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. (a) For a period of six (6) years after the Closing, Buyer willshall not, and will cause shall not permit the Company and each Group to, amend, repeal or modify any provision in any member of the Subsidiaries toCompany Group’s certificate of formation, cause their respective Governing Documents limited liability company agreement, or other equivalent governing documents, or in any indemnification agreement provided to contain provisions no less favorable with respect Buyer between a member of the Company Group and any current or former officers, directors or managers of any member of the Company Group (each, a “D&O Indemnified Person”), in each case existing as of the date hereof in a manner that would adversely affect the rights to exculpation, indemnification or advancement of expenses of any D&O Indemnified Person (unless required by Law), it being the limitation or elimination intent of liabilitythe Parties that the D&O Indemnified Persons will continue to be entitled to such exculpation, indemnification and advancement of expenses for directors and officers (unless required by Law) than those included in such documents immediately prior to the Closingfull extent of the Law. (b) In addition to Buyer shall, or shall cause the other rights provided for in this Section 7.02 and not in limitation thereofCompany Group to, from and after at Buyer’s expense, at 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 obtain and fully pay for for, and following the Closing maintain in effect, irrevocable “tail” insurance policies naming the D&O Indemnified Persons as direct beneficiaries (with respect to matters existing or occurring at or prior to the Closing) with a claims coverage period of at least six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as the CompanyCompany Group’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope of coverage at least as favorable as the CompanyCompany Group’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 policiesTail Policy”). Buyer will shall not, and will not permit shall cause the Company Group not to, cancel or change such insurance policy policies in any respect. (c) In the event that all or substantially all of the equity or assets of any member of the Company Group are sold, or any member of the Company Group merges or otherwise combines with another Person, in each case whether in one transaction or a series of transactions, then Buyer and the Company Group will, in each such case, ensure that the successors and assigns of the Company Group, as applicable, assume the obligations set forth in this Section 7.02. The provisions of this Section 7.02(c) will apply to all of the successors and assigns of the Company Group.

Director and Officer Liability and Indemnification. (a) For a period of at least six (6) years after from the ClosingClosing Date, Buyer willthe Surviving Corporation will not, and Buyer will cause not permit the Company and each of the Subsidiaries Surviving Corporation to, cause their respective Governing Documents to contain provisions no less favorable with respect amend, repeal or modify any provision in such Person’s certificate of incorporation, bylaws or in any agreement, relating to the limitation exculpation or elimination of liabilityindemnification of, indemnification and or advancement of expenses for directors and officers to, any present (unless required by Law) than those included in such documents as of immediately prior to the Closing. (bEffective Time) In addition to the other rights provided for in this Section 7.02 and not in limitation thereof, from and after the Closing, no or former or current director or officer of the Company or any of its Subsidiaries will be personally liable (each, a “D&O Indemnified Person”) for acts and omissions occurring prior to the Company Effective Time as in effect immediately prior to the Effective Time in any manner adverse to any D&O Indemnified Person, and Buyer will cause the Surviving Corporation to observe and fulfill all such provisions. (b) At 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 to 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 will obtain and fully pay for irrevocable “tail” insurance policies naming the D&O Indemnified Persons and any other persons covered by the Company’s and its Subsidiaries’ existing directors’ and officers’ insurance policies, as direct beneficiaries with a claims period of at least six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance 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 before the Closing DateEffective Time. Each of Buyer and Seller will pay at Closing one half of the insurance premium required to purchase such irrevocable “tail” insurance policies. Buyer Surviving Corporation will not, and will cause their Subsidiaries not permit the Company to, cancel or change such insurance policy policies in any respect. (c) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties, rights or assets to any Person, then, in each case, the successors and assigns of such Persons or properties, rights or assets, as the case may be, must expressly assume in writing and be bound by the obligations set forth in this Section 6.05 as a condition of succession of assignment. (d) This Section 6.05 is intended to be for the benefit of each of the D&O Indemnified Persons and may be enforced by any such D&O Indemnified Person as if such D&O Indemnified Person were a party to this Agreement. The obligations of Buyer and the Surviving Corporation under this Section 6.05 will not be terminated or modified in such a manner as to adversely affect any Person to whom this Section 6.05 applies without the consent of such affected Person.