|ENVISION HEALTHCARE CORP filed this Form 8-K on 08/10/2017|
7.20 Enforcement of NDAs. Following the Closing Date, the Public Company shall, at Buyers request, use commercially reasonable efforts to enforce (with Buyer responsible for any out-of-pocket-expenses or liabilities incurred in connection therewith) any confidentiality, non-solicitation or similar agreements between the Public Company and any other Person that were entered into in connection with or relating to a Competing Transaction.
(a) On or before the Closing Date, or as promptly thereafter as is practicable, Buyer shall arrange for one or more licensed insurance companies (including, at Buyers option, Affiliates of Buyer that are licensed captive insurance companies) (the Assuming Insurer) to enter into a Loss Portfolio Transfer and Assumption Reinsurance Agreement and an Assumption and Novation Agreement with Seller and its captive insurance company Affiliates (the Ceding Insurer) pursuant to which the Ceding Insurer will transfer, and the Assuming Insurer will assume (such transfer and assumption to be effective no earlier than immediately after the Closing, 100% of the liabilities and obligations under policies issued by the Ceding Insurer to the Company and its Subsidiaries. In connection with such transfer and assumption, (i) Ceding Insurer shall transfer to Assuming Insurer all rights to claim files and miscellaneous personalty that Ceding Insurer may have with respect to the policies assumed by Assuming Insurer and (ii) Ceding Insurer shall pay to Assuming Insurer, in cash or marketable securities, an amount equal to the reserves held by the Ceding Insurer as of the Closing Date with respect to the policies transferred to Assuming Insurer, the adequacy of such reserves to be verified by an independent actuarial firm mutually agreed upon by Buyer and the Public Company. If the independent actuarial firm determines that the reserves are inadequate, the Ceding Insurer shall transfer a sufficient amount additional cash or marketable securities to the Assuming Insurer to enable the independent actuarial firm to determine that the reserves are adequate. The cost of the independent actuarial firm shall be split 50-50 between Buyer and Seller.
(b) For claims against third party insurers that relate to the period prior to the Closing Date, the Public Company shall, at Buyers request and at Buyers sole expense, make a claim for coverage by or on behalf of the Company or its Subsidiaries under any third party insurance coverages maintained or arranged by the Public Company, the Company or their Affiliates (other than coverages provided by the Ceding Insurer) that provide the Company or its Subsidiaries with insurance coverage with respect to claims arising from facts, events or circumstances that occurred or were alleged to have occurred at or prior to the Closing, and the Public Company will, and will cause its Affiliates to, take no action to exclude or remove the Company or its Subsidiaries from coverage under any such insurance coverages with respect to facts, events or circumstances that occurred or were alleged to have occurred at or prior to the Closing. The Public Company shall cooperate with Buyer in and use reasonable best efforts to pursue the collection of all such insurance proceeds in respect of claims made by the Company or its Subsidiaries, at Buyers and the Companys sole expense. Any proceeds received by Seller or its Affiliates in respect of such claim shall be promptly turned over by the Public Company or such Affiliate to the Company and until such time such proceeds will be held by the Public Company or such of its Affiliates in trust for the Company. The Public Company shall promptly notify Buyer if the coverage (including with respect to pending but unpaid claims) under any of the foregoing policies is depleted, regardless of the reason for such depletion.