Common use of Indemnification of Officers and Directors of the Company Clause in Contracts

Indemnification of Officers and Directors of the Company. (a) From and after the Closing, the Parent shall, and shall cause the Surviving Company and each of their respective Subsidiaries to, to the fullest extent permitted by applicable Law, indemnify, defend and hold harmless, and provide advancement of expenses to, each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing, an officer, manager, director or employee of a Group Company (each, a “D&O Indemnified Party”), against all Losses, claims, damages, costs, expenses, Liabilities or judgments or amounts that are paid in settlement of or in connection with any claim, Action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that such Person is or was an officer, manager, director or employee of a Group Company, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Closing, whether asserted or claimed prior to, or at or after, the Closing (including matters, acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby) to the same extent that such Persons are indemnified or have the right to advancement of expenses as of the date hereof by the Group Companies pursuant to their respective organizational documents and indemnification agreements of the Company, if any, in existence on the date hereof with any D&O Indemnified Party. (b) For a period of six (6) years after the Closing and at all times subject to applicable Law, (i) the Parent shall not (and shall not cause or permit any Group Company or any of the Parent’s other Subsidiaries or Affiliates to) amend or modify in any way adverse to the D&O Indemnified Parties, or to the beneficiaries thereof, the exculpation and indemnification provisions set forth in the organizational documents of the Group Companies and (ii) the Parent shall cause to be maintained in effect, (at 50% the Parent’s expense and 50% the Company’s expense (as a Transaction Expense)), the current policies of directors’ and officers’ liability insurance maintained by or on behalf of the Company as of the date hereof (the “Current Policies”) (provided, that the Parent may substitute such policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to claims arising from facts or events that occurred at or prior to the Closing; provided, however, that the Parent shall not be obligated to make annual premium payments for such insurance to the extent that such total premiums exceed three hundred percent (300%) of the premiums paid as of the date hereof by or on behalf of the Company for the Current Policies (the “Premium Amount”), and if such total premiums for such insurance would at any time exceed the Premium Amount, then the Parent shall cause to be maintained policies of insurance that provide the maximum coverage available at an annual premium equal to the Premium Amount. Notwithstanding the foregoing, prior to the Closing and in satisfaction of the Parent’s foregoing obligations under this Section 6.03, the Company shall purchase ((at 50% the Parent’s expense and 50% the Company’s expense (as a Transaction Expense)) a six (6) year “tail” prepaid directors’ and officers’ liability insurance policy (the “D&O Tail”) in a form reasonably acceptable to the Parent and the Company and, if so requested by the Parent, from an insurance carrier that is a Subsidiary of the Parent reasonably acceptable to the Company, effective as of the Closing, providing, for a period of six (6) years after the Closing, the coverage and amounts, and terms and conditions, contemplated by the foregoing sentence of this Section 6.03(b); provided, that the Company shall not pay an aggregate amount for such D&O Tail in excess of the Premium Amount unless such excess amount is paid on behalf of the Company. From and after the Closing, the Parent shall (and/or shall cause the Group Companies or its other subsidiaries or Affiliates, as applicable, to) continue to honor its obligations under any such insurance procured pursuant to this Section 6.03(b), shall pay any deductibles or self-insured retentions thereunder and shall not cancel (or permit to be canceled) or take (or cause to be taken) any action or omission that would reasonably be expected to result in the cancellation thereof. (c) The Parent agrees to pay, or to cause the Surviving Company or any of its Subsidiaries to pay, all expenses, including attorneys’ fees, that may be incurred by the D&O Indemnified Parties in enforcing the indemnity and other obligations provided for in this Section 6.03. (d) If the Parent, the Surviving Company or any of their respective successors or assigns proposes to (i) consolidate with or merge into any other Person and the Parent or the Surviving Company shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each case, proper provision shall be made prior to or concurrently with the consummation of such transaction so that the successors and assigns of the Parent or the Surviving Company, as the case may be, shall, from and after the consummation of such transaction, honor the indemnification and other obligations set forth in this Section 6.03. (e) With respect to any indemnification obligations of the Parent and/or the Company pursuant to this Section 6.03, Parent hereby acknowledges and agrees (i) that it and the Company shall be the indemnitors of first resort with respect to all indemnification obligations of Parent and/or the Company pursuant to this Section 6.03 (i.e., their obligations to an applicable D&O Indemnified Party are primary and any obligation of any other Person to advance expenses or to provide indemnification and/or insurance for the same expenses or Liabilities incurred by such D&O Indemnified Party are secondary) and (ii) that it irrevocably waives, relinquishes and releases any such other Person from any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof. (f) Parent or the Surviving Company will have the right, but not the obligation, to assume and control the defense of any third party claim or proceeding relating to any acts or omissions covered under this Section 6.03 (each, a “D&O Claim”), provided that none of Parent or the Surviving Company will settle, compromise or consent to the entry of any judgment in any such D&O Claim for which indemnification has been sought by a D&O Indemnified Party hereunder, unless either (i) such settlement, compromise or consent includes an unconditional release of such D&O Indemnified Party from all Liability arising out of, and no admission of wrongdoing in respect of, such D&O Claim or (ii) such D&O Indemnified Party otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the D&O Indemnified Parties shall cooperate in the defense of any D&O Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. (g) The provisions of this Section 6.03 shall survive the consummation of the Merger and the Effective Time and (i) are intended to be for the benefit of, and shall be enforceable by, each D&O Indemnified Party, and his or her successors, heirs and representatives and shall be binding on all successors and assigns of the Parent and the Surviving Company and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by Contract or otherwise.

Indemnification of Officers and Directors of the Company. (a) From and For six years after the ClosingEffective Time, the Parent shallSurviving Corporation will fulfill and honor in all respects the obligations of the Company, in any case as in effect on the Agreement Date and shall cause the Surviving subject to any limitations of applicable Law or set forth in any Company and each of their respective Subsidiaries toIndemnification Provisions, pursuant to the fullest extent permitted by applicable Law, indemnify, defend indemnification provisions of the Company Organizational Documents and hold harmless, and provide advancement of expenses to, each Person who is now, or has been at pursuant to any time indemnification agreements delivered to Merger Sub prior to the date hereof or who becomes prior to Effective Time, if any (collectively, the Closing, an officer, manager, director or employee “Company Indemnification Provisions”) among the Company and the current and former directors and officers of a Group the Company (each, a the “D&O Indemnified PartyParties”), against all Losses, claims, damages, costs, expenses, Liabilities or judgments or amounts that are paid in settlement of or in connection with any claim, Action, suit, proceeding or investigation based in whole or in part on or respect to claims arising in whole or in part out of the fact that such Person is or was an officer, manager, director or employee of a Group Company, and pertaining to any matter matters existing or occurring, or any acts or omissions occurring, occurring at or prior to the Closing, whether Effective Time which are asserted after the Effective Time. Any claims for indemnification made under this Section 5.6 on or claimed prior to, or at or after, to the Closing (including matters, acts or omissions occurring in connection with the approval of this Agreement and the consummation sixth anniversary of the transactions contemplated hereby) to Effective Time shall survive such anniversary until the same extent that such Persons are indemnified or have the right to advancement of expenses as of the date hereof by the Group Companies pursuant to their respective organizational documents and indemnification agreements of the Company, if any, in existence on the date hereof with any D&O Indemnified Partyresolution thereof. (b) For In connection with the Closing, the Company shall, at its own expense, purchase a period of six (6) years after the Closing year directors’ and at all times subject to applicable Lawofficers’ “tail” insurance policy, (i) the Parent shall not (and shall not cause or permit any Group Company or any of the Parent’s other Subsidiaries or Affiliates to) amend or modify in any way adverse to the D&O Indemnified Parties, or to the beneficiaries thereof, the exculpation and indemnification provisions set forth in the organizational documents coverage and amounts, and on the terms and conditions, of the Group Companies and (ii) the Parent shall cause to be maintained in effect, (at 50% the Parent’s expense and 50% the Company’s expense (as a Transaction Expense)), the current policies of directors’ and officers’ liability (and fiduciary) insurance maintained by or on behalf of the Company as of the date hereof (the “Current Policies”) (provided, that the Parent may substitute such policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to claims arising from facts or events that occurred at or prior to the Closing; provided, however, that the Parent shall not be obligated to make annual premium payments for such insurance to the extent that such total premiums exceed three hundred percent (300%) of the premiums paid as of the date hereof by or on behalf of the Company for the Current Policies (the “Premium Amount”), and if such total premiums for such insurance would at any time exceed the Premium Amount, then the Parent shall cause to be maintained policies of insurance that provide the maximum coverage available at an annual premium equal to the Premium Amount. Notwithstanding the foregoing, prior to the Closing and in satisfaction of the Parent’s foregoing obligations under this Section 6.03, the Company shall purchase ((at 50% the Parent’s expense and 50% the Company’s expense (as a Transaction Expense)) a six (6) year “tail” prepaid directors’ and officers’ liability insurance policy Agreement Date (the “D&O Tail”) in a form reasonably acceptable ), that provides coverage for acts or omissions of the D&O Indemnified Parties occurring at or prior to the Parent and Effective Time. The premium for the Company and, if so requested by the Parent, from an insurance carrier that is a Subsidiary of the Parent reasonably acceptable to the Company, effective as of D&O Tail shall be paid at the Closing, providing, for a period of six (6) years after the Closing, the coverage and amounts, and terms and conditions, contemplated by the foregoing sentence of this Section 6.03(b); provided, that the Company shall not pay an aggregate amount for such D&O Tail in excess of the Premium Amount unless such excess amount is paid on behalf of the Company. From and after the Closing, the Parent Surviving Corporation shall (and/or and shall cause the Group Companies or its other subsidiaries or Affiliates, as applicable, Subsidiaries to) continue to honor its obligations under any such insurance procured pursuant to this Section 6.03(b), shall pay any deductibles or self-insured retentions thereunder and shall not cancel (or permit to be canceledcancelled) or take (or cause to be taken) any action or omission that would reasonably be expected to result in the cancellation thereofof the D&O Tail. (c) The Parent agrees to pay, or to cause If the Surviving Company or any of its Subsidiaries to pay, all expenses, including attorneys’ fees, that may be incurred by the D&O Indemnified Parties in enforcing the indemnity and other obligations provided for in this Section 6.03. (d) If the Parent, the Surviving Company Corporation or any of their respective successors or assigns proposes to (i) consolidate with or merge into any other Person and the Parent or the Surviving Company Corporation shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each case, proper provision shall be made prior to or concurrently with the consummation of such transaction so that the successors and assigns of the Parent or the Surviving CompanyCorporation, as the case may be, shall, from and after the consummation of such transaction, honor the indemnification and other obligations set forth in this Section 6.035.6. (e) With respect to any indemnification obligations of the Parent and/or the Company pursuant to this Section 6.03, Parent hereby acknowledges and agrees (i) that it and the Company shall be the indemnitors of first resort with respect to all indemnification obligations of Parent and/or the Company pursuant to this Section 6.03 (i.e., their obligations to an applicable D&O Indemnified Party are primary and any obligation of any other Person to advance expenses or to provide indemnification and/or insurance for the same expenses or Liabilities incurred by such D&O Indemnified Party are secondary) and (ii) that it irrevocably waives, relinquishes and releases any such other Person from any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof. (f) Parent or the Surviving Company will have the right, but not the obligation, to assume and control the defense of any third party claim or proceeding relating to any acts or omissions covered under this Section 6.03 (each, a “D&O Claim”), provided that none of Parent or the Surviving Company will settle, compromise or consent to the entry of any judgment in any such D&O Claim for which indemnification has been sought by a D&O Indemnified Party hereunder, unless either (i) such settlement, compromise or consent includes an unconditional release of such D&O Indemnified Party from all Liability arising out of, and no admission of wrongdoing in respect of, such D&O Claim or (ii) such D&O Indemnified Party otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the D&O Indemnified Parties shall cooperate in the defense of any D&O Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. (gd) The provisions of this Section 6.03 5.6 shall survive the consummation of the Merger and the Effective Time and (i) are intended to be for the benefit of, and shall be enforceable by, each D&O Indemnified Party, and his or her successors, heirs and representatives and shall be binding on all successors and assigns of the Parent and the Surviving Company Corporation and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by Contract or otherwise.

Indemnification of Officers and Directors of the Company. (aParent agrees that all rights to indemnification, expense advancement and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company pursuant to the indemnification agreements or arrangements of the Company listed in Part 2.10(a)(vii) of the Company Disclosure Schedule shall survive the Merger and shall continue in full force and effect in accordance with their terms. The Surviving Corporation shall cooperate in the defense of any such matter. From and after the ClosingEffective Time, the Parent shall, and shall cause the Surviving Company Corporation to indemnify, defend and each of their respective Subsidiaries tohold harmless, to the fullest extent permitted by the DGCL and other applicable Lawlaws, the present and former officers and directors of the Company in their capacities as such against all losses, expenses, claims, damages or liabilities arising out of actions or omissions occurring on or prior to the Effective Time (including, without limitation, actions or omissions relating to the transactions contemplated hereby). Notwithstanding this Section 9.11, neither the Parent nor the Surviving Corporation is liable to indemnify, defend and hold harmless, the present and provide advancement former officers and directors of expenses tothe Company in their capacities as such against any losses, each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing, an officer, manager, director or employee of a Group Company (each, a “D&O Indemnified Party”), against all Lossesexpenses, claims, damages, costs, expenses, Liabilities damages or judgments or amounts that are paid in settlement of or in connection with any claim, Action, suit, proceeding or investigation based in whole or in part on or liabilities arising in whole or in part out of the fact that such Person is or was an officer, manager, director or employee of a Group Company, and pertaining to any matter existing or occurring, or any acts actions or omissions occurringarising from this Merger Agreement (including, at or prior to the Closingwithout limitation, whether asserted or claimed prior to, or at or after, the Closing (including matters, acts actions or omissions occurring in connection with the relating to board of director’s approval of this Agreement and the consummation of the transactions contemplated hereby) to ). In the same extent that such Persons are indemnified or have the right to advancement of expenses as of the date hereof by the Group Companies pursuant to their respective organizational documents and indemnification agreements of the Company, if any, in existence on the date hereof with any D&O Indemnified Party. (b) For a period of six (6) years after the Closing and at all times subject to applicable Law, (i) the Parent shall not (and shall not cause or permit any Group Company or any of the Parent’s other Subsidiaries or Affiliates to) amend or modify in any way adverse to the D&O Indemnified Parties, or to the beneficiaries thereof, the exculpation and indemnification provisions set forth in the organizational documents of the Group Companies and (ii) the Parent shall cause to be maintained in effect, (at 50% the Parent’s expense and 50% the Company’s expense (as a Transaction Expense)), the current policies of directors’ and officers’ liability insurance maintained by or on behalf of the Company as of the date hereof (the “Current Policies”) (provided, event that the Parent may substitute such policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to claims arising from facts or events that occurred at or prior to the Closing; provided, however, that the Parent shall not be obligated to make annual premium payments for such insurance to the extent that such total premiums exceed three hundred percent (300%) of the premiums paid as of the date hereof by or on behalf of the Company for the Current Policies (the “Premium Amount”), and if such total premiums for such insurance would at any time exceed the Premium Amount, then the Parent shall cause to be maintained policies of insurance that provide the maximum coverage available at an annual premium equal to the Premium Amount. Notwithstanding the foregoing, prior to the Closing and in satisfaction of the Parent’s foregoing obligations under this Section 6.03, the Company shall purchase ((at 50% the Parent’s expense and 50% the Company’s expense (as a Transaction Expense)) a six (6) year “tail” prepaid directors’ and officers’ liability insurance policy (the “D&O Tail”) in a form reasonably acceptable to the Parent and the Company and, if so requested by the Parent, from an insurance carrier that is a Subsidiary of the Parent reasonably acceptable to the Company, effective as of the Closing, providing, for a period of six (6) years after the Closing, the coverage and amounts, and terms and conditions, contemplated by the foregoing sentence of this Section 6.03(b); provided, that the Company shall not pay an aggregate amount for such D&O Tail in excess of the Premium Amount unless such excess amount is paid on behalf of the Company. From and after the Closing, the Parent shall (and/or shall cause the Group Companies or its other subsidiaries or Affiliates, as applicable, to) continue to honor its obligations under any such insurance procured pursuant to this Section 6.03(b), shall pay any deductibles or self-insured retentions thereunder and shall not cancel (or permit to be canceled) or take (or cause to be taken) any action or omission that would reasonably be expected to result in the cancellation thereof. (c) The Parent agrees to pay, or to cause the Surviving Company Corporation or any of its Subsidiaries to pay, all expenses, including attorneys’ fees, that may be incurred by the D&O Indemnified Parties in enforcing the indemnity and other obligations provided for in this Section 6.03. (d) If the Parent, the Surviving Company or any of their respective successors or assigns proposes to (i) consolidate consolidates with or merge merges into any other Person and the Parent or the Surviving Company shall is not be the continuing or surviving corporation or entity in of such consolidation or merger or (ii) transfer transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall will be made prior to or concurrently with the consummation of such transaction so that the successors and assigns of the Parent or Surviving Corporation will assume the Surviving Company, as the case may be, shall, from and after the consummation of such transaction, honor the indemnification and other obligations thereof set forth in this Section 6.03. (e) With respect to any indemnification obligations of the Parent and/or the Company pursuant to this Section 6.03, Parent hereby acknowledges and agrees (i) that it and the Company shall be the indemnitors of first resort with respect to all indemnification obligations of Parent and/or the Company pursuant to this Section 6.03 (i.e., their obligations to an applicable D&O Indemnified Party are primary and any obligation of any other Person to advance expenses or to provide indemnification and/or insurance for the same expenses or Liabilities incurred by such D&O Indemnified Party are secondary) and (ii) that it irrevocably waives, relinquishes and releases any such other Person from any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof. (f) Parent or the Surviving Company will have the right, but not the obligation, to assume and control the defense of any third party claim or proceeding relating to any acts or omissions covered under this Section 6.03 (each, a “D&O Claim”), provided that none of Parent or the Surviving Company will settle, compromise or consent to the entry of any judgment in any such D&O Claim for which indemnification has been sought by a D&O Indemnified Party hereunder, unless either (i) such settlement, compromise or consent includes an unconditional release of such D&O Indemnified Party from all Liability arising out of, and no admission of wrongdoing in respect of, such D&O Claim or (ii) such D&O Indemnified Party otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the D&O Indemnified Parties shall cooperate in the defense of any D&O Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. (g) 9.11 The provisions of this Section 6.03 shall survive the consummation of the Merger and the Effective Time and (i) 9.11 are intended to be for the benefit of, and shall will be enforceable by, each D&O Indemnified Partyindemnified party, his or her heirs and his or her successors, heirs and representatives and shall be binding on all successors and assigns of the Parent and the Surviving Company and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by Contract contract or otherwise. Parent shall cause the Surviving Corporation or any successor thereto to comply with its obligations under this Section 9.11.

Indemnification of Officers and Directors of the Company. (a) From and after If the ClosingClosing occurs, the Parent shall, and shall cause the Surviving Company all rights to indemnification and each of their respective Subsidiaries to, to the fullest extent permitted by applicable Law, indemnify, defend and hold harmless, and provide advancement of expenses toand all limitations on liability existing in favor of any employee, each Person who is nowofficer or director of any of the Group Companies (collectively, or has been at any time prior to the date hereof or who becomes prior to the Closing, an officer, manager, director or employee of a Group “Company (each, a “D&O Indemnified PartyIndemnitees”), against all Losses, claims, damages, costs, expenses, Liabilities or judgments or amounts that are paid as provided in settlement of or in connection with any claim, Action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out the Organizational Documents of the fact that such Person is or was an officer, manager, director or employee of a applicable Group Company, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Closing, whether asserted or claimed prior to, or at or after, the Closing (including matters, acts or omissions occurring in connection with the approval of this Agreement and survive the consummation of the transactions contemplated hereby) to hereby and continue in full force and effect and be honored by the same extent that such Persons are indemnified or have Surviving Company and Parent after the right to Closing. After the Effective Time, Parent and the Surviving Company shall maintain in effect the exculpation, indemnification and advancement of expenses as provisions of the date hereof by the Group Companies pursuant to their respective organizational documents and indemnification agreements of the Company, if any, in existence on the date hereof with any D&O Indemnified Party. (b) For a period of six (6) years after the Closing and at all times subject to applicable Law, (i) the Parent shall not Surviving Company’s certificate of incorporation as in effect immediately after the Effective Time (and shall not cause or permit any Group Company or any the form of the Parent’s other Subsidiaries or Affiliates to) amend or modify in any way adverse to the D&O Indemnified Partieswhich is attached hereto as Exhibit B), or to the beneficiaries thereof, the exculpation and indemnification provisions set forth in the organizational documents of the Group Companies and (ii) the Parent shall cause to be maintained Surviving Company’s by-laws as in effecteffect immediately after the Effective Time (the form of which is attached hereto as Exhibit C), (at 50% the Parent’s expense and 50% the Company’s expense (as a Transaction Expense))iii) any certificate of incorporation, the current policies by-laws or similar organizational documents of directors’ and officers’ liability insurance maintained by or on behalf of the each other Group Company as of the date hereof (the “Current Policies”) (provided, that the Parent may substitute such policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to claims arising from facts or events that occurred at or in effect immediately prior to the Closing; providedEffective Time and (iv) any indemnification agreements of any Group Company with any of their respective directors, howeverofficers or employees as in effect immediately prior to the Effective Time, and in each case of clauses (i), (ii), (iii) and (iv) shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individuals who at the Effective Time were current or former directors, officers or employees of any Group Company. The obligations of Parent and the Surviving Company under this Section 9.01 shall not be obligated terminated or modified in such a manner as to make annual premium payments for adversely affect any Company Indemnitee to whom this Section 9.01 applies without the consent of such insurance to the extent affected Company Indemnitee (it being expressly agreed that such total premiums exceed three hundred percent (300%) of the premiums paid as of the date hereof by or on behalf of the Company for the Current Policies (the “Premium Amount”), and if such total premiums for such insurance would at any time exceed the Premium Amount, then the Parent shall cause Indemnitees to be maintained policies of insurance that provide the maximum coverage available at an annual premium equal to the Premium Amount. Notwithstanding the foregoing, prior to the Closing and in satisfaction of the Parent’s foregoing obligations under whom this Section 6.03, the Company 9.01 applies shall purchase ((at 50% the Parent’s expense and 50% the Company’s expense (as a Transaction Expense)) a six (6) year “tail” prepaid directors’ and officers’ liability insurance policy (the “D&O Tail”) in a form reasonably acceptable to the Parent and the Company and, if so requested by the Parent, from an insurance carrier that is a Subsidiary of the Parent reasonably acceptable to the Company, effective as of the Closing, providing, for a period of six (6) years after the Closing, the coverage and amounts, and terms and conditions, contemplated by the foregoing sentence be intended third party beneficiaries of this Section 6.03(b9.01); provided. If the Closing occurs, that the Company shall not pay an aggregate amount for such D&O Tail in excess of the Premium Amount unless such excess amount is paid on behalf of the Company. From and after the Closing, the Parent shall (and/or shall cause the Group Companies or its other subsidiaries or Affiliates, as applicable, to) continue to honor its obligations under any such insurance procured pursuant to this Section 6.03(b), shall pay any deductibles or self-insured retentions thereunder and shall not cancel (or permit to be canceled) or take (or cause to be taken) any action or omission that would reasonably be expected to result in the cancellation thereof. (c) The Parent agrees to pay, or to cause the Surviving Company or to pay all expenses to any of its Subsidiaries to pay, all expenses, including attorneys’ fees, that may be Company Indemnitee incurred by the D&O Indemnified Parties in successfully enforcing the indemnity and or other obligations provided for in this Section 6.039.01. (d) If the Parent, the Surviving Company or any of their respective successors or assigns proposes to (i) consolidate with or merge into any other Person and the Parent or the Surviving Company shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each case, proper provision shall be made prior to or concurrently with the consummation of such transaction so that the successors and assigns of the Parent or the Surviving Company, as the case may be, shall, from and after the consummation of such transaction, honor the indemnification and other obligations set forth in this Section 6.03. (e) With respect to any indemnification obligations of the Parent and/or the Company pursuant to this Section 6.03, Parent hereby acknowledges and agrees (i) that it and the Company shall be the indemnitors of first resort with respect to all indemnification obligations of Parent and/or the Company pursuant to this Section 6.03 (i.e., their obligations to an applicable D&O Indemnified Party are primary and any obligation of any other Person to advance expenses or to provide indemnification and/or insurance for the same expenses or Liabilities incurred by such D&O Indemnified Party are secondary) and (ii) that it irrevocably waives, relinquishes and releases any such other Person from any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof. (f) Parent or the Surviving Company will have the right, but not the obligation, to assume and control the defense of any third party claim or proceeding relating to any acts or omissions covered under this Section 6.03 (each, a “D&O Claim”), provided that none of Parent or the Surviving Company will settle, compromise or consent to the entry of any judgment in any such D&O Claim for which indemnification has been sought by a D&O Indemnified Party hereunder, unless either (i) such settlement, compromise or consent includes an unconditional release of such D&O Indemnified Party from all Liability arising out of, and no admission of wrongdoing in respect of, such D&O Claim or (ii) such D&O Indemnified Party otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the D&O Indemnified Parties shall cooperate in the defense of any D&O Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. (g) The provisions of this Section 6.03 shall survive the consummation of the Merger and the Effective Time and (i) are intended to be for the benefit of, and shall be enforceable by, each D&O Indemnified Party, and his or her successors, heirs and representatives and shall be binding on all successors and assigns of the Parent and the Surviving Company and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by Contract or otherwise.