# Defense, Assistance and Cooperation Endorsement

**Insured:** International Business Machines Corporation  
**Policy No.:** UFP0044276-05  
**Endorsement No.:** 5  
**Effective Date:** May 21, 2016

## DEFENSE, ASSISTANCE AND COOPERATION ENDORSEMENT

It is hereby agreed that CONDITIONS, 2., Assistance and Cooperation, is deleted in its entirety and replaced as follows:

### 2. DEFENSE: ASSISTANCE AND COOPERATION

**(a)** The Company shall have no duty to assume charge of the defense or settlement of any claim or suit against the Insured; however, the Company will assume charge of the defense or settlement of a suit brought against the Insured seeking damages to which this Policy applies:

1. after all applicable limits of liability of Underlying Policy(ies) have been exhausted by actual payment of Damages; and
2. if the terms and conditions of all Underlying Policy(ies) and Quota Share Policy(ies) would have obligated all underlying insurers to assume charge of the defense or settlement of such claim or suit, but for the exhaustion of their applicable limits of liability.

**(b)** If paragraph 2.(a) above is not applicable, the Company shall have the right but not the duty to assume charge of the defense or settlement of any claim or suit against the Insured upon exhaustion of the applicable limits of liability of the Underlying Policy(ies). If the Company has exercised such right, it may withdraw from the defense and tender the defense to the Insured upon exhaustion of the applicable Limits of Liability under this Policy. If the Company does not exercise the right to assume charge of such defense or settlement, or if the applicable limits of the Underlying Policy(ies) are not exhausted, the Company shall have the right and shall be given the opportunity to associate effectively with the Insured or the underlying insurer(s) or both, in the defense and control of any claim or suit likely to involve this Policy.

**(c)** With respect to any claim or suit encompassed by (a) or (b) above, the Insured, the underlying insurer(s) and the Company shall cooperate in the defense of such claim or suit.