Common use of D&O Liability Insurance Clause in Contracts

D&O Liability Insurance. (a) The Company shall obtain and maintain a policy or policies of insurance (“D&O Liability Insurance”) with reputable insurance companies providing liability insurance for directors of the Company in their capacities as such (and for any capacity in which any director of the Company serves any other Enterprise at the request of the Company), in respect of acts or omissions occurring while serving in such capacity, on terms with respect to coverage and amount (including with respect to the payment of expenses) no less favorable than those of such policy in effect on the date hereof; provided that such coverage and amounts are available on commercially reasonable terms. (b) Indemnitee shall be covered by the Company’s D&O Liability Insurance policies as in effect from time to time in accordance with the applicable terms to the maximum extent of the coverage available for any other director under such policy or policies. The Company shall, promptly after receiving notice of a Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), give notice of such Proceeding to the insurers under the Company’s D&O Liability Insurance policies in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable actions to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Company under this Agreement. (c) Upon request by Indemnitee, the Company shall provide to Indemnitee copies of the D&O Liability Insurance policies as in effect from time to time. The Company shall promptly notify Indemnitee of any material changes in such insurance coverage. (d) The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance provided by [Insert name of applicable Sponsor] and/or certain of its affiliates (collectively, the “Sponsor Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Sponsor Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of Expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses and Liabilities to the extent legally permitted and as required by the terms of this Agreement and the Company’s certificate of incorporation and bylaws (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Sponsor Indemnitors, and, (iii) that it irrevocably waives, relinquishes and releases the Sponsor Indemnitors from any and all claims against the Sponsor Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Sponsor Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Sponsor Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Sponsor Indemnitors are express third party beneficiaries of the terms of this Section 7.01(d).]*

D&O Liability Insurance. For a period of at least six (6) years following the Closing, Parent shall cause the Surviving Corporation to maintain (or cause to be maintained), in effect, either (a) The the current policy of directors’ and officers’ liability insurance maintained by the Company shall obtain and maintain a policy or Group (provided that the Surviving Corporation may substitute therefor policies of insurance (“D&O Liability Insurance”at least the same coverage and amounts containing terms and conditions which are no less advantageous in any material respect to the insured parties thereunder) with reputable insurance companies providing liability insurance for directors of the Company in their capacities as such (and for any capacity in which any director of the Company serves any other Enterprise at the request of the Company), in respect of acts or omissions occurring while serving in such capacity, on terms with respect to coverage and amount claims arising from facts or events that occurred at or before the Closing (including consummation of the Transactions) or (b) a run off (i.e., “tail”) policy or endorsement with respect to the payment current policy of expensesdirectors’ and officers’ liability insurance covering claims asserted within six (6) no less favorable than those years after the Closing arising from facts or events that occurred at or before the Closing (including consummation of such policy in effect on the date hereofTransactions); provided that in no event shall Parent or the Surviving Corporation expend or be required to expend, on an annual basis, an amount in excess of 300% of the last annual premium paid as of the date hereof by the Company for any such insurance (the “Premium Cap”); provided, further, that if any such annual expense at any time would exceed the Premium Cap, then the Surviving Corporation will cause to be maintained policies of insurance which provide the maximum coverage available at an annual premium equal to the Premium Cap. Parent and amounts are available on commercially reasonable terms. (b) Indemnitee the Surviving Corporation shall be covered by responsible for all costs associated with such policies or endorsements. Such policies or endorsements shall name as insureds thereunder all present and former directors and officers of the Company, the Surviving Corporation and the Company’s D&O Liability Insurance policies as in effect from time to time in accordance with the applicable terms to the maximum extent of the coverage available for any other director under such policy or policies. The Company shall, promptly after receiving notice of a Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), give notice of such Proceeding to the insurers under the Company’s D&O Liability Insurance policies in accordance with the procedures set forth in the respective policiesSubsidiaries. The Company shall thereafter take all necessary or desirable actions to cause such insurers to pay, purchase a tail policy for directors’ and officers’ liability insurance on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of described in this Section 5.4 (including subject to the Premium Cap) and Parent shall either fully pay or reimburse the Company for such policiespolicy prior to the Effective Time. The failure or refusal of any such insurer From and following the Closing Date, Parent shall cause the Surviving Corporation to pay any such amount shall not affect or impair the obligations abide by and honor each of the Company under this Agreement. (c) Upon request by IndemniteeSurviving Corporation’s and its Subsidiaries’ contractual obligations, the Company shall provide to Indemnitee copies of the D&O Liability Insurance policies as in effect from time to time. The Company shall promptly notify Indemnitee of any material changes in such insurance coverage. (d) The Company hereby acknowledges that Indemnitee has certain rights to indemnificationif any, advancement of expenses and/or insurance provided by [Insert name of applicable Sponsor] and/or certain of its affiliates (collectively, the “Sponsor Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Sponsor Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required directors’ and officers’ liability insurance to advance the full amount of Expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses and Liabilities to the extent legally permitted and as required by the terms of this Agreement and the Company’s certificate of incorporation and bylaws (or any other agreement between the Company and Indemnitee)Person, without regard to any rights Indemnitee may have against the Sponsor Indemnitors, and, (iii) that it irrevocably waives, relinquishes and releases the Sponsor Indemnitors from any and all claims against the Sponsor Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Sponsor Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Sponsor Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Sponsor Indemnitors are express third party beneficiaries of the terms of this Section 7.01(d)contractual obligation.]*

D&O Liability Insurance. (a) The Company WIND shall obtain and maintain a policy or policies of insurance (“D&O Liability Insurance”) with reputable insurance companies with A.M. Best rating of “A” or better (the “D&O Insurers”) providing liability insurance for directors an appropriate level of coverage, both for Liabilities and Expenses that WIND has the Company in their capacities power to indemnify against and, to the extent available on commercially reasonable terms as such determined by the Board, Liabilities and Expenses that WIND does not have the power to indemnify against, under the circumstances existing at the time (as determined from time to time by the Board) for each Corporate Status for which Indemnitee serves (and for any capacity in which any director directors, officers, trustees, general partners, managing members, fiduciaries, board of the Company serves directors’ committee members, employees or agents of any other Enterprise which such person serves at the request of the Company), WIND) in respect of acts or omissions occurring while serving in such capacity, on terms with respect to coverage and amount (including with respect to the payment of expenses) no less favorable than those of such policy in effect on the date hereof; provided that such coverage and amounts are available on commercially reasonable terms. (b) Upon request by Indemnitee, WIND shall provide copies of all policies of D&O Liability Insurance obtained and maintained in accordance with Section 7.01(a) of this Agreement. WIND shall promptly notify Indemnitee of any changes in such insurance coverage. (c) Indemnitee shall be covered by the Company’s D&O Liability Insurance policies as in effect from time to time Policy in accordance with the applicable its terms to the maximum extent of the coverage available for any similarly situated director of WIND (or any such similarly situated director, officer, trustee, general partner, managing member, fiduciary, board of directors’ committee member, employee or agent of any other director Enterprise which such person is or was serving at the request of WIND) under such policy or policiespolicy. The Company shall, promptly after receiving If WIND receives notice from any source of a Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), WIND shall give prompt notice of such Proceeding to the insurers under the Company’s D&O Liability Insurance policies Insureres in accordance with the procedures set forth in the respective policiesD&O Insurance Policies. The Company WIND shall thereafter take all necessary or desirable actions action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Company WIND under this Agreement. (c) Upon request by Indemnitee, the Company . WIND shall provide the insurance coverage called for hereby to Indemnitee copies for a period of the D&O Liability Insurance policies as at least six (6) years after Indemnitee is no longer serving in effect from time to time. The Company shall promptly notify Indemnitee of any material changes in such insurance coverageCorporate Status. (d) The Company [WIND hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance provided by [Insert name of applicable Sponsor[ ] and/or certain of its affiliates (collectively, the “Sponsor Indemnitors”). The Company WIND hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Sponsor Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of Expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses and Liabilities to the extent legally permitted and as required by the terms of this Agreement and the CompanyWIND’s certificate Certificate of incorporation Incorporation and bylaws Bylaws (or any other agreement between the Company WIND and Indemnitee), without regard to any rights Indemnitee may have against the Sponsor Indemnitors, and, (iii) that it irrevocably waives, relinquishes and releases the Sponsor Indemnitors from and shall use commercially reasonable efforts to cause each D&O Insurer to waive, relinquish and release any and all claims against the Sponsor Indemnitors for contribution, exoneration, contribution, indemnification, subrogation or any other recovery of any kind in respect thereof. The Company WIND further agrees that no advancement or payment by the Sponsor Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company WIND shall affect the foregoing and the Sponsor Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the CompanyWIND. The Company WIND and Indemnitee agree that the Sponsor Indemnitors are express third party beneficiaries of the terms of this Section 7.01(d)) and the other terms of this Agreement.]*

D&O Liability Insurance. (a) The Company Corporation shall obtain and maintain a policy or policies of insurance (“D&O Liability Insurance”) with reputable insurance companies providing liability insurance for directors of the Company Corporation in their capacities as such (and for any capacity in which any director of the Company Corporation serves any other Enterprise entity at the request of the CompanyCorporation), in respect of acts or omissions occurring while serving in such capacity, on terms with respect to coverage and amount (including with respect to the payment of expenses) no less favorable than those of such policy in effect on the date hereof; provided hereof except for any changes approved by the Board prior to a Change in Control, and except where not practical to obtain such coverage. Notwithstanding the foregoing, the Corporation may agree to implement changes to the scope (but not the amount) of coverage that such do not, taken as a whole, materially reduce the scope of coverage and amounts are available on commercially reasonable termsfor the directors. (b) Indemnitee The Director shall be covered by the Company’s D&O Liability Insurance policies as in effect from time to time in accordance with the applicable terms to the maximum extent of the coverage available for any other director under such policy or policies. The Company Corporation shall, promptly after upon receiving notice of a Proceeding as to which Indemnitee the Director is a party or a participant (as a witness or otherwise), give notice of such Proceeding to the insurers under the CompanyCorporation’s D&O Liability Insurance policies in accordance with the procedures set forth in the respective such policies. The Company Corporation shall thereafter take all necessary or desirable actions to cause such insurers to pay, on behalf of Indemniteethe Director, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Company Corporation under this Agreement. (c) Upon request by Indemniteethe Director, the Company Corporation shall provide to Indemnitee the Director copies of the D&O Liability Insurance policies as in effect from time to time. The Company Corporation shall promptly notify Indemnitee the Director of any material changes in such insurance coverage. (d) The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance provided by [Insert name of applicable Sponsor] and/or certain of its affiliates (collectively, the “Sponsor Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Sponsor Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of Expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses and Liabilities to the extent legally permitted and as required by the terms of this Agreement and the Company’s certificate of incorporation and bylaws (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Sponsor Indemnitors, and, (iii) that it irrevocably waives, relinquishes and releases the Sponsor Indemnitors from any and all claims against the Sponsor Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Sponsor Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Sponsor Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Sponsor Indemnitors are express third party beneficiaries of the terms of this Section 7.01(d).]*

D&O Liability Insurance. (a) The Company shall obtain and maintain a policy or policies of insurance (“D&O Liability Insurance”) with reputable insurance companies providing liability insurance for directors of the Company in their capacities as such (and for any capacity in which any director of the Company serves any other Enterprise at the request of the Company), in respect of acts or omissions occurring while serving in such capacity, on terms with respect to coverage and amount (including with respect to the payment of expenses) no less favorable than those of such policy in effect on the date hereof; provided that such coverage and amounts are available on commercially reasonable terms. (b) Indemnitee shall be covered by the Company’s D&O Liability Insurance policies as in effect from time to time in accordance with the applicable terms to the maximum extent of the coverage available for any other director under such policy or policies. The Company shall, promptly after receiving notice of a Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), give notice of such Proceeding to the insurers under the Company’s D&O Liability Insurance policies in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable actions to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Company under this Agreement. (c) Upon request by Indemnitee, the Company shall provide to Indemnitee copies of the D&O Liability Insurance policies as in effect from time to time. The Company shall promptly notify Indemnitee of any material changes in such insurance coverage. (d) The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance provided by [Insert name of applicable Sponsor] and/or certain of its affiliates (collectively, ,the “Sponsor Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Sponsor Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of Expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses and Liabilities to the extent legally permitted and as required by the terms of this Agreement and the Company’s certificate of incorporation and bylaws (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Sponsor Indemnitors, and, (iii) that it irrevocably waives, relinquishes and releases the Sponsor Indemnitors from any and all claims against the Sponsor Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Sponsor Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Sponsor Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Sponsor Indemnitors are express third party beneficiaries of the terms of this Section 7.01(d).]*

D&O Liability Insurance. (a) The Company shall obtain and maintain a policy or policies of insurance (“D&O Liability Insurance”) with reputable insurance companies with A.M. Best ratings of “A” or better, providing liability insurance for Indemnitee and the other directors of the Company in their capacities as such (and for serving in any capacity in which any director of the Company serves any other Enterprise at the request of the CompanyCorporate Status), in respect of acts claims asserted against, and incurred by, Indemnitee or omissions occurring while serving on Indemnitee’s behalf by reason of the fact that Indemnitee is or was or has agreed to serve in any Corporate Status, whether or not the Company would have the power to indemnify Indemnitee against such capacity, on liability under the provisions of this Agreement or otherwise. The D&O Liability Insurance shall have such terms with respect to coverage and amount (including with respect to the payment of expenses) that are no less favorable than those of such policy in effect on the date hereof; provided that such coverage and amounts are available on commercially reasonable terms. (b) Indemnitee shall be covered by the Company’s D&O Liability Insurance policies as in effect from time to time in accordance with the applicable terms to the maximum extent of the coverage available for any other director under such policy or policies. The Company shall, promptly after receiving notice of a Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), give notice of such Proceeding to the insurers under the Company’s D&O Liability Insurance policies in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable actions to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Company under this Agreement. (c) Upon request by Indemnitee, the Company shall provide to Indemnitee copies of the D&O Liability Insurance policies as in effect from time to time. The Company shall promptly notify Indemnitee in writing of any material changes in such insurance coverage. (d) The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance provided by [Insert name of applicable Sponsor] and/or certain of its affiliates (collectively, the “Sponsor Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are the primary source of indemnification and advancement of expenses of Indemnitee for any Expenses or Liabilities for which Indemnitee is entitled to indemnification under this Agreement and any obligation of the Sponsor Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondarysecondary to the Company’s obligation), (ii) that it shall be required to advance the full amount of Expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses and Liabilities to the extent legally permitted and as required by the terms of this Agreement and the Company’s certificate memorandum of incorporation association and bylaws Bye-laws (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Sponsor Indemnitors, and, (iii) that it irrevocably waives, relinquishes and releases the Sponsor Indemnitors from any and all claims against the Sponsor Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Sponsor Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Sponsor Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Sponsor Indemnitors are express third party beneficiaries of the terms of this Section 7.01(d).]*