respect to each such entity, no less advantageous to such Persons than the corresponding provisions contained in such Organizational Documents as of the Closing Date. (b) For a period of six (6) years after the Closing, Buyer willthe Surviving Corporation shall, and will the Buyer shall cause the Company and each of the Subsidiaries Surviving Corporation to, cause their respective Governing Documents to contain provisions no less favorable with respect maintain in effect the Company's current directors' and officers' liability insurance and fiduciary liability insurance in effect on the date of this Agreement (a correct and complete copy of which has been made available to the limitation or elimination Buyer) (the "D&O Insurance") in respect of liability, indemnification and advancement of expenses for directors and officers (unless required by Law) than those included in such documents immediately prior to the Closing. (b) In addition to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer of the Company or any of its Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach of 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. Each of Buyer Closing, covering each Person currently covered by the D&O Insurance, on terms with respect to coverage, deductible, and Seller will pay at Closing one half amounts no less favorable than those of the insurance premium D&O Insurance. Alternatively, at the Buyer's option, the Buyer may require that the Company purchase a six (6)‑year pre‑paid "tail policy" on terms and conditions (in both amount and scope) providing substantially equivalent benefits as the D&O Insurance maintained by the Company with respect to matters arising on or before the Closing, covering without limitation the transactions contemplated hereby; provided, that in no event shall the Buyer be required to purchase pay, with respect to the entire six (6)-year period following Closing, premiums for insurance under this Section 6.02 that in the aggregate exceed 150% of the annual premiums payable by the Company for coverage during period year ending in August, 2010 under the D&O Insurance (which premiums for such irrevocable “tail” insurance policies. Buyer will notyear are hereby represented and warranted by the Company to be $23,109). (c) In the event that the Buyer, the Surviving Corporation, or any of its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any other Person, then, and will not permit in each case, the successors and assigns of the Buyer, the Surviving Corporation, or any of its Subsidiaries, as the case may be, shall assume and be bound by the obligations set forth in this Section 6.02. (d) The provisions of this Section 6.02 shall survive the Closing indefinitely and are intended to be for the benefit of, and shall be enforceable by, each of the directors and officers of the Company and each of its Subsidiaries as of the Closing, together with each of their respective successors and representatives after the Closing, and their rights under this Section 6.02 are in addition to, cancel and shall not be deemed to be exclusive of, any other rights to which any such Person is entitled, whether pursuant to Law, Contract, Organizational Document, or change such insurance policy in any respectotherwise.

Director and Officer Liability and Indemnification. The Buyer hereby agrees that: (a) As of the Effective Time, the Certificate of Incorporation and the By-Laws of the Surviving Corporation and its Subsidiaries shall contain provisions with respect to indemnification and exculpation from liability of directors and officers of the Company and its Subsidiaries to the maximum extent permitted thereunder by Delaware Law. Such provisions shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors or officers, of the Company or its Subsidiaries (the "Indemnified Individuals"), unless such modification is required by Applicable Law (and then only to the minimum extent required thereby). (b) For a period of six years after from the ClosingEffective Time, the Surviving Corporation shall maintain in effect the Company's current directors' and officers' liability insurance covering those Persons who are covered on the date of this Agreement by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore made available to Buyer); provided, however, that in no event shall Buyer will, and will cause be required to expend in any one year an amount in excess of 150% of the annual premiums currently paid by the Company for such insurance; provided further that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount; provided further that the Surviving Corporation may substitute, for the Surviving Corporation policies, other policies with at least the same coverage containing terms and each of the Subsidiaries to, cause their respective Governing Documents to contain provisions no conditions which are not materially less favorable advantageous and provided that said substitution does not result in any gaps or lapses in coverage with respect to the limitation or elimination of liability, indemnification and advancement of expenses for directors and officers (unless required by Law) than those included in such documents immediately matters occurring prior to the Closing. (b) In addition Effective Time or, at Buyer's option, cause Buyer's directors' and officers' liability insurance then in effect to cover those Persons who are covered on the other rights provided for in date of this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer of the Company or Agreement by any of its Subsidiaries will be personally liable such insurance policy with respect to the Company or its Subsidiaries for monetary damages for breach of 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 those matters covered by 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 DGCLinsurance policy. (c) At From and after the ClosingEffective Time, the Buyer willshall cause the Surviving Corporation to indemnify, defend and hold harmless, to the fullest extent that the Company would have been permitted under Delaware Law, each Indemnified Individual against all Damages in connection with any action arising out of or pertaining to acts or omissions, or will cause the Company to obtainalleged acts or omissions, maintain and fully pay for irrevocable “tail” insurance policies naming the D&O Indemnified Persons by them in their capacities 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 such occurring at or prior to the Closing Date; provided, however, that the Surviving Corporation shall not have any obligation to indemnify any Indemnified Individual who is also a Seller other than out of D&O Insurance (i) in connection with any Action brought or asserted by any Seller or other Indemnified Individual; or (ii) for any matter for which any Buyer Indemnitee is entitled to indemnification pursuant to Section 10.1, except to the extent that the Buyer Indemnitee has received indemnity (including indemnity for the payment of amounts under this Section) therefor. Each The Surviving Corporation shall not be obligated pursuant to this Article VII to pay the fees and disbursements of Buyer and Seller will pay at Closing more than one half of the insurance premium required to purchase such irrevocable “tail” insurance policies. Buyer will not, and will not permit the Company to, cancel or change such insurance policy counsel for all Indemnified Individuals in any respectsingle Action except to the extent that, in the opinion of counsel for the Indemnified Individuals, two or more such Indemnified Individuals have conflicting interests in the outcome of such action.

Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the Closing, Buyer willPurchaser shall not, and will cause shall ensure that the Company and each of Acquired Companies do not, amend, alter, repeal or modify any provision in the Subsidiaries to, cause their respective Governing Documents to contain provisions no less favorable with respect to of such Acquired Company governing the limitation exculpation or elimination indemnification of liabilityany officers, managers, and directors in any way that diminishes or adversely affects the indemnification and advancement of expenses for directors and officers or exculpation provided therein (unless required by Law) than those included ), it being the intent of the Parties that the officers, managers and directors of the Acquired Companies who were officers, managers and directors at any time prior to the Closing shall continue to be entitled to such exculpation and indemnification with respect to all acts or omissions by them in their capacities as such documents at any time prior to the Closing to the fullest extent provided for under applicable Law and the Governing Documents of such Acquired Company as of immediately prior to the Closing. (b) In addition At or prior to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer of the Company or any of its Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach of 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 willshall, or will shall cause the each Acquired Company to to, at Purchaser’s sole expense, obtain, maintain maintain, and fully pay for irrevocable “tail” directors’ and officers’ liability insurance policies naming covering claims against officers, managers and directors of each Acquired Company who were officers, managers or directors at any time prior to the Closing (each, a “D&O Indemnified Persons as direct beneficiaries Person”), with a claims period of at least six (6) years from the Closing Date Date, from an insurance carrier with the same or better credit rating as the such Acquired Company’s current insurance carrier with respect to errors and omissions insurance and directors’ and officers’ liability insurance and in an amount and scope at least as favorable as the such Acquired Company’s existing policies policies, with respect to matters existing existing, occurring, or occurring arising at or prior to the Closing Date. Each of Buyer and Seller will pay at Closing one half of the insurance premium ; provided that Purchaser shall not be required to purchase pay annual premiums for any such irrevocable “tail” directors’ and officers’ liability insurance policiespolicy that are in excess of 175% of the total of the annual premiums paid by the Company prior to the Execution Date in respect of the directors’ and officers’ liability insurance in effect as of the Execution Date that are maintained by the Company with respect to matters arising on or before the Execution Date. Buyer will Purchaser shall not, and will shall cause the Acquired Companies not permit the Company to, cancel or change such insurance policy policies in any respectrespect for a period of six (6) years. (c) If Purchaser, any Acquired Company, or any of 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 in such consolidation or merger, or (ii) transfers all or substantially all of its assets to any Person, then and in either such case proper provision shall be made so that the successors and assigns of Purchaser or such Acquired Company, as the case may be, shall assume obligations that are, in the aggregate, no less favorable to the D&O Indemnified Persons than those set forth in this Section 12.2. (d) The provisions of this Section 12.2 shall survive the consummation of the Acquisition and are expressly intended to benefit each of the D&O Indemnified Persons. The Parties agree that the D&O Indemnified Persons are express third-party beneficiaries of this Section 12.2. The rights set forth in this Section 12.2 are in addition to, and not in substitution of, any other rights to indemnification or contribution that any D&O Indemnified Person may have.

Director and Officer Liability and Indemnification. (a) For From and after the Closing Date for a period of six (6) years, Parent shall cause the Surviving Corporation to indemnify, defend and hold harmless, to the fullest extent permitted by Law and the organizational documents of the Company, the individuals who on or prior to the Closing Date were or are managers, directors or officers of the Company or any of its Subsidiaries (collectively, the “D&O Indemnified Parties”) with respect to any and all acts or omissions by them in their capacities as such or as trustees or fiduciaries of any plan for the benefit of employees of the Company or any of its Subsidiaries or taken at the request of the Company or any Subsidiary at any time prior to the Closing Date. Parent agrees that all rights of the D&O Indemnified Parties to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Closing Date as provided in the respective governing documents of the Company or any Subsidiary as in effect as of immediately prior to the Closing, and any indemnification agreements or arrangements of the Company or any Subsidiary set forth on Section 7.2 of the Company Disclosure Schedule shall survive the Closing and shall continue in full force and effect in accordance with their terms. Parent shall not, and shall cause the Surviving Corporation and its Subsidiaries not to, amend, alter or otherwise modify such rights or agreements in any manner that could adversely affect the indemnification and exculpation rights of the D&O Indemnified Parties. In addition, to the extent provided in the certificate of incorporation, bylaws or similar governing documents of the Company or its Subsidiaries, as applicable, as in effect as of immediately prior to the Closing, Parent shall cause the Surviving Corporation and its Subsidiaries to pay any and all legal and other fees, costs and expenses (including the cost of investigation and preparation) of any D&O Indemnified Party under this Section 7.2, as incurred to the fullest extent permitted by Law; provided that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is determined that such D&O Indemnified Party is not entitled to such indemnification. Parent shall cause the Surviving Corporation and its Subsidiaries to pay all fees, costs and expenses, including attorneys’ fees that may be incurred by a D&O Indemnified Party in successfully enforcing this Section 7.2. (b) Subject to the other terms and conditions in Section 7.2, for six (6) years after the ClosingClosing Date, Buyer willunless otherwise required by Law, and will cause the Company and each governing documents of the Surviving Corporation, its Subsidiaries to, cause and their respective Governing Documents to successors or assigns shall contain provisions no less favorable to the D&O Indemnified Parties with respect to the limitation or elimination indemnification of liability, indemnification and advancement of expenses for to managers, directors and officers (unless required by Law) than those included are set forth in such the governing documents of the Company and its Subsidiaries in effect as of immediately prior to the Closing. (b) In addition to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer of the Company or any of its Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach of 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. Each , Parent shall purchase (and pay for in full at its own expense) a “tail” non-cancellable directors and officers liability and fiduciary and employment practices liability prepaid insurance policy with respect to the D&O Indemnified Parties’ existing directors’, managers’ and officers’ and employees’ liability insurance coverage that shall provide such directors, managers and officers and employees’ coverage for six (6) years following the Closing (including with respect to acts or omissions occurring in connection with this Agreement, the Related Documents and the Transactions on terms with respect to such coverage and amount no less favorable to the D&O Indemnified Parties than those of Buyer and Seller will pay at Closing one half such policies in effect on the date hereof); provided that in no event shall Parent be required to expend an amount in excess of 300% of the aggregate annual premiums currently paid by the Company for such policies; provided, further, that if the aggregate premium of such insurance premium required coverage exceeds such amount, Parent shall obtain the policy with the greatest possible coverage available for a cost not to purchase exceed such irrevocable amount. Parent shall, and shall cause the Surviving Corporation to, maintain such policy in full force and effect from and after the Closing Date and shall not, and shall cause the Surviving Corporation not to, amend the terms and conditions of such “tail” insurance policiesin any manner adverse to the D&O Indemnified Parties. Buyer will notThe cost of such policy shall not constitute a Transaction Expense. (d) In the event that Parent, the Surviving Corporation or any of its Subsidiaries or any of their successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving company of such consolidation or merger; or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and will in each such case, proper provision shall be made so that the successors and assigns of Parent, the Surviving Corporation or any of its Subsidiaries shall assume all of the obligations thereof set forth in this Section 7.2. (e) The obligations under this Section 7.2 shall not permit be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party to whom this Section 7.2 applies without the Company written consent of such D&O Indemnified Party (it being expressly understood that the (i) D&O Indemnified Parties to whom this Section 7.2 applies shall be third party beneficiaries of this Section 7.2 and shall be entitled to enforce the covenants contained herein and (ii) rights set forth in this Section 7.2 are in addition to, cancel and not in substitution of, any other rights to indemnification or change contribution that any D&O Indemnified Party may have). (f) Parent hereby acknowledges that certain D&O Indemnified Parties may have rights to indemnification, advancement of expenses and/or insurance provided by Persons other than the Surviving Corporation and its Subsidiaries (collectively, the “Indemnitors”). Parent hereby agrees that (i) the Surviving Corporation is the indemnitor of first resort (i.e., its obligations to the D&O Indemnified Party are primary and any obligation of the Indemnitors are secondary); (ii) the Surviving Corporation shall be required to advance the full amount of expenses incurred by any D&O Indemnified Party and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent permitted by Law and as required by the terms of this Agreement or the Surviving Corporation’s or its Subsidiaries’ respective certificate of incorporation, bylaws or comparable organizational or governing documents (or any other agreement between the Surviving Corporation or any of its Subsidiaries, on the one hand, and any such insurance policy D&O Indemnified Party on the other hand), without regard to any rights the D&O Indemnified Party may have against the Indemnitors; and (iii) each of Parent and the Surviving Corporation irrevocably waives, relinquishes and releases the Indemnitors from any and all claims, cross claims and causes of action against the Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. Each of Parent and the Surviving Corporation further agree that no advancement or payment by an Indemnitor on behalf of any respectD&O Indemnified Party with respect to any claim for which a D&O Indemnified Party has sought indemnification from the Surviving Corporation shall affect the foregoing. Parent and the D&O Indemnified Parties agree that the Indemnitors are express third party beneficiaries of the terms of this Section 7.2(f).

Director and Officer Liability and Indemnification. (a) For a period of six (6) years following the Closing Date, Buyer shall cause the Company and its Subsidiaries to indemnify, defend and hold harmless all current and former directors, officers, employees, Affiliates and agents of the Company and its Subsidiaries (the “D&O Indemnified Persons”) against any claims and Losses incurred in connection with any Action, arising out of or pertaining to matters existing or occurring at or prior to the Closing (including acts or omissions occurring in connection with the approval of this Agreement and the transactions contemplated hereby and the consummation of the transactions contemplated hereby), in each case in their capacities as such whether asserted or claimed prior to, at or after the Closing, to the fullest extent that the Company or the applicable Subsidiary of the Company, as the case may be, would have been permitted, under applicable Law, indemnification agreements existing on the date hereof or the Organizational Documents of the Company and its Subsidiaries in effect on the date hereof, to indemnify such D&O Indemnified Persons. For a period of six (6) years following the Closing Date, Buyer willshall not, and will shall cause the Company and each its Subsidiaries not to, amend, repeal or modify any provision of any indemnification agreements existing on the date hereof or any provision in the Company’s or any of its Subsidiaries’ Organizational Documents relating to the indemnification of the Subsidiaries toD&O Indemnified Persons, cause their respective Governing Documents to contain provisions no less favorable with respect to in each case in a manner that would limit the limitation or elimination scope of liability, indemnification and advancement of expenses for directors and officers (unless required by Law) than those included in such documents immediately prior to the Closingindemnification. (b) In addition At or prior to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer of the Company or any of its Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach of 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 Seller shall cause the Company and its Subsidiaries to obtain, maintain obtain 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 (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 in an amount and scope reasonable and customary for companies that are engaged in business similar to that of the Company and its Subsidiaries, and in any event in an amount and scope at least as favorable as the Company’s and its Subsidiaries’ existing policies with respect to matters existing or occurring at or prior to the Closing Date. Each of Buyer and Seller will pay at Closing one half of the insurance premium required to purchase such irrevocable “tail” insurance policiesClosing. Buyer will shall not, and will not permit shall cause the Company and its Subsidiaries not to, cancel or change such insurance policy policies in any respect. (c) If Buyer, the Company or any of its Subsidiaries, or any of their respective successors or assigns: (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger; or (ii) shall transfer 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 Buyer, the Company and its Subsidiaries shall assume all of the obligations set forth in this Section 7.3; provided, however, that none of the Buyer, the Company or any of its Subsidiaries shall be relieved from such obligations. (d) The provisions of this Section 7.3 are intended for the benefit of, and will be enforceable by, each D&O Indemnified Person and his or her heirs and Representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have had, under applicable Law, by Contract or otherwise.

Director and Officer Liability and Indemnification. (a) For a period of six (6) years after the ClosingClosing Date, Buyer willthe Purchaser shall not, and will cause shall not permit the Company and each Surviving Corporation or its Subsidiaries to amend, repeal or otherwise modify any provision in the Company’s or its Subsidiaries’ certificate of formation, certification of incorporation, articles of incorporation, operating agreement, bylaws, or equivalent governing documents in effect as of the Subsidiaries to, cause their respective Governing Documents to contain provisions no less favorable with respect date hereof relating to the limitation exculpation or elimination indemnification (including fee advancement) of liability, indemnification and advancement of expenses for any officers and/or directors and officers (unless required by Law), it being the intent of the parties that the officers and directors of the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including fee advancement) than those included as is provided to such Persons thereunder as of the date hereof to the full extent of the Law. The Purchaser shall cause the Surviving Corporation and its Subsidiaries to honor and perform under all indemnification obligations under such governing documents in such documents immediately effect as of the date hereof owed to any of the individuals who were officers and/or directors of the Company or its Subsidiaries at or prior to the ClosingClosing Date. (b) In addition Prior to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer the Purchaser shall purchase a prepaid insurance policy (i.e., “tail coverage”) which provides liability insurance coverage for the individuals who were officers and directors of the Company or any of and its Subsidiaries will be personally liable immediately prior to the Closing on no less favorable terms (including in amount and scope for directors and officers, management liability, employment practices, fiduciary, crime and employed lawyers coverage) as the policy or policies maintained by the Company or its Subsidiaries as of the date hereof for monetary damages the benefit of such individuals for breach an aggregate period of fiduciary duty as a director or officer for any acts not less than six (6) years with respect to claims arising from acts, events or omissions occurring any time that occurred at or prior to the Closing, except including with respect to the extent transactions contemplated by this Agreement; provided, however, that the Purchaser shall not be required to pay a judgment premium for such “tail coverage” insurance policy in excess of two hundred fifty percent (250%) of the annual premium currently paid by the Company and its Subsidiaries (the “Premium Cap”) (it being understood and agreed that in the event such insurance policy cannot be obtained for such amount or other final adjudication adverse to such director or officer establishes that less, in the aggregate, (i) his or her acts or omissions were the Company, in bad faith or involved intentional misconduct its sole discretion, may nevertheless elect for Purchaser to purchase such policy, in which case the amount by which the premium for such policy exceeds the Premium Cap shall be treated as a Transaction Expense or (ii) that his or her acts fall within if the categories set forth Company does not so elect, the Purchaser shall purchase the greatest insurance coverage as may be obtained without requiring payments in Section 102(b)(7) excess 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 Premium Cap). Such policy shall be from an insurance carrier with the same or better credit rating as the Company’s or its Subsidiaries’ current insurance carrier with respect to directors’ and officers’ liability insurance insurance. For all purposes hereunder, Transaction Expenses shall be deemed to include (A) fifty percent (50%) of the lesser of (1) the cost of such policy and (2) the Premium Cap plus (B) one hundred percent (100%) of the amount by which the cost of such policy exceeds the Premium Cap. (c) If the Surviving Corporation, its Subsidiaries or any of their respective successors or assigns (i) is to consolidate with or merges into any other Person and will not be the continuing or the Surviving Corporation or entity of such consolidation or merger or (ii) is to transfer all or substantially all of its properties and assets to any Person, then, and in an amount and scope each such case, for at least as favorable as six (6) years after the Company’s existing policies with respect Closing, proper provisions shall be made so that the successors and assigns of the Surviving Corporation and its Subsidiaries shall assume all of the obligations set forth in this Section 8.03. The provisions of this Section 8.03 are intended for the benefit of, and will be enforceable by, each current and former officer, director or similar functionary of the Company or its Subsidiaries and his or her heirs and representatives, and are in addition to, and not in substitution for, any other rights to matters existing indemnification or occurring contribution that any such person may have had by contract or otherwise. (d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individuals who were officers and directors of the Company and its Subsidiaries at or prior to the Closing Date. Each of Buyer Date or any other party covered by directors’ and Seller will pay at Closing one half officers’ liability insurance, on or prior to the sixth (6th) anniversary of the insurance premium required Closing Date, the provisions of this Section 8.03 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. (e) Notwithstanding anything to purchase such irrevocable “tail” insurance policies. Buyer will not, and will not permit the contrary herein or in the Company toOrganizational Documents, cancel any Subsidiary Organizational Documents or change any Contract, the obligations of the Purchaser and the Surviving Corporation or its successor pursuant to this Section 8.03 (i) shall be subject to any limitation imposed by applicable Law and (ii) shall not be deemed to release any of the individuals who were officers or directors of the Company or any of its Subsidiaries at or prior to the Closing Date from his or her obligations pursuant to this Agreement or any Related Agreement, nor shall any of the individuals who were officers or directors of the Company or any of its Subsidiaries have any right of contribution, indemnification, or advancement or reimbursement of expenses from the Surviving Corporation or its successor or the Purchaser or any of their respective Subsidiaries (whether under this Agreement, the Company Organizational Documents, any Subsidiary Organizational Documents, any other Contract or otherwise) with respect to any Loss incurred or sustained by such insurance policy Person or any other Person (including any Indemnified Party (and including the Surviving Corporation)) in connection with or as a result of any respectIndemnifiable Matter (except to the extent such contribution, indemnification or advancement or reimbursement of expenses is actually recovered from a Third Party by the Surviving Corporation or its Subsidiaries from insurance, but net of any expenses incurred in obtaining such recovery, including collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums). Notwithstanding anything herein to the contrary, the Purchaser shall have no obligation to maintain the existence of the Surviving Corporation following the Effective Time.

Director and Officer Liability and Indemnification. (a) For a period of six years after Prior to or simultaneously with the Closing, Buyer willthe Purchaser shall, and will or shall cause the Company Surviving Entity to (or, at the Purchaser’s request and each of the Subsidiaries toexpense, cause their respective Governing Documents to contain provisions no less favorable with respect to the limitation or elimination of liability, indemnification and advancement of expenses for directors and officers (unless required by Law) than those included in such documents immediately prior to the Closing. (b) In addition to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no former or current director or officer of the Company or any of its Subsidiaries will be personally liable to the Company or its Subsidiaries for monetary damages for breach of 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 (ishall) 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 purchase 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 a prepaid insurance policy (i.e., “tail coverage”) for each individual who is currently covered by the directors and officers insurance of the Company or any of its Subsidiaries for events that occur prior to the Closing on terms no less favorable (including in an amount and scope at least as favorable as the Company’s existing policies with respect to matters existing scope) as the policy or policy(ies) maintained by the Company or any of its Subsidiaries immediately prior to the Closing for the benefit of such individuals for an aggregate period of six (6) years following the Closing Date with respect to claims arising from acts, events or omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policies, the “D&O Tail Policies”); provided, that the premium for the D&O Tail Policies shall be borne by the Purchaser; and, provided, further, that the Purchaser, the Surviving Entity and their respective Subsidiaries shall not be required, and the Purchaser shall not be required to cause the Surviving Entity or its Subsidiaries, to pay for the D&O Tail Policies in an aggregate amount in excess of three hundred percent (300%) of the annual premium currently paid as of the date hereof by the Company and its Subsidiaries for such insurance. (b) For a period of six (6) years after the Closing, the Purchaser shall not, and shall not permit the Surviving Entity or any of its Subsidiaries to, amend, repeal or otherwise modify any provision in the Surviving Entity’s or any of its Subsidiaries’ certificate or articles of incorporation or bylaws (or equivalent governing documents) relating to the exculpation or indemnification of any officers, directors or similar functionaries (unless to provide for greater exculpation or indemnification or unless required by Law) for acts or omissions occurring at or prior to the Closing, except (i) as required by applicable Law or (ii) unless the provisions are so amended, repealed or otherwise modified in connection with a restructuring or other reorganization in which the applicable governing documents of the Surviving Entity or the applicable Subsidiary include substantially equivalent exculpation or indemnification provisions with respect to acts or omissions occurring at or prior to the Closing. It is the intent of the parties hereto that the current and former officers, directors and similar functionaries of the Company and its Subsidiaries shall continue to be entitled to such exculpation and indemnification (including with respect to advancement of expenses) to the full extent of the Law in respect of such acts or omissions occurring at or prior to the Closing. The Purchaser agrees and acknowledges that it will use its commercially reasonable efforts to cause this Section 8.02 to be binding on the Purchaser’s successors and assigns. (c) If the Surviving Entity, its Subsidiaries or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, the Purchaser shall use its commercially reasonable efforts to cause proper provision to be made so that the successors and assigns of the Surviving Entity and its Subsidiaries shall assume all of the obligations set forth in this Section 8.02. (d) Notwithstanding anything in this Agreement to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date. Each of Buyer ) is made against any individual who was covered by directors’ and Seller will pay at Closing one half officers’ liability insurance, on or prior to the sixth (6th) anniversary of the insurance premium required Effective Time, the provisions of Section 8.02(b) and Section 8.02(c) shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. (e) The obligations under this Section 8.02 shall not be terminated or modified in such a manner as to purchase affect adversely any indemnitee or exculpee to whom this Section 8.02 applies without the consent of such irrevocable “tail” insurance policiesaffected indemnitee or exculpee. Buyer will notThe provisions of this Section 8.02 are intended for the benefit of, and will not permit be enforceable by (as express third-party beneficiaries), each current and former officer, director or similar functionary of the Company and its Subsidiaries and his or her heirs and representatives, successors and assigns and are in addition to, cancel and not in substitution for, any other rights to indemnification or change contribution that any such insurance policy in any respectperson may have had by contract or otherwise.