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

Director and Officer Liability and Indemnification. (a) Following the Closing, Seller shall renew for a period of at least six (6) years from the Closing Date any directors’ and officers’ liability insurance or fiduciary liability insurance covering the directors and officers of Company or any of its Subsidiaries in effect on the date of this Agreement (each, an “Existing Policy”), which renewal shall provide substantially the same kind and quality of coverage. Seller shall not terminate or agree to terminate any Existing Policy, or fail to renew or pay any premiums due under any Existing Policy unless, in either case, Seller obtains a replacement policy from an insurance carrier with the same or a better credit rating than the insurance carrier under such Existing Policy with benefits and levels of coverage substantially as favorable as such Existing Policy. Seller shall notify Acquiror at least five (5) Business Days prior to terminating or not renewing any Existing Policy and shall provide any documentation reasonably requested by Acquiror to demonstrate Seller’s compliance with the first sentence of this Section 6.1(a). Following the Closing, Seller shall cooperate with, and take all actions reasonably requested by, Acquiror, Company or any of its Subsidiaries, or their respective directors, officers or employees in order to permit such Persons to make and pursue any claims of such Persons under Seller’s insurance policies, to the extent such policies cover directors’ and officers’ liability insurance or fiduciary liability insurance, and Seller shall not take any action to withhold coverage of such Persons.

Director and Officer Liability and Indemnification. (a) Following the Closing, Seller shall renew for For a period of at least six (6) years from after the Closing Date any directors’ Date, the Purchaser shall not, and officers’ liability insurance or fiduciary liability insurance covering shall not permit the directors and officers of Company or any of its Subsidiaries to amend, repeal or modify any provision in effect on the date Company’s or any of this Agreement its Subsidiaries articles of incorporation or bylaws relating to the exculpation or indemnification of any current or former officer or director (each, an the “Existing PolicyD&O Indemnified Persons”) (unless required by Law), which renewal it being the intent of the parties that the D&O Indemnified Persons shall provide substantially continue to be entitled to such exculpation and indemnification to the same kind and quality fullest extent of coveragethe Law. Seller shall not terminate or agree to terminate any Existing PolicyAt the Closing, the Purchaser will, or fail to renew or will cause the Company to, obtain, maintain and fully pay any premiums due under any Existing Policy unlessfor, in either caseat the Seller’s sole expense, Seller obtains irrevocable “tail” insurance policies naming the D&O Indemnified Persons as direct beneficiaries with a replacement policy claims period of at least six years from the Closing Date from an insurance carrier with the same or a better credit rating than as the Company’s current insurance carrier under such Existing Policy with benefits respect to directors’ liability insurance in an amount and levels of coverage substantially scope at least as favorable as such Existing Policy. Seller shall notify Acquiror the Company’s existing policies with respect to matters existing or occurring at least five (5) Business Days or prior to terminating the Closing Date. The Purchaser will not, or not renewing will cause the Company to not, cancel or change such insurance policies in any Existing Policy and shall provide any documentation reasonably requested by Acquiror to demonstrate Seller’s compliance with respect. If the first sentence of this Section 6.1(a). Following Purchaser, the Closing, Seller shall cooperate with, and take all actions reasonably requested by, Acquiror, Company or any of its Subsidiaries, Subsidiaries or any of their respective directors, officers successors or employees in order to permit such Persons to make assigns (i) shall consolidate with or merge into any other Person and pursue any claims shall not be the continuing or surviving corporation or entity of such Persons under Seller’s insurance policiesconsolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person, to the extent such policies cover directors’ and officers’ liability insurance or fiduciary liability insurancethen, and Seller in each such case, proper provisions shall be made so that the successors and assigns of the Purchaser and the Company and its Subsidiaries shall assume all of the obligations set forth in this Section. The provisions of this Section 6.03 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 take in substitution for, any action other rights to withhold coverage of indemnification or contribution that any such Personsperson may have had by contract or otherwise.

Director and Officer Liability and Indemnification. (a) Following the Closing, Seller shall renew for For a period of at least six (6) years from after the Closing Date any directors’ Closing, Parent shall, and shall cause the Surviving Corporation to, continue in effect, and take all other reasonable actions necessary to maintain and provide “directors and officers’ liability ” insurance or fiduciary liability insurance covering under the directors and officers Company’s existing policy (provided that the Surviving Corporation may substitute therefor policies of Company or any of its Subsidiaries in effect on the date of this Agreement (each, an “Existing Policy”), which renewal shall provide substantially at least the same kind coverage containing terms that are not less favorable and quality of coverage. Seller such policy shall not terminate be from Parent’s current insurance carrier or agree to terminate any Existing Policy, or fail to renew or pay any premiums due under any Existing Policy unless, in either case, Seller obtains a replacement policy from an insurance carrier with the same or a better credit rating than as the Company’s insurance carrier under such Existing Policy as of the Closing Date or an insurance carrier with benefits and levels of coverage substantially as favorable as such Existing Policy. Seller shall notify Acquiror at least five (5) Business Days prior a “A VII” rating with respect to terminating or not renewing any Existing Policy and shall provide any documentation reasonably requested by Acquiror to demonstrate Seller’s compliance with the first sentence of this Section 6.1(a). Following the Closing, Seller shall cooperate with, and take all actions reasonably requested by, Acquiror, Company or any of its Subsidiaries, or their respective directors, officers or employees in order to permit such Persons to make and pursue any claims of such Persons under Seller’s insurance policies, to the extent such policies cover directors’ and officers’ liability insurance) with coverage levels at least as great as those in effect immediately prior to the Closing and covering those Persons who were directors and officers of the Company immediately prior to the Closing; provided, however, that in no event shall the Surviving Corporation be required to expend more than an amount equal to the current annual premium paid by the Company for such insurance; and provided further that if the annual premiums of such insurance or fiduciary liability insurancecoverage exceed such amount, and Seller the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such amount. The obligations under this Section 8.15(a) shall not take be terminated or modified in such a manner as to affect adversely any action indemnitee to withhold coverage whom this Section 8.15(a) applies without the consent (which shall not be unreasonably withheld, conditioned or delayed) of such Personsaffected indemnitee (it being expressly agreed that the indemnitees to whom this Section 8.15(a) applies and their respective heirs, successors and assigns shall be express third party beneficiaries of this Section 8.15(a)).

Director and Officer Liability and Indemnification. (a) Following the Closing, Seller shall renew for For a period of at least six (6) years from after the Closing Date any directors’ Closing, (i) Purchaser shall not and officers’ liability insurance or fiduciary liability insurance covering shall not permit the directors and officers of Company or any of its Subsidiaries identified on Schedule 9.6 (the “Designated Subsidiaries”) (or their successors as a result of any mergers) to, amend, repeal or modify any provision in the Company's or its Designated Subsidiaries' governance or other documents relating to exculpation or indemnification of former officers, directors or manager, in any manner that would adversely affect the rights thereunder of such former officers, directors or managers, unless such amendment repeal or modification is required by law, it being the intent of the parties that the officers, directors and managers of the Company and its Designated Subsidiaries prior to the Closing shall continue to be entitled to such exculpation and indemnification to the fullest extent permitted under the law of its jurisdiction of formation or incorporation, and (ii) Purchaser shall cause the Company and its Subsidiaries (or its successors as a result of any mergers) to maintain in effect directors' and officers' liability insurance with reputable and financially sound carriers covering the officers and directors of the Company and the Designated Subsidiaries who are currently covered by the current directors' and officers' liability insurance policies of the Seller, the Company or any Designated Subsidiaries with respect to matters occurring prior to the Closing on terms not less favorable to persons than those provided under the Company's directors' and officers' liability insurance as of the date of this Agreement (each, an “Existing Policy”), which renewal shall provide substantially the same kind Agreement. Purchaser and quality of coverage. Seller shall not terminate or agree to terminate any Existing Policysplit and have equal responsibility for all costs, or fail to renew or pay any premiums due under any Existing Policy unless, in either case, Seller obtains a replacement policy from an insurance carrier with fees and expenses of such insurance. Without limitation of the same or a better credit rating than the insurance carrier under such Existing Policy with benefits and levels of coverage substantially as favorable as such Existing Policy. Seller shall notify Acquiror at least five (5) Business Days prior to terminating or not renewing any Existing Policy and shall provide any documentation reasonably requested by Acquiror to demonstrate Seller’s compliance with the first sentence preceding portions of this Section 6.1(a). Following Section, it is understood and agreed that from and after the Closing, Seller shall cooperate withexcept as expressly set forth herein, none of Purchaser, the Company or any Subsidiary of the Company will be responsible for providing or maintaining directors' and take all officers' liability insurance coverage for the benefit of any person other than with respect to any person who first becomes an officer or director of any of the Purchaser, the Company or any Subsidiary of the Company after the Closing. Effective upon the Closing, the Company, for itself and its Subsidiaries, hereby waives any claims that the Company or any of its Subsidiaries currently has or, in the future, may have against any employees or representatives of the Company or any of its Subsidiaries for any of such Person's actions reasonably requested by, Acquiror, or omissions in their capacities as officers or directors of the Company or any of its Subsidiaries, or their respective directors, officers or employees in order to permit such Persons to make and pursue any claims of such Persons under Seller’s insurance policies, to the extent such policies cover directors’ and officers’ liability insurance or fiduciary liability insurance, and Seller shall not take any action to withhold coverage of such Persons.

Director and Officer Liability and Indemnification. (a) Following For the Closing, Seller shall renew for a duration of the period of at least six (6) years from commencing on the Closing Date any directors’ Date, the Purchaser shall not, and officers’ liability insurance or fiduciary liability insurance covering shall not permit the directors and officers of Company or any of its Subsidiaries to amend, repeal or otherwise modify any provision in effect on the date of this Agreement (each, an “Existing Policy”), which renewal shall provide substantially the same kind and quality of coverage. Seller shall not terminate or agree to terminate any Existing Policy, or fail to renew or pay any premiums due under any Existing Policy unless, in either case, Seller obtains a replacement policy from an insurance carrier with the same or a better credit rating than the insurance carrier under such Existing Policy with benefits and levels of coverage substantially as favorable as such Existing Policy. Seller shall notify Acquiror at least five (5) Business Days prior to terminating or not renewing any Existing Policy and shall provide any documentation reasonably requested by Acquiror to demonstrate Seller’s compliance with the first sentence of this Section 6.1(a). Following the Closing, Seller shall cooperate with, and take all actions reasonably requested by, Acquiror, Company Company's or any of its Subsidiaries' certificate of incorporation (or equivalent governing document) or bylaws relating to the exculpation or indemnification of any officers and/or directors (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 to the full extent of the law. In addition, the Purchaser shall cause the Surviving Corporation to maintain in effect for the duration of the period of six years commencing on the Closing Date directors' and officers' liability insurance covering those persons who are covered by the Company's directors' and officers' liability insurance policy immediately prior to the Effective Time with coverage limits not lower in any respect than, and otherwise on terms no less favorable to the insured parties than, the Company's insurance coverage as in effect immediately prior to the Effective Time. Purchaser may satisfy its obligations under this Section 5.02 by purchasing on or prior to the Closing Date a "tail" policy under the Company's existing directors' and officers' insurance policy that (i) has an effective term of six years from the Effective Time, (ii) covers those persons who are currently covered, or their respective directorswill be covered on or prior to the Effective Time, officers by such insurance policy in effect on the Closing Date for actions and omissions occurring on or employees prior to the Effective Time, and (iii) contains terms and conditions (including without limitation coverage amounts) that are at least as favorable in order to permit such Persons to make the aggregate as the terms and pursue any claims conditions of such Persons under Seller’s insurance policies, in effect immediately prior to the extent such policies cover directors’ and officers’ liability insurance or fiduciary liability insuranceEffective Time. In the event that the Surviving Corporation would be required to expend more than $250,000 for a "tail" policy ("Maximum Premium"), and Seller the Surviving Corporation shall not take any action to withhold coverage obtain the maximum policy limit amount of such Personsinsurance obtainable for the Maximum Premium.

Director and Officer Liability and Indemnification. (a) Following For the six-year period immediately following the Closing, Seller the Purchaser shall renew not, and shall not permit the Surviving Corporation or any of its Subsidiaries to, amend, repeal or otherwise modify any provision in the Surviving Corporation’s or any of its Subsidiaries’ certificate or articles of incorporation or bylaws (or equivalent governing document) relating to the exculpation, indemnification or advancement of expenses of any current or former officers and directors unless required to do so by law, it being the intent of the parties that such Persons shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the full extent of the law and as otherwise provided for a in the provisions of such documents. In addition, the Purchaser shall cause the Surviving Corporation to maintain in effect for the duration of the period of at least six (6) years from commencing on the Closing Date any directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s or fiduciary its Subsidiaries’ liability insurance covering the policies with respect to directors and officers of Company with coverage limits not lower in any respect than, and otherwise on terms no less favorable to the insured parties than, the Company’s or any of its Subsidiaries Subsidiaries’ insurance coverage as in effect on the date of hereof; provided, however, that this Agreement Section 7.03 shall be deemed to have been satisfied if a prepaid policy or policies (eachi.e., an “Existing Policytail coverage”), ) have been obtained by the Company which renewal shall policy or policies provide substantially the same kind directors and quality of coverage. Seller shall not terminate or agree to terminate any Existing Policy, or fail to renew or pay any premiums due under any Existing Policy unless, in either case, Seller obtains a replacement policy from an insurance carrier officers with the same coverage described in this Section 7.03 for an aggregate period of not less than six (6) years with respect to claims arising from acts, events or a better credit rating than the insurance carrier under such Existing Policy with benefits and levels of coverage substantially as favorable as such Existing Policy. Seller shall notify Acquiror omissions that occurred at least five (5) Business Days or prior to terminating or not renewing any Existing Policy and shall provide any documentation reasonably requested by Acquiror to demonstrate Seller’s compliance with the first sentence of this Section 6.1(a). Following the Closing, Seller shall cooperate with, and take all actions reasonably requested by, Acquiror, Company or any of its Subsidiaries, or their respective directors, officers or employees in order to permit such Persons to make and pursue any claims of such Persons under Seller’s insurance policies, including with respect to the extent transactions contemplated by this Agreement. Any prepaid premiums with respect to such policies cover directors’ and officers’ liability insurance or fiduciary liability insurance, and Seller “tail coverage” shall not take any action to withhold coverage of such Personsbe included as a Transaction Expense.

Director and Officer Liability and Indemnification. From the Closing through the sixth (6th) anniversary of the Closing Date, Buyers will not, and Buyer Guarantor will not permit any of Buyers or the Transferred Companies to, amend, repeal, or otherwise modify any provision in any of the Transferred Companies' Organizational Documents relating to the exculpation, indemnification, or advancement of expenses of any current or former officers or directors with respect to acts or omissions prior to the Closing, unless required to do so by applicable Law, it being the intent of the parties hereto that such Persons will continue to be entitled to such exculpation, indemnification, and advancement of expenses to the full extent of applicable Law and as otherwise provided for in the provisions of such Organizational Documents. In addition, Buyers, at their sole expense, will, and Buyer Guarantor will cause Buyers and the Transferred Companies to, maintain in effect, from the Closing through the sixth (6th) anniversary of the Closing Date, directors' and officers' liability insurance covering those Persons who either (a) Following are covered by the Transferred Companies' liability insurance policies as of date of this Agreement and (b) are hired after the date of this Agreement in accordance with Section 5.3 (Negative Covenants) and are covered by the Transferred Companies' liability insurance policies as of immediately prior to the Closing, Seller shall renew for a period of at least six (6) years from with coverage limits not lower in any respect than, and otherwise on terms no less favorable to the Closing Date any directors’ and officers’ liability insured parties than, the Transferred Companies' insurance or fiduciary liability insurance covering the directors and officers of Company or any of its Subsidiaries coverage as in effect on the date of this Agreement Agreement; provided, that in no event will Buyers or Buyer Guarantor be required to expend on such insurance an amount in excess of two hundred fifty percent (each, an “Existing Policy”), which renewal shall provide substantially 250%) of the same kind and quality annual premium of coverage. Seller shall not terminate such insurance coverage paid by or agree to terminate any Existing Policy, or fail to renew or pay any premiums due under any Existing Policy unless, in either case, Seller obtains a replacement policy from an insurance carrier with on behalf of the same or a better credit rating than Transferred Companies as of the insurance carrier under such Existing Policy with benefits and levels of coverage substantially as favorable as such Existing Policy. Seller shall notify Acquiror at least five (5) Business Days prior to terminating or not renewing any Existing Policy and shall provide any documentation reasonably requested by Acquiror to demonstrate Seller’s compliance with the first sentence date of this Section 6.1(a)Agreement. Following the Closing, Seller shall cooperate with, and take all actions reasonably requested by, Acquiror, Company If any of Buyers or any of its Subsidiariesthe Transferred Companies, or any of their respective directorssuccessors or assigns, officers consolidates with or employees in order to permit such Persons to make merges into 66 any other Person and pursue any claims is not the continuing or surviving corporation or entity of such Persons under Seller’s insurance policiesconsolidation or merger, or transfers or conveys substantially all of its properties or assets to the extent such policies cover directors’ and officers’ liability insurance or fiduciary liability insuranceany Person, then, in each case, proper provision will be made, and Seller shall not take any action Buyer Guarantor will cause proper provision to withhold coverage be made, so that the successors and assigns of such PersonsBuyer or such Transferred Company, as the case may be, will readily assume the obligations set forth in this Section 5.18.