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. (ai) Following the ClosingWithout limiting any additional rights that any Person may have under any other agreement, Seller shall renew for a period of at least six (6) years from the Closing Date through the sixth anniversary of the Closing Date, Buyer shall indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer, director, manager or employee of the Blocker (the “D&O Indemnified Parties”) against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”) incurred in connection with any directors’ claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (a) the fact that the D&O Indemnified Party is or was an officer, director, manager, employee, fiduciary or agent of the Blocker or (b) matters existing or occurring at or prior to the Closing Date (including this Agreement and officers’ liability insurance the transactions and actions contemplated hereby), whether asserted or fiduciary liability insurance covering claimed prior to, at or after the Closing Date, to the fullest extent permitted under applicable law save and except any such Costs actually covered by a policy of directors and officers liability insurance maintained by Seller or any Affiliate of Seller. In the event of any such claim, action, suit, proceeding or investigation, (x) each D&O Indemnified Party will be entitled to advancement of expenses incurred in its defense from Buyer or the Company within ten business days of receipt by Buyer from the D&O Indemnified Party of a request therefor, provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the Delaware Corporation Law or the Blocker’s organizational documents as in effect immediately prior to the Closing, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (y) neither Buyer nor any of its Subsidiaries Affiliates, shall settle, compromise or consent to the entry of any judgment in effect on any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such D&O Indemnified Party hereunder) unless such settlement, compromise or consent includes an unconditional release of such D&O Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such D&O Indemnified Party otherwise consents and (z) Buyer, the date of this Agreement (each, an “Existing Policy”), which renewal shall provide substantially the same kind Company 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 their respective Affiliates shall cooperate with, and take all actions reasonably requested by, Acquiror, Company or in the defense of 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 Personsmatter.

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 Date, no Purchaser shall, and the Purchasers shall not permit any Company or Company Subsidiary to, amend, repeal or modify any provision in any Company’s or Company Subsidiary’s governing documents relating to the exculpation or indemnification of any current or former employee, officer, manager or director (unless required or no longer permitted by Applicable Law), it being the intent of the parties that the employees, officers, managers and directors of each Company and Company Subsidiary shall continue to be entitled to such exculpation and indemnification to the full extent of Applicable Law. On or prior to the Closing, the Purchasers shall have purchased so-called “tail” policy coverage (or the equivalent thereof) with respect to the Companies’ and Company Subsidiaries’ existing directors’ and officers’ (or equivalent) liability insurance or fiduciary liability insurance covering policies with a fresh, unimpaired aggregate limit of liability, and containing terms and conditions that are no less favorable to the directors and officers (or equivalent) of the Companies and 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 directorsas applicable, officers or employees in order to permit such Persons to make as the Companies’ and pursue any claims of such Persons under Seller’s insurance policies, to the extent such policies cover Company Subsidiaries’ existing directors’ and officers’ (or equivalent) liability insurance or fiduciary liability insurancepolicies, and Seller from insurance carriers with at least comparable claims paying ability ratings, all in form and substance reasonably satisfactory to the Sellers (the “Tail Policies”). Until the sixth anniversary of the Effective Time, the Purchasers shall cause the Companies and the Company Subsidiaries (a) not to amend or otherwise modify the coverage under the Tail Policies or take any action that would result in the cancellation, termination, amendment or modification of any Tail Policy and (b) to withhold coverage continue to honor their respective obligations under the Tail Policies. If any Company or Company Subsidiary is acquired during such Period, the Company or Company Subsidiary will require in any agreement relating to its being acquired that the acquirer shall maintain in effect the insurance required by this Section. The provisions of this Section 6.3 are intended for the benefit of, and will be enforceable by, each current and former employee, officer, manager and director of each Company and its Company Subsidiaries 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 Personsperson may have had by Contract or otherwise. At or prior to the Closing, the Purchasers shall deliver copies of the Tail Policies to the Sellers.

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. (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 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.