Common use of Indemnification; Officers' and Directors' Insurance Clause in Contracts

Indemnification; Officers' and Directors' Insurance. (a) From and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless each person who is now, or who becomes prior to the Effective Time, an officer or director of the Company (the "Indemnified Parties") against all losses, expenses, claims, damages, liabilities, costs, expenses, judgments or amounts that are paid in settlement with the approval of the indemnifying party (which approval will not be unreasonably withheld) arising out of any action or omission of such Indemnified Party in his or her capacity as an officer or director of the Company in connection with the transactions contemplated by this Agreement to the fullest extent provided for under the Company's Certificate of Incorporation and By Laws as in effect as of the date hereof or permitted or required by applicable law, including without limitation the advancement of expenses. Parent agrees that all rights to indemnification existing in favor of the Indemnified Parties as provided in the Company's Certificate of Incorporation or By-Laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time, and Parent hereby guarantees the due and prompt performance in full of such indemnification obligations of the Surviving Corporation. Parent agrees to use its best efforts to cause the Surviving Corporation to maintain in effect for not less than three years after the Effective Time the current policies of directors' and officers' liability insurance maintained by the Company with respect to matters occurring prior to the Effective Time; PROVIDED, HOWEVER, that (i) the Surviving Corporation may substitute therefor policies of at least the same coverage (with carriers comparable to the Company's existing carriers) containing terms and conditions which are no less advantageous to the Indemnified Parties and (ii) the Surviving Corporation shall not be required to pay a premium at a rate for such insurance in excess of 200% of the annual premium rate represented by the last premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount and (iii) any or all of the Indemnified Parties shall have the right to provide funds to the Surviving Corporation to fund premiums to the extent they exceed such 200% level. (b) The provisions of this Section 4.13 are intended for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and personal representatives.

Indemnification; Officers' and Directors' Insurance. (a) From The Company may purchase a six (6) year extended reporting period endorsement ("reporting tail coverage") with respect to the Company's directors and after officers liability insurance currently in effect, and maintain such endorsement in full force and effect for its full term, provided that neither Parent nor the Surviving Company shall be required to pay more than $40,000 for such reporting tail coverage. (b) Parent and the Surviving Company shall, until the sixth (6th) anniversary of the Effective Time, the Surviving Corporation shall indemnifyjointly and severally, defend indemnify and hold harmless harmless, with respect to claims or events existing or occurring at or prior to the Effective Time, each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director or officer of the Company (the "Company Indemnified Parties"), against all Losses arising out of or by reason of the fact that the Company Indemnified Party is or was an officer or director of the Company (whether asserted or claimed prior to, at or after the "Indemnified Parties") against all lossesEffective Time, expenses, claims, damages, liabilities, costs, expenses, judgments or amounts that are paid in settlement with the approval of the indemnifying party (which approval will not be unreasonably withheld) arising out of any action or omission of such Indemnified Party in his or her capacity as an officer or director of the Company in connection with the transactions contemplated by this Agreement to the fullest extent provided for that the Company would have been permitted under the Company's Certificate of Incorporation and By Laws Company Operating Agreement as in effect as on the date of this Agreement. (c) The Certificate of Formation and Operating Agreement of the date hereof or permitted or required by applicable lawSurviving Company shall contain, including without limitation and Parent shall cause the advancement Certificate of expenses. Parent agrees that all rights to indemnification existing in favor Formation and Operating Agreement of the Indemnified Parties as provided in the Company's Certificate of Incorporation or By-LawsSurviving Company to so contain, as in effect as of the date hereof, provisions no less favorable with respect to matters occurring through the Effective Timeindemnification, shall survive the Merger advancement of expenses and shall continue in full force exculpation of present and effect for a period of not less than six years from the Effective Time, former directors and Parent hereby guarantees the due and prompt performance in full of such indemnification obligations officers of the Surviving Corporation. Parent agrees to use its best efforts to cause Company than are presently set forth in the Surviving Corporation to maintain in effect for not less than three years after the Effective Time the current policies Certificate of directors' Formation and officers' liability insurance maintained by the Company with respect to matters occurring prior to the Effective Time; PROVIDED, HOWEVER, that (i) the Surviving Corporation may substitute therefor policies Operating Agreement of at least the same coverage (with carriers comparable to the Company's existing carriers) containing terms and conditions which are no less advantageous to the Indemnified Parties and (ii) the Surviving Corporation shall not be required to pay a premium at a rate for such insurance in excess of 200% of the annual premium rate represented by the last premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount and (iii) any or all of the Indemnified Parties shall have the right to provide funds to the Surviving Corporation to fund premiums to the extent they exceed such 200% level. (bd) Parent shall pay all expenses, including reasonable attorneys' fees, that may be incurred by the persons referred to in this Section 7.2 in connection with their enforcement of their rights provided in this Section 7.2. (e) The provisions of this Section 4.13 7.2 are intended to be in addition to the rights otherwise available to the current officers and directors of the Company by Law, charter document or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the Company Indemnified Party and his or her Parties, their heirs and personal their representatives.

Indemnification; Officers' and Directors' Insurance. (a) From All rights to indemnification or exculpation now existing in favor of the past and after the Effective Timepresent directors, the Surviving Corporation shall indemnifyofficers, defend employees and hold harmless each person who is now, or who becomes prior to the Effective Time, an officer or director agents of the Company (the "Indemnified Parties") against all losses, expenses, claims, damages, liabilities, costs, expenses, judgments and its Subsidiaries as provided in their respective charters or amounts that are paid in settlement with the approval of the indemnifying party (which approval will not be unreasonably withheld) arising out of any action by-laws or omission of such Indemnified Party in his or her capacity as an officer or director of the Company in connection with the transactions contemplated by this Agreement to the fullest extent provided for under the Company's Certificate of Incorporation and By Laws as otherwise in effect as of the date hereof or permitted or required by applicable law, including without limitation the advancement of expenses. Parent agrees that all rights to indemnification existing in favor of the Indemnified Parties as provided in the Company's Certificate of Incorporation or By-Laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time, and Parent hereby guarantees the due and prompt performance in full of such indemnification obligations of the Surviving Corporation. Parent agrees to use its best efforts to cause the Surviving Corporation to maintain in effect for not less than three years after the Effective Time the current policies of directors' and officers' liability insurance maintained by the Company Closing Date with respect to matters occurring prior to the Effective Time; PROVIDEDClosing Date shall survive the transactions contemplated hereby and shall continue in full force and effect. To the maximum extent permitted by the DGCL, HOWEVERsuch indemnification shall be mandatory rather than permissive and the Company shall advance expenses in connection with such indemnification. The Certificate of Incorporation of the Company shall contain provisions which are substantially similar to the provisions with respect to indemnification and exculpation set forth in Article SEVENTH of the Company's Restated Certificate of Incorporation as in effect on the date hereof, and the Company's by-laws shall contain provisions which are substantially similar to the provisions with respect to indemnification and insurance set forth in Article XI of the Company's by-laws as in effect on the date hereof, which provisions shall not, until the sixth anniversary of the date hereof in either case be amended in any manner that would materially and adversely affect the rights of the Company's past and present employees, agents, directors or officers thereunder for acts or omissions on or prior to the Closing Date, except if any such amendment is required by Applicable Law. Any determination required to be made with respect to whether a party's conduct complies with the standards set forth in the Certificate of Incorporation or by-laws of the Company or under the DGCL shall be made by independent counsel selected by the Company and reasonably acceptable to the indemnified party (iwhose fees and expenses shall be paid by the Company). (b) The Company shall maintain in effect for not less than six years from the Surviving Corporation Closing Date the policies of officers' and directors' liability insurance most recently maintained by the Company (provided that the Purchaser may substitute therefor policies of at least the same coverage (with carriers comparable to the Company's existing carriers) containing terms and conditions which are no not materially less advantageous so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Indemnified Parties Closing Date, in each case, however, to the extent available at a reasonable cost (such cost not to exceed 300% of the premiums currently paid by the Company); provided, however; that if the Company is not able to obtain the insurance specified herein, the Company will obtain as much comparable insurance as is then-available at a reasonable cost (such cost not to exceed 300% of the premiums currently paid by the Company). The Company will pay all reasonable, direct, out-of-pocket expenses (including reasonable attorney's fees and expense) that may be incurred by any indemnified party in enforcing the indemnity and other obligations provided for in this Section 4.1. (c) If the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation thereof, or (ii) sells, leases, transfers or otherwise disposes of all or substantially all of its properties and assets to any Person, whether in a single transaction or a series of related transactions, then and in each such case, proper provision shall be made so that the Surviving Corporation shall not be required to pay a premium at a rate for such insurance in excess of 200% applicable successor or assign of the annual premium rate represented by Company will assume the last premium paid prior to the date hereof, but Company's obligations set forth in such case shall purchase as much coverage as possible for such amount and (iii) any or all of the Indemnified Parties shall have the right to provide funds to the Surviving Corporation to fund premiums to the extent they exceed such 200% level. (b) The provisions of this Section 4.13 are intended for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and personal representatives4.1.

Indemnification; Officers' and Directors' Insurance. (a) From and after the Effective TimeClosing, Parent shall, and shall cause the Surviving Corporation shall indemnifyto, defend (i) indemnify and hold harmless each person who is now, or who becomes prior to the Effective Time, an former director and officer or director of the Company (the "Company Indemnified Parties") ), against any and --------------------------- all demands, claims, complaints, actions, or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, expenses, claimsfees, damages, liabilities, costs, expenses, judgments or amounts that are paid in settlement with the approval of the indemnifying party obligations (which approval will not be unreasonably withheld) including those arising out of any action such as a settlement or omission of such Indemnified Party in his compromise thereof or her capacity as an officer judgement or director award therein) and any out-of- pocket costs and expenses, including, without limitation, reasonable attorneys' fees and disbursements incurred or suffered by any of the Company Indemnified Parties in connection with any Liabilities or any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the transactions contemplated by this Agreement Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent provided for that the Company would have been permitted under the Company's Certificate Company Articles of Incorporation and By Laws Company Bylaws, in each case as in effect as of the date hereof or permitted or required by applicable law, including without limitation the advancement of expenses. Parent agrees that all rights to indemnification existing in favor of the Indemnified Parties as provided in the Company's Certificate of Incorporation or By-Laws, as in effect as of on the date hereof, to indemnify such Company Indemnified Parties, and (ii) advance reasonable expenses as incurred by any Company Indemnified Party in connection with respect any matters for which such Company Indemnified Party is entitled to matters occurring through indemnification from Parent and the Effective Time, shall survive Surviving Corporation pursuant to this Section 6.9(a) to the Merger -------------- fullest extent permitted under the Company Articles of Incorporation and shall continue in full force and effect for Company Bylaws. (b) For a period of not less than six (6) years from following the Effective TimeClosing, and Parent hereby guarantees the due and prompt performance in full of such indemnification obligations of the Surviving Corporation. Parent agrees to use its best efforts to shall maintain, or shall cause the Surviving Corporation to maintain (to the extent available in the market), in effect a directors' and officers' liability insurance policy covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (copies of which have been heretofore delivered by the Company to Parent and its agents and representatives) with coverage in amount and scope at least as favorable as the Company's existing coverage; provided, however, that in no event shall Parent be obligated to expend in any one year, in order to maintain or provide insurance coverage pursuant to this Section 6.9(b) any amount in excess of 110% of the -------------- amount of the annual premiums made as of the date hereof by the Company for not less than three years after such insurance (the Effective Time "Maximum Amount"). If the current amount of the premiums necessary to -------------- maintain or procure such insurance coverage exceeds the Maximum Amount, Parent shall use its reasonable best efforts to maintain the most advantageous policies of directors' and officers' liability insurance maintained by the Company with respect to matters occurring prior obtainable for a premium equal to the Effective Time; PROVIDED, HOWEVER, that (i) the Surviving Corporation may substitute therefor policies of at least the same coverage (with carriers comparable to the Company's existing carriers) containing terms and conditions which are no less advantageous to the Indemnified Parties and (ii) the Surviving Corporation shall not be required to pay a premium at a rate for such insurance in excess of 200% of the annual premium rate represented by the last premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount and (iii) any or all of the Indemnified Parties shall have the right to provide funds to the Surviving Corporation to fund premiums to the extent they exceed such 200% levelMaximum Amount. (bc) The terms and provisions of this Section 4.13 6.9 are intended to be in ----------- addition to the rights otherwise available to the Company Indemnified Parties by applicable Law, charter, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each the Company Indemnified Party Parties and his or her their respective heirs and personal representatives.

Indemnification; Officers' and Directors' Insurance. (a) From and after the Effective Time, Parent and the Surviving Corporation shall indemnify, defend and hold harmless each person who was, is now, or who becomes prior to the Effective Time, an officer officer, director or director employee of the Company (the "Indemnified Parties") against all losses, expenses, claims, damages, liabilities, costs, expenses, judgments or amounts that are paid in settlement with the approval of the indemnifying party (which approval will not be unreasonably withheld) arising out of any action or omission of such Indemnified Party in his or her capacity as an officer or director of the Company in connection with the transactions contemplated by this Agreement to the fullest extent provided for under the Company's Certificate of Incorporation and By Laws as in effect as of the date hereof or permitted or required by applicable law, including without limitation the advancement of expenses. Parent agrees that all rights to indemnification existing in favor of the Indemnified Parties directors, officers or employees of the Company as provided in the Company's Certificate of Incorporation or By-Laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time, and Parent hereby guarantees the due and prompt performance in full of such indemnification obligations of the Surviving Corporation. Parent agrees to use its best efforts to cause the Surviving Corporation to maintain in effect for not less than three years after the Effective Time the current policies of directors' and officers' liability insurance maintained by the Company with respect to matters occurring prior to the Effective Time; PROVIDEDprovided, HOWEVERhowever, that (i) the Surviving Corporation may substitute therefor policies of at least the same coverage (with carriers comparable to the Company's existing carriers) containing terms and conditions which are no less advantageous to the Indemnified Parties and (ii) the Surviving Corporation shall not be required to pay a premium at a rate for such insurance in excess of 200150% of the annual premium rate represented by the last premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount and (iii) any or all of the Indemnified Parties shall have the right to provide funds to the Surviving Corporation to fund premiums to the extent they exceed such 200150% level. (b) In the event that any action, suit, proceeding or investigation relating hereto or to the transactions contemplated by this Agreement is commenced, whether before or after the Effective Time, the parties hereto agree to cooperate and use their respective best efforts to vigorously defend against and respond thereto. (c) The provisions of this Section 4.13 4.14 are intended for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and personal representatives.

Indemnification; Officers' and Directors' Insurance. (a) From and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless each person who is now, or who becomes prior to the Effective Time, an officer or director of the Company (the "Indemnified Parties") against all losses, expenses, claims, damages, liabilities, costs, expenses, judgments or amounts that are paid in settlement with the approval of the indemnifying party (which approval will not be unreasonably withheld) arising out of any action or omission of such Indemnified Party in his or her capacity as an officer or director of the Company in connection with the transactions contemplated by this Agreement to the fullest extent provided for under the Company's Certificate of Incorporation and By Laws as in effect as of the date hereof or permitted or required by applicable law, including without limitation the advancement of expenses. Parent Acquisition agrees that all rights to indemnification existing as of the date hereof in favor of the Indemnified Parties present or former directors, officers, employees, fiduciaries and agents of Xxxxxxxx or any of the Subsidiaries as provided in Xxxxxxxx'x certificate of incorporation or by-laws or pursuant to other agreements, arrangements or the Company's Certificate certificate of Incorporation incorporation, by-laws or By-Laws, similar documents of any of the Subsidiaries as in effect as of on the date hereof, hereof with respect to matters occurring through prior to the Effective Time, Time shall survive the Merger and shall continue in full force and effect pursuant to the terms thereof. The Surviving Corporation shall cause to be maintained in effect for a period of not less than six years from the Effective Time, and Parent hereby guarantees the due and prompt performance in full of such indemnification obligations of the Surviving Corporation. Parent agrees to use its best efforts to cause the Surviving Corporation to maintain in effect for not less than three years after the Effective Time the current policies of directors' and officers' liability insurance and the Xxxxxxxx employed lawyers liability insurance maintained by Xxxxxxxx and its Subsidiaries, each as in effect on the Company date hereof (provided that they may substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous), with respect to matters occurring prior to the Effective Time; PROVIDED, HOWEVER, that (i) the Surviving Corporation may substitute therefor policies of at least the same coverage (with carriers comparable to the Company's existing carriers) containing terms and conditions which are no less advantageous to the Indemnified Parties and (ii) the Surviving Corporation shall not be required to pay a premium at a rate for such insurance in excess of 200% of the annual premium rate represented by the last premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount and (iii) any or all of the Indemnified Parties shall have the right to provide funds to the Surviving Corporation to fund premiums to the extent they exceed such 200% level. (b) The provisions It is understood and agreed that Xxxxxxxx shall, to the fullest extent permitted under applicable law and regardless of whether the Merger becomes effective, indemnify and hold harmless, and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer and fiduciary of Xxxxxxxx or any of the Subsidiaries (collectively, the "Indemnified Parties") against any fees, costs or expenses (including reasonable attorneys' fees) and judgments, fines, losses, damages, liabilities and amounts paid in settlement (collectively, "Losses"), in connection with any pending, threatened or completed claim, action, suit, proceeding or investigation arising out of any actions or omissions occurring at or prior to the Effective Time that are in whole or in part based on or arising out of the fact that such person is or was a director, officer or fiduciary of Xxxxxxxx or pertaining to any of the transactions contemplated hereby. In no event shall Xxxxxxxx or the Surviving Corporation be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). Any Indemnified Party wishing to claim indemnification under this Section 4.13 are 5.09(b), upon learning of any such claim, action, suit, proceeding or investigation, shall notify Xxxxxxxx (or after the Effective Time, the Surviving Corporation) (but the failure so to notify shall not relieve a party from any liability which it may have under this Section 5.09(b) except to the extent such failure prejudices such party's position with respect to such claims) and shall deliver to Xxxxxxxx (or after the Effective Time, the Surviving Corporation) the undertaking contemplated by Section 723(c) of the BCL. Xxxxxxxx (or, after the Effective Time, the Surviving Corporation) shall be entitled to assume and control the defense of any such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party; provided, however, that any Indemnified Party may at its own expense retain separate counsel to participate in such defense. If Xxxxxxxx or the Surviving Corporation does not elect to assume such defense, then the Indemnified Parties may assume such defense with one counsel (and, if required, one local counsel) of their own choosing reasonably acceptable to Xxxxxxxx or the Surviving Corporation. (c) If any action, suit, proceeding or investigation relating hereto or to the transactions contemplated hereby is commenced, whether before or after the Effective Time, Xxxxxxxx and, after the Effective Time, the Surviving Corporation, shall agree to use their commercially reasonable efforts to defend against and respond thereto. (d) This Section 5.09 shall survive for a period of six years (and thereafter with respect to claims then pending) following the Effective Time and is intended for to benefit Xxxxxxxx, the benefit ofSurviving Corporation and the Indemnified Parties. In the event Xxxxxxxx or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation of such consolidation or merger, or (ii) transfers all or substantially all of its properties to any person, then, and in each case, proper provision shall be enforceable bymade so that the successors and assigns of Xxxxxxxx and the Surviving Corporation, each Indemnified Party and his or her heirs and personal representativesas the case may be, shall assume the obligations set forth in this Section 5.09.

Indemnification; Officers' and Directors' Insurance. (a) From and after the Effective Time, Newco shall, or shall cause the Surviving Corporation shall to, indemnify, defend and hold harmless each person who is now, or who becomes prior to the Effective Time, an officer or director present and former officers and directors of the Company (the each an "Indemnified PartiesOfficer/Director") against all losses, expenses, claims, damages, liabilities, costs, expenses, judgments liabilities or amounts that are paid in settlement with of, or otherwise in connection with, any claim, action, suit, proceeding or investigation (a "Claim"), based in whole or in part on the approval fact that such person is or was a director or officer of the indemnifying party (which approval will not be unreasonably withheld) Company and arising out of any action actions or omission of such Indemnified Party in his omissions occurring at or her capacity as an officer or director of prior to the Company Effective Time (including, without limitation, in connection with the Merger and the other transactions contemplated by this Agreement Agreement), in each case to the full extent permitted under the Mississippi BCA and the Company's certificate of incorporation and bylaws (to the extent permitted by applicable law) as in effect on the date of this Agreement. Newco shall, or shall cause the Surviving Corporation to, pay any expenses in advance of the final disposition of any such Claim to each Indemnified Officer/Director to the fullest extent provided for permitted under the Company's Certificate of Incorporation and By Laws as in effect as of the date hereof or permitted or required by applicable law, including without limitation the advancement of expenses. Parent agrees that all rights to indemnification existing in favor of Mississippi BCA upon receipt from the Indemnified Parties as provided in Officer/Director to whom expenses are advanced of any undertaking to repay such advances required under the Company's Certificate of Incorporation Mississippi BCA. Newco shall, or By-Laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time, and Parent hereby guarantees the due and prompt performance in full of such indemnification obligations of the Surviving Corporation. Parent agrees to use its best efforts to cause the Surviving Corporation to, cooperate in the defense of any such matter. (b) Newco shall, or shall cause the Surviving Corporation to, keep in effect provisions in its certificate of incorporation and bylaws providing for exculpation of director liability and its indemnification of the Indemnified Officers/Directors to the fullest extent permitted under the Mississippi BCA, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enlarge the right of indemnification of the Indemnified Officers/Directors. (c) Newco shall at its expense maintain or cause to be maintained in effect for not less than three five (5) years after from the Effective Time the current policies of directorsofficers' and officersdirectors' liability insurance most recently maintained by the Company (provided that Newco may substitute or cause to be substituted therefor policies of at least the same coverage containing terms and conditions which are no less advantageous so long as such substitution does not result in gaps or lapses in coverage) with respect to matters occurring prior to the Effective Time; PROVIDEDprovided, HOWEVERhowever, that (i) the Surviving Corporation may substitute therefor policies of at least the same coverage (with carriers comparable to the Company's existing carriers) containing terms and conditions which are no less advantageous to the Indemnified Parties and (ii) the Surviving Corporation Newco shall not be required obligated to pay a make or cause to -------- ------- be made annual premium at a rate payments for such insurance in excess of to the extent premiums exceed 200% of the annual premium rate represented premiums paid by the last premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible Newco for such amount insurance during the year following the IPO. Newco shall pay or cause to be paid all expenses (including attorney's fees and (iiiexpenses) that may be incurred by any or all of Indemnified Officer/Director in enforcing the Indemnified Parties indemnity and other obligations provided for in this Section 5.9, provided, however, that Newco shall have the right to provide funds to the Surviving Corporation to fund premiums to the extent they exceed such 200% levelnot be liable for any -------- ------- settlement effected without its prior consent. (bd) In the event that Newco or any of its successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation thereof, then proper provision shall be made so that the successors and assigns of Newco or of its successors or assigns, as the case may be, shall assume its obligations set forth in this Section 5.9. (e) The provisions of this Section 4.13 5.9 shall survive the consummation of the Merger and expressly are intended for the to benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and personal representativesOfficer/Director.