Common use of Tail Insurance Clause in Contracts

Tail Insurance. Prior to the Closing, the Company shall purchase an extended reporting period endorsement under the Company’s existing directors’ and officers’ liability insurance coverage (the “D&O Tail”) for the Acquired Companies’ directors and officers in a form acceptable to Purchaser, which shall provide such directors and officers with coverage for seven (7) years following the Closing and shall have a scope substantially similar to the existing coverage under, and have other terms not materially less favorable to the insured Persons than the terms of the directors’ and officers’ liability insurance coverage currently maintained by the Company. For the period commencing on the Closing Date and ending on the seventh (7th) anniversary of the Closing Date, Purchaser (including any of its Affiliates) shall cause the Company and, to the extent applicable, any of its successors and assigns, to (i) maintain the D&O Tail in full force and effect (it being understood that Purchaser and its Affiliates shall not be responsible for the payment of any additional premiums, fees or other costs thereunder after the Closing) and not to cancel, reduce or modify the terms of the D&O Tail, and (ii) continue to honor the obligations (including, without limitation, any indemnification, insurance or exculpation provisions) thereunder, and to fulfill and honor in all respects the obligations of the Company (or any of its Affiliates) to its current and former directors and officers as of immediately prior to the Closing (the “D&O Indemnified Parties”) pursuant to (A) indemnification agreements with the Company in effect on the date hereof and pursuant to the Charter Documents of the Company, in each case, in effect on the date hereof and Made Available to Purchaser and listed on Section 6.12 of the Disclosure Schedule or entered into after the date hereof with Purchaser’s consent (the “D&O Indemnification Agreements”), which D&O Indemnification Agreements shall, for the avoidance of doubt, survive the Closing and continue in full force and effect in accordance with their respective terms; or (B) any indemnification and release provisions under the Company Articles (or any Charter Document of the Company), to the extent applicable to any D&O Indemnified Party, and Purchaser agrees to cause the Acquired Companies to apply such provisions in the same manner following the Closing and at such time as such Persons are no longer directors, officers or board observers of the Acquired Companies, with respect to claims or events arising out of matters occurring at or prior to the Closing. This Section 6.12 shall survive the Closing, is intended to benefit and shall be enforceable by each D&O Indemnified Party and their respective heirs, are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such D&O Indemnified Party may have against Purchaser, the Company or their respective Affiliates first arising after the earlier of the Closing Date and the termination of this Agreement by contract or otherwise, shall be binding on all successors and permitted assigns of Purchaser and the Company and shall not be terminated or modified in a manner as to adversely affect the

Tail Insurance. Prior (a) Buyer shall maintain (and Seller and Holding Company shall cooperate with Buyer to enable Buyer prior to the ClosingClosing Date to obtain) for a period of six (6) years after the Closing Date, a tail insurance policy (the Company shall purchase an extended reporting period endorsement under the “Tail”) on terms no less favorable than Seller’s and Holding Company’s existing directors’ and officers’ liability insurance policy, including with respect to levels coverage (and insurance limits and with an insurer that has, at the “D&O Tail”) for time such coverage is written, the Acquired Companies’ directors and officers in a form acceptable to Purchaser, which shall provide such directors and officers with coverage for seven (7) years following same or higher A. M. Best rating as the Closing and shall have a scope substantially similar to the existing coverage under, and have other terms not materially less favorable to the insured Persons than the terms of the current primary directors’ and officers’ liability insurance insurer covering directors, officers and employees of Seller and Holding Company and all directors, officers, and employees of Seller and Holding Company serving as fiduciaries under any of the respective benefits plans of Seller and Holding Company (the “Covered Parties”); (provided, that, Buyer may substitute therefor (i) policies with comparable coverage currently maintained by and amounts containing terms and conditions which are substantially no less advantageous or (ii) with the Company. For the period commencing consent of Seller, any other policy with respect to claims arising from facts or events which occurred on or prior to the Closing Date and ending on covering persons who are currently covered by such insurance). (b) The provisions of this Section 8.05 shall survive the seventh (7th) anniversary Closing and are intended to benefit, and shall be enforceable by, each of the Closing DateCovered Parties, Purchaser (including any of its Affiliates) shall cause the Company and, to the extent applicable, any of its successors and assigns, to (i) maintain the D&O Tail in full force and effect (it being understood that Purchaser and its Affiliates shall not be responsible for the payment of any additional premiums, fees or other costs thereunder after the Closing) and not to cancel, reduce or modify the terms of the D&O Tail, and (ii) continue to honor the obligations (including, without limitation, any indemnification, insurance or exculpation provisions) thereunder, and to fulfill and honor in all respects the obligations of the Company (or any of its Affiliates) to its current and such former directors and officers of Seller, and all such directors and officers of Seller and their subsidiaries serving as of immediately prior to the Closing (the “D&O Indemnified Parties”) pursuant to (A) indemnification agreements with the Company in effect on the date hereof and pursuant to the Charter Documents fiduciaries under any of the Companyrespective benefits plans of Seller and his or her heirs, in each caseexecutors, in effect on the date hereof and Made Available to Purchaser and listed on Section 6.12 of the Disclosure Schedule representatives or entered into after the date hereof with Purchaser’s consent (the “D&O Indemnification Agreements”), which D&O Indemnification Agreements shall, for the avoidance of doubt, survive the Closing and continue in full force and effect in accordance with their respective terms; or (B) any indemnification and release provisions under the Company Articles (or any Charter Document of the Company), to the extent applicable to any D&O Indemnified Party, and Purchaser agrees to cause the Acquired Companies to apply such provisions in the same manner following the Closing and at such time as such Persons are no longer directors, officers or board observers of the Acquired Companies, with respect to claims or events arising out of matters occurring at or prior to the Closingadministrators. This Section 6.12 shall survive After the Closing, is intended to benefit and shall be enforceable by each D&O Indemnified Party and their respective heirs, are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such D&O Indemnified Party may have against Purchaser, the Company or their respective Affiliates first arising after the earlier obligations of the Closing Date and the termination of Buyer under this Agreement by contract or otherwise, shall be binding on all successors and permitted assigns of Purchaser and the Company and Section 8.05 shall not be terminated or modified in such a manner as to adversely affect theany Covered Party unless the affected Covered Party shall have consented in writing to such termination or modification. (c) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Seller or Holding Company for any of its respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 8.05 is not prior to or in substitution for any such claims under such policies. (d) Nothing in this Agreement is intended to or shall be construed to obligate the Buyer to indemnify, defend or hold harmless the Covered Parties beyond the provision of the Tail required pursuant to this Section 8.05. Buyer shall have no obligation to continue the Tail beyond the period set forth in Section 8.05(a)and shall have no obligations to the Covered Parties in excess of any coverage afforded to a Covered Party by the Tail, or to the extent that the Tail does not provide coverage to the affected Covered Party.

Tail Insurance. (a) Prior to or simultaneously with the Closing, Seller shall cause the Company shall to purchase an a six (6) year extended reporting period endorsement under to the Company’s 's currently existing directors’ and officers’ liability insurance coverage (the “D&O Tail”) for the Acquired Companies’ directors and officers in a form acceptable to Purchaser, which shall provide such directors and officers with coverage for seven (7) years following the Closing and shall have a scope substantially similar to the existing coverage under, and have other terms not materially less favorable to the insured Persons than the terms of the directors’ and officers’ liability insurance coverage currently maintained by the Company. For the period commencing on the Closing Date and ending on the seventh (7th) anniversary of the Closing Date, Purchaser (including any of its Affiliates) shall cause the Company and, to the extent applicable, any of its successors and assigns, to (i) maintain the D&O Tail in full force employment practices liability insurance policy and effect (it being understood that Purchaser and its Affiliates shall not be responsible for the payment of any additional premiums, fees or other costs thereunder after the Closing) and not to cancel, reduce or modify the terms of the D&O Tail, fiduciary liability insurance policy and (ii) continue to honor directors', managers' and officers' liability insurance, which provide insurance coverage for each of the obligations (includingindividuals who were officers, without limitationdirectors, any indemnification, insurance managers or exculpation provisions) thereunder, and to fulfill and honor in all respects the obligations similar functionaries of the Company (at or any of its Affiliates) to its current and former directors and officers as of immediately prior to the Closing (the “D&O Indemnified Parties”) pursuant to (A) indemnification agreements with the Company in effect on the date hereof and pursuant to the Charter Documents of the Company, in each case, in effect on the date hereof and Made Available to Purchaser and listed on Section 6.12 of the Disclosure Schedule or entered into after the date hereof with Purchaser’s consent (the “D&O Indemnification Agreements”), which D&O Indemnification Agreements shall, for the avoidance benefit of doubt, survive the Closing and continue in full force and effect in accordance with their respective terms; or (B) any indemnification and release provisions under the Company Articles (or any Charter Document of the Company), to the extent applicable to any D&O Indemnified Party, and Purchaser agrees to cause the Acquired Companies to apply such provisions in the same manner following the Closing and at such time as such Persons are no longer directors, officers or board observers of the Acquired Companies, individuals with respect to claims arising from acts, events or events arising out of matters occurring omissions that occurred at or prior to the Closing, including with respect to the transactions contemplated by this Agreement (such policies, the "Tail Policies"). This Section 6.12 Premiums and other costs of the Tail Policies shall survive be borne 100% by Seller as a Seller Transaction Expense. (b) For a period of six (6) years after the Closing, is intended to benefit Buyer shall not, and shall not permit the Company to, amend, repeal or otherwise modify any provision in the Company's Organizational Documents relating to the exculpation or indemnification of any officers, directors, managers or similar functionaries for the period prior to the Closing if that amendment, repeal or modification would adversely affect the rights of any officers, directors, managers or similar functionaries to the exculpation, indemnification or advancement of expenses for the period prior to the Closing, or if that amendment, repeal or modification would have the effect of impairing the coverage available under the Tail Policies (or an extended reported period endorsement with respect thereto). Xxxxx agrees and acknowledges that this Section 6.08 shall be binding on Xxxxx's successors and assigns. Nothing contained herein shall restrict or limit the rights of the Seller Parties to coverage under the Tail Policies, and Buyer will reasonably cooperate with Seller Parties in connection with accessing such coverage. (c) If Buyer and the Company 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 company 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, Buyer shall cause proper provisions shall be made so that the successors and assigns of Buyer and the Company shall assume all of the obligations set forth in this Section 6.08. (d) The obligations under this Section 6.08 shall not be terminated or modified in such a manner as to affect adversely any indemnitee or exculpee to whom this Section 6.08 applies (a “D&O Indemnitee”) without the consent of such D&O Indemnitee. The provisions of this Section 6.08 are intended for the benefit of, and will be enforceable by (as express third-party beneficiaries), each D&O Indemnified Party current and their respective heirsformer officer, director, manager or similar functionary of the Company and his or her heirs and representatives, successors and assigns and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such D&O Indemnified Party person may have against Purchaser, the Company or their respective Affiliates first arising after the earlier of the Closing Date and the termination of this Agreement had by contract or otherwise. (e) Notwithstanding anything contained in this Section 6.08 or Section 6.04(a) to the contrary, the Parties acknowledge and agree that the D&O Indemnitees may only exercise their right of exculpation, indemnification or advancement of expenses under the Organizational Documents against the Tail Policy, and in no event shall be binding on all successors and permitted assigns of Purchaser and the Company and shall not or its successors or assigns be terminated responsible or modified in a manner as liable for providing any such exculpation, indemnification or advancement of expenses to adversely affect theany D&O Indemnitee.

Tail Insurance. Prior (a) Buyer shall reimburse the Seller and Holding Company to purchase a prepaid tail insurance policy (the Closing“Tail”) with a claims period of six (6) years after Closing with, except as set forth on Disclosure Schedule 8.05, at least the Company shall purchase an extended reporting period endorsement under same coverage and amounts and containing terms and conditions that are not less advantageous to than the Holding Company’s existing directors and officers liability insurance policy, in each case with respect to Claims arising out of or relating to events which occurred before or at Closing (including in connection with the transactions contemplated by this Agreement). The Tail shall name Xxxxx as an additional insured. (b) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ liability insurance coverage (the “D&O Tail”) claims under any policy that is or has been in existence with respect to Seller or Holding Company for the Acquired Companies’ directors and officers in a form acceptable to Purchaser, which shall provide such directors and officers with coverage for seven (7) years following the Closing and shall have a scope substantially similar to the existing coverage under, and have other terms not materially less favorable to the insured Persons than the terms of the directors’ and officers’ liability insurance coverage currently maintained by the Company. For the period commencing on the Closing Date and ending on the seventh (7th) anniversary of the Closing Date, Purchaser (including any of its Affiliates) shall cause the Company and, to the extent applicable, any of its successors and assigns, to (i) maintain the D&O Tail in full force and effect (it being understood that Purchaser and its Affiliates shall not be responsible for the payment of any additional premiums, fees or other costs thereunder after the Closing) and not to cancel, reduce or modify the terms of the D&O Tail, and (ii) continue to honor the obligations (including, without limitation, any indemnification, insurance or exculpation provisions) thereunder, and to fulfill and honor in all respects the obligations of the Company (or any of its Affiliates) to its current and former directors and officers as of immediately prior to the Closing (the “D&O Indemnified Parties”) pursuant to (A) indemnification agreements with the Company in effect on the date hereof and pursuant to the Charter Documents of the Company, in each case, in effect on the date hereof and Made Available to Purchaser and listed on Section 6.12 of the Disclosure Schedule or entered into after the date hereof with Purchaser’s consent (the “D&O Indemnification Agreements”), which D&O Indemnification Agreements shall, for the avoidance of doubt, survive the Closing and continue in full force and effect in accordance with their respective terms; or (B) any indemnification and release provisions under the Company Articles (or any Charter Document of the Company), to the extent applicable to any D&O Indemnified Party, and Purchaser agrees to cause the Acquired Companies to apply such provisions in the same manner following the Closing and at such time as such Persons are no longer directors, officers or board observers of other employees, it being understood and agreed that the Acquired Companies, with respect rights provided for in the Tail or this Section 8.05 are not prior to or in substitution for any such claims under such policies. (c) The Buyer agrees to indemnify and reimburse the Covered Parties for an amount up to the applicable Retention owed under the Tail for any Claim (i) that is brought against the Covered Parties after Closing for their actions or events arising out of matters omission in their capacity as officers and directors occurring at or prior to the Closing. This Effective Time (including in connection with the Transactions contemplated by this Agreement but excluding the Excluded D&O Claims set forth on Section 6.12 shall survive 8.05 of the ClosingDisclosure Schedule); and (ii) that is covered under the Tail. (d) Except to the limited extent provided for in Section 8.05(c), is intended to benefit and Neither the Seller, the Holding Company nor the Covered Parties shall be enforceable by each D&O Indemnified Party and their respective heirsentitled to or shall seek or be entitled to any indemnification, are in addition defense or reimbursement from the Buyer or its Affiliates with respect to Claims against, or Liabilities related to, and not actions or omissions of any Covered Party at or prior to the Effective Time (including in substitution for, any other rights to indemnification or contribution that any such D&O Indemnified Party may have against Purchaser, connection with the Company or their respective Affiliates first arising after the earlier of the Closing Date and the termination of Transactions contemplated by this Agreement by contract or otherwise, shall be binding on all successors and permitted assigns of Purchaser and the Company and shall not be terminated or modified in a manner as to adversely affect theAgreement).