Common use of Agreements to Indemnify Clause in Contracts

Agreements to Indemnify. (a) Subject to the terms and conditions of this Article VIII, each of the Seller and the Shareholder (jointly and severally) covenants and agrees to indemnify, defend and hold harmless the Purchaser and its Affiliates (including any officer, director, stockholder, partner, member, employee, agent or representative of any thereof) (a "Purchaser Affiliate") from and against all assessments, losses, damages, liabilities, costs and expenses, including without limitation interest, penalties and reasonable fees and expenses of legal l counsel (collectively, "Damages") imposed upon or incurred by the Purchaser or any Purchaser Affiliate arising out of, in connection with or resulting from: (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Seller or the Shareholder contained in or made pursuant to this Agreement or any Related Document to which the Seller or the Shareholder is a party; (ii) any and all Excluded Liabilities; and (iii) any and all claims made by creditors of the Seller relating to the provisions of any "bulk sales" laws of any state or other jurisdiction that be applicable to the transactions contemplated hereby. (b) Subject to the terms and conditions of this Article VIII, each of the Purchaser and HCC jointly and severally covenants and agrees to indemnify, defend and hold harmless the Seller, the Shareholder and their Affiliates (including any successor or assigns, officer, director, stockholder, partner, member, employee, agent or representative thereof) from and against all Damages imposed upon or incurred by the Seller or any Seller Affiliate arising out of or in connection with or resulting from: (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Purchaser or HCC contained in or made pursuant to this Agreement or any Related Document to which the Purchaser or HCC is a party; and (ii) any and all Assumed Liabilities. (c) The Indemnitor shall reimburse an Indemnified Party promptly after delivery of an Indemnification Notice certifying that the Indemnified Party has incurred Damages after compliance with the terms of this Article VIII; provided, however, that the Indemnitor shall have the right to contest any such -------- ------- Damages or its obligations to indemnify therefor in accordance with the terms of this Agreement. (d) Any Claims of Purchaser shall be processed through the escrow provided for in Section 2.06 of this Agreement to the extent the same can be satisfied from the shares in the escrow account.

Agreements to Indemnify. (a) Subject to the terms and conditions of this Article VIII, each of the Seller and the Shareholder (jointly and severally) covenants and agrees to indemnify, defend and hold harmless the Purchaser and its Affiliates (including any officer, director, stockholder, partner, member, employee, agent or representative of any thereof) (a "Purchaser Affiliate") from and against all assessments, losses, damages, liabilities, costs and expenses, including without limitation interest, penalties and reasonable fees and expenses of legal l counsel (collectively, "Damages") imposed upon or incurred by the a Purchaser or any Purchaser Affiliate arising out of, in connection with or resulting from: (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Seller or the Shareholder contained in or made pursuant to this Agreement or any Related Document to which the Seller or the Shareholder is a party; (ii) any and all Excluded Liabilities; and (iii) any and all claims made by creditors of the Seller relating to the provisions of any "bulk sales" laws of any state or other jurisdiction that be applicable to the transactions contemplated hereby. (b) Subject to the terms and conditions of this Article VIII, each of the Purchaser and HCC jointly and severally covenants and agrees to indemnify, defend and hold harmless the Seller, the Shareholder Seller and their its Affiliates (including any successor or assigns, officer, director, stockholder, partner, member, employee, agent or representative thereof) from and against all Damages imposed upon or incurred by the Seller or any Seller Affiliate such indemnified party arising out of or in connection with or resulting from: (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Purchaser or HCC contained in or made pursuant to this Agreement or any Related Document to which the Purchaser or HCC is a party; and (ii) any and all Assumed Liabilities. (c) The Indemnitor shall reimburse an Indemnified Party promptly after delivery of an Indemnification Notice certifying that the Indemnified Party has incurred Damages after compliance with the terms of this Article VIII; provided, howeverPROVIDED, HOWEVER, that the Indemnitor shall have the right to contest any such -------- ------- Damages or its obligations to indemnify therefor in accordance with the terms of this Agreement. (d) Any Claims of Purchaser shall be processed through the escrow provided for in Section 2.06 of this Agreement to the extent the same can be satisfied from the shares in the escrow account.

Agreements to Indemnify. (a) Subject to the terms and conditions of this Article VIIIX, each of the Seller and the Shareholder (--------- IVonyx Parties jointly and severally) covenants severally covenant and agrees agree to indemnify, defend and hold harmless the Purchaser Parent, Acquisition Sub and its their Affiliates (including any officer, director, stockholder, partner, principal, member, attorney, employee, agent or representative of any thereof) (a collectively, the "Purchaser AffiliateKoop Indemnified ---------------- Parties") from and against all assessmentscosts, losses, Liabilities, obligations, damages, liabilities------- lawsuits, costs deficiencies, claims, demands and expensesexpenses (whether or not arising out of third party Claims), including without limitation interest, penalties and penalties, costs of mitigation, reasonable attorneys' fees and expenses all amounts paid in investigation, defense or settlement of legal l counsel any of the foregoing (collectively, "Damages") ), imposed ------- upon or incurred by the Purchaser or any Purchaser Affiliate Koop Indemnified Parties arising out of, of or in connection with or resulting from: from or incident to (i) any breach of any representation or warranty of, or nonfulfillment made by any of the IVonyx Parties in this Agreement; (ii) any breach of any covenant or agreement of, made by any of the Seller or the Shareholder contained IVonyx Parties in or made pursuant to this Agreement or any Related Document to which the Seller or the Shareholder is a party; (ii) any and all Excluded LiabilitiesAgreement; and (iii) any Excluded Liabilities; and all claims made by creditors (iv) any Damages of any nature (absolute, accrued, contingent or otherwise) of the Seller relating IVonyx Parties or any ERISA Affiliate of IVonyx arising under or related to any Benefit Plan or related to any officer, employee, former employee, director or agent of the provisions IVonyx Parties. The term "Damages" as used in this Section 10.3 is not limited to matters asserted ------- ------------ by third parties against any Indemnified Party, but includes Damages incurred or sustained by any Indemnified Party in the absence of third party Claims. Payments by any "bulk sales" laws Indemnified Party of any state or other jurisdiction that amounts for which such Indemnified Party is indemnified hereunder shall not be applicable a condition precedent to the transactions contemplated herebyrecovery. (b) Subject to the terms and conditions of this Article VIIIX, each of the Purchaser and HCC Koop --------- Parties jointly and severally covenants covenant and agrees agree to indemnify, defend and hold harmless the Seller, the Shareholder IVonyx Parties and their Affiliates (including any successor or assigns, officer, director, stockholder, partner, principal, member, attorney, employee, agent or representative thereof) (collectively, the "IVonyx Indemnified Parties") from -------------------------- and against all Damages imposed upon or incurred by the Seller or any Seller Affiliate such Indemnified Party arising out of or in connection with or resulting from: from or incident to (i) any breach of any representation or warranty of, or nonfulfillment made by either Koop Party in this Agreement; and (ii) any breach of any covenant or agreement of, the Purchaser or HCC contained made by either Koop Party in or made pursuant to this Agreement or any Related Document to which the Purchaser or HCC is a party; and (ii) any and all Assumed LiabilitiesAgreement. (c) The Indemnitor shall reimburse an Indemnified Party promptly after delivery of an Indemnification Notice certifying that the Indemnified Party has incurred Damages after compliance with the terms of this Article VIII; X, --------- provided, however, that the Indemnitor shall have the right to contest any such -------- ------- Damages or its obligations to indemnify therefor in accordance with the terms of this Agreementgood faith. (d) Any Claims of Purchaser shall be processed through the escrow provided for in Section 2.06 of this Agreement to the extent the same can be satisfied from the shares in the escrow account.

Agreements to Indemnify. (a) Subject to the terms and conditions of this Article VIIIVII, each of the Seller and the Shareholder (Parties, jointly and severally) , covenants and agrees to indemnify, defend and hold harmless the Purchaser and its Affiliates (including any officer, director, stockholdershareholder, partner, member, employee, agent or representative Representative of any thereof) (each, a "“Purchaser Affiliate"Indemnified Party” and collectively, the “Purchaser Indemnified Parties”) from and against all assessments, losses, damages, liabilities, costs and expenses, including without limitation including, but not limited to, interest, penalties penalties, and reasonable fees and expenses of legal l counsel (collectively, "“Damages") imposed upon or ”), to the extent incurred by the a Purchaser Indemnified Party as a result of or any Purchaser Affiliate arising out of, in connection with or resulting from: (i) relating to: any breach of any representation or warranty of, of the Seller contained in Article V of this Agreement or in any Related Document to which the Seller is a party; any breach or nonfulfillment of any covenant or agreement of, of the Seller or the Shareholder contained in or made pursuant to this Agreement or in any Related Document to which the Seller or the Shareholder is a party; (ii) any and all ; the Excluded Liabilities; and (iii) or any and all claims made by creditors of the Seller relating to the provisions of any "“bulk sales" ” laws of any state or other jurisdiction that may be applicable to the transactions contemplated hereby. (b) . Subject to the terms and conditions of this Article VIIIVII, each of the Purchaser and HCC jointly and severally covenants and agrees to indemnify, defend and hold harmless the Seller, the Shareholder Seller and their its Affiliates (including any successor or assigns, officer, director, stockholdershareholder, partner, member, employee, agent or representative Representative thereof) (each, a “Seller Indemnified Party” and collectively, the “Seller Indemnified Parties”) from and against all Damages imposed upon or to the extent incurred by the a Seller or any Seller Affiliate arising out Indemnified Party as a result of or in connection with or resulting from: (i) relating to: any breach of any representation or warranty of, of the Purchaser contained in Article VI of this Agreement or in any Related Document to which the Purchaser is a party; any breach or nonfulfillment of any covenant or agreement of, of the Purchaser or HCC contained in or made pursuant to this Agreement or in any Related Document to which the Purchaser or HCC is a party; and (ii) any and all the Assumed Liabilities; or any breach or violation of the Maryland Security Guards Act (Title 19 of the Business Occupations and Professions Article of the Annotated Code of Maryland), or any related Federal statute or regulation, COMAR or other regulations promulgated by the State of Maryland or regulation of any local jurisdiction in which Seller's license to operate a Security Guard firm (“Seller’s License”) is utilized by Purchaser, until such time as Purchaser obtains its own Security Guard license, whether on or after the Closing Date, at which time Purchaser hereby expressly agrees that it shall no longer use, or have any rights with respect to, Seller’s License. (c) The Indemnitor shall reimburse an Indemnified Party promptly after delivery of an Indemnification Notice certifying that the Indemnified Party has incurred Damages after compliance with the terms of this Article VIII; provided, however, that the Indemnitor shall have the right to contest any such -------- ------- Damages or its obligations to indemnify therefor in accordance with the terms of this Agreement. (d) Any Claims of Purchaser shall be processed through the escrow provided for in Section 2.06 of this Agreement to the extent the same can be satisfied from the shares in the escrow account.

Agreements to Indemnify. (a) Subject to the terms and conditions of this Article VIII12, each of the Seller and the Shareholder (jointly and severally) covenants and agrees to indemnify, defend and hold harmless the Purchaser Buyer and its Affiliates affiliates (including any successor or assign, officer, director, stockholder, partner, member, employee, agent or representative of any thereof) (a "Purchaser “Buyer Affiliate"”) from and against all assessments, losses, damages, liabilities, costs and expenses, expenses (including without limitation interest, penalties and reasonable fees and expenses of legal l counsel counsel) (collectively, "“Damages"”) imposed upon or incurred by the Purchaser Buyer or any Purchaser Buyer Affiliate (whether arising from third party claims or otherwise) arising out of, in connection with or resulting from: (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Seller or the Shareholder Company contained in or made pursuant to Article 3 of this Agreement or in any Related Document to which the Seller or the Shareholder Company is a party; (ii) any and all Excluded Liabilitiesnonfulfillment of any covenant or agreement of the Seller or the Company contained in this Agreement or in any Related Document to which the Seller or the Company is a party; and (iii) any and all claims made by creditors the nonpayment of the Seller relating to the provisions of any "bulk sales" laws of any state or other jurisdiction that be applicable to the transactions contemplated herebyRetained Liabilities. (b) Subject to the terms and conditions of this Article VIII12, each of the Purchaser and HCC jointly and severally Buyer covenants and agrees to indemnify, defend and hold harmless the Seller, the Shareholder Seller and their Affiliates its affiliates (including any successor or assignsassign, officer, director, stockholder, partner, member, employee, agent or representative thereof) from and against all Damages imposed upon or incurred by the Seller or any Seller Affiliate such indemnified party arising out of or in connection with or resulting from: (i) any breach of any representation or warranty of, of the Buyer contained in this Agreement or in any Related Document to which the Buyer is a party; (ii) any nonfulfillment of any covenant or agreement of, the Purchaser or HCC Buyer contained in or made pursuant to this Agreement or in any Related Document to which the Purchaser or HCC Buyer is a party; and (iiiii) the conduct of the business and the operations of the Company following the Closing Date (other than any and all Assumed Seller Retained Liabilities), including but not limited to the nonpayment of the Company Retained Liabilities. (c) The Subject to Section 12.5(e), the Indemnitor shall must reimburse an Indemnified Party promptly after delivery of an Indemnification Notice certifying that the Indemnified Party has incurred Damages after compliance with the terms of this Article VIII; 12, provided, however, that the Indemnitor shall have has the right right, prior to making any payment, to contest in good faith any such -------- ------- Damages or its obligations to indemnify therefor in accordance with the terms of this Agreement. (d) Any Claims of Purchaser shall be processed through the escrow provided for in Section 2.06 of this Agreement to the extent the same can be satisfied from the shares in the escrow account.

Agreements to Indemnify. (a) Subject to the terms and conditions of this Article VIIIVII, each of the Seller and the Shareholder (jointly and severally) covenants and agrees to indemnify, defend and hold harmless the Purchaser and its Affiliates (including any officer, director, stockholder, partner, member, employee, agent or representative of any thereof) (a "Purchaser Affiliate") from and against all assessments, losses, damages, liabilities, costs and expenses, including without with­out limitation interest, penalties and reasonable fees and expenses ex­penses of legal l counsel (collectively, "Damages") imposed upon or incurred by the Purchaser or any Purchaser Affiliate arising out of, in connection with or resulting from: : (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Seller or the Shareholder contained in or made pursuant to this Agreement or any Related Document to which the Seller or the Shareholder is a party; ; (ii) any nonfulfillment of any covenant or agreement of the Seller contained in or made pursuant to this Agreement or any Related Document to which the Seller is a party; (iii) any and all Excluded Liabilities; and and (iiiiv) any and all claims made by creditors of the Seller including, without limitation, relating to the provisions of any "bulk sales" laws of any state or other jurisdiction that may be applicable to the transactions contemplated hereby. (b) Subject to the terms and conditions of this Article VIIIVII, each of the Purchaser and HCC Aquamer (jointly and severally severally) covenants and agrees to indemnify, defend and hold harmless the Seller, the Shareholder Seller and their its Affiliates (including any successor or assigns, officer, director, stockholder, partner, member, employee, agent or representative thereof) from and against all Damages imposed upon or incurred by the Seller or any Seller Affiliate such Indemnified Party arising out of or in connection with or resulting from: : (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Purchaser or HCC Aquamer contained in or made pursuant to this Agreement or any Related Document to which the Purchaser or HCC Aquamer is a party; and (ii) any nonfulfillment of any covenant or agreement of the Purchaser or Aquamer contained in or made pursuant to this Agreement or any Related Document to which the Purchaser or Aquamer is a party, (iii) any and all Assumed LiabilitiesLiabilities and (iv) any liabilities arising from continuing the Product Development by Purchaser after Closing. (c) The Indemnitor shall reimburse an Indemnified Party promptly after delivery of an Indemnification Notice certifying that the Indemnified Party has incurred Damages after compliance with the terms of this Article VIIIVII; provided, however, that the Indemnitor shall have the right to contest any such -------- ------- Damages or its obligations to indemnify therefor in accordance with the terms of this Agreement. (d) Any Claims of Purchaser shall be processed through the escrow provided for in Section 2.06 of this Agreement to the extent the same can be satisfied from the shares in the escrow account.

Agreements to Indemnify. (a) Subject As used in this Agreement, the term “Indemnifiable Damages,” when referring to the terms and conditions of this Article VIII, each of the Seller and the Shareholder (jointly and severally) covenants and agrees to indemnify, defend and hold harmless damages for which the Purchaser and its Affiliates Parties (including any officerdefined below) are entitled to indemnification hereunder, directormeans, stockholderwithout duplication, partner, member, employee, agent or representative the aggregate of any thereof) (a "Purchaser Affiliate") from and against all assessmentsexpenses, losses, damagescosts, liabilitiesdeficiencies, costs liabilities and damages (including reasonable counsel and paralegal fees and expenses, including without limitation interest, penalties and reasonable fees and expenses of legal l counsel (collectively, "Damages") imposed upon incurred or incurred suffered by the Purchaser or Parties, on a pre-tax basis, net of any Purchaser Affiliate arising out ofinsurance recoveries, in connection with or to the extent resulting from: from (i) any breach by the Shareholder or the Company of any representation or warranty of, made by the Shareholder or nonfulfillment the Company in this Agreement (a “Shareholder Breach of Warranty Claim”); (ii) any violation by the Shareholder or the Company of any covenant or agreement of, made by the Seller Shareholder or the Shareholder contained Company in or made pursuant to this Agreement (unless waived in writing by the Purchaser Party making the claim); or any Related Document to which the Seller or the Shareholder is a party; (ii) any and all Excluded Liabilities; and (iii) as a result of any and all claims of the following items (in each case regardless of any disclosure made by creditors the Shareholder or the Company on the disclosure schedules attached hereto): (I) any income, sales or other taxes payable by the Company prior to or as of the Seller relating Closing Date that are not included in the calculation of Net Assets, including, in each case, any interest or penalties related thereto; (II) any liability related to the provisions of any "bulk sales" laws of any state toxic material or other jurisdiction that be applicable to the transactions contemplated hereby. (b) Subject to the terms and conditions of this Article VIII, each of the Purchaser and HCC jointly and severally covenants and agrees to indemnify, defend and hold harmless the Seller, the Shareholder and their Affiliates hazardous substance (including any successor clean-up or assigns, officer, director, stockholder, partner, member, employee, agent or representative thereofother remedial action related thereto) from and against all Damages imposed upon or incurred by the Seller or any Seller Affiliate arising that arises out of or results from any act or omission by the Company prior to the Closing or any state of facts existing on or prior to the Closing Date; (III) any liability under any 401(k) or other employee benefit plan, including related taxes, contributions and all other liabilities and expenses related thereto; (IV) any liability under any indebtedness for borrowed money of the Company existing immediately prior to the Closing; (V) any liability for any violation of any law, statute, rule or regulation by the Company or any of its directors, officers, employees or agents prior to the Closing; and (VI) any liability or cost incurred in connection with personnel adjustments made by the Company prior to the Closing as mutually agreed by the parties pursuant to Section 3.5(j). As used in this Agreement, “Indemnifiable Damages,” when referring to damages for which the Shareholder Parties (defined below) are entitled to indemnification hereunder, means, without duplication, the aggregate of all expenses, losses, costs, deficiencies, liabilities and damages (including reasonable counsel and paralegal fees and expenses) incurred or suffered by the Shareholder Parties, on a pre-tax basis, to the extent resulting from: from (i) any breach by the Purchaser of any representation or warranty of, or nonfulfillment made by the Purchaser in this Agreement (a “Purchaser Breach of Warranty Claim”); (ii) any violation by the Purchaser of any covenant or agreement ofmade by the Purchaser in this Agreement (unless waived in writing by the Shareholder Party making the claim). Notwithstanding the foregoing, Indemnifiable Damages shall not include consequential, incidental or indirect damages. 7.1.1 Subject to the limitations provided for herein, the Shareholder shall indemnify and hold the Purchaser and its officers, directors, employees, shareholders, agents, successors and assigns (the “Purchaser Parties”) harmless in respect of all Indemnifiable Damages suffered by them. 7.1.2 The Purchaser shall indemnify the Shareholder and his agents, heirs, successors and assigns (collectively, the “Shareholders Parties”) and hold each of them harmless in respect of all Indemnifiable Damages suffered by them. 7.1.3 Each of the representations and warranties made by the parties in this Agreement shall survive for a period of 24 months after the Closing Date, notwithstanding any investigation at any time made by or HCC on behalf of any party, and upon the expiration of such 24-month period such representations and warranties shall expire except as follows: (a) The representations and warranties of the Company and the Shareholder contained in or made pursuant to this Agreement or any Related Document Sections 4.6 [Tax Matters] and 4.20 [Employee Benefits] shall expire at the time the period of limitations expires for the assessment by the taxing authority of additional taxes with respect to which the Purchaser or HCC is a party; andrepresentations and warranties relate; (iib) The representations and warranties of the Company and the Shareholder contained in Sections 4.17 [Compliance with Laws] and 4.18 [Environmental Matters] shall expire at the time the latest period of limitations expires for the enforcement by an applicable governmental authority of any and all Assumed Liabilities.remedy with respect to which the particular representation or warranty relates; (c) The Indemnitor representations and warranties of the Company and the Shareholder contained in Section 4.3 [Records of the Company] and 4.32 [Common Stock and Related Matters] and the representations and warranties of the Purchaser contained in Section 5.2 [Due Authorization; Binding Obligation; No Conflicts] shall reimburse an Indemnified Party promptly survive for a period of 60 months after delivery the Closing Date; and (d) The representations and warranties of an Indemnification Notice certifying that the Indemnified Party has incurred Company and the Shareholder contained in Sections 4.1 [Organization; Power and Authority; Subsidiaries], 4.2 [Capitalization], 4.8 [Good Title to and Condition of Assets] and 4.26 [Title to DataFlow Stock], and the representations and warranties of the Purchaser contained in Sections 5.1 [Organization, Power and Authority] shall survive indefinitely. No claim for the recovery of Indemnifiable Damages based upon a Shareholder Breach of Warranty Claim or a Purchaser Breach of Warranty Claim may be asserted by any party against the other party after compliance with the terms of this Article VIIIsuch representations and warranties shall thus expire; provided, however, that good faith claims for Indemnifiable Damages first asserted in writing by the Indemnitor Indemnified Party to the Indemnifying Party (as defined below) as provided in Section 7.2 within the applicable period shall have not thereafter be barred. 7.1.4 The Purchaser acknowledges and agrees that prior to proceeding directly against the right to contest any such -------- ------- Damages Shareholder for indemnification hereunder, it will proceed against the Hold-Back Amount; provided, however, that upon either the exhaustion of the Hold-Back Amount or its obligations to indemnify therefor after the release thereof in accordance with the terms of this AgreementSection 7.3, the Purchaser may thereupon seek to recover by any legal means Indemnifiable Damages directly from the Shareholder. (d) Any Claims of Purchaser shall be processed through the escrow provided for 7.1.5 Anything in this Section 2.06 of this Agreement 7.1 to the extent contrary notwithstanding, the same can Shareholder shall not be satisfied from liable to the shares Purchaser Parties for any claim for Indemnifiable Damages unless all Indemnifiable Damages exceed an aggregate deductible amount of $30,000, in which case the escrow accountShareholder shall then be liable for all Indemnifiable Damages above such $30,000 deductible amount.

Agreements to Indemnify. (a) Subject The Seller hereby agrees to the terms and conditions of this Article VIII, each of the Seller indemnify Parent and the Shareholder Purchaser (jointly including its employees, agents and severally) covenants Affiliates), and agrees to indemnify, defend save and hold such Persons harmless the Purchaser and its Affiliates (including any officer, director, stockholder, partner, member, employee, agent or representative of any thereof) (a "Purchaser Affiliate") from and against all assessmentsany action, lossescost, damagesdamage, liabilitiesdisbursement, costs and expensesexpense, including without limitation interestliability, penalties and reasonable fees and expenses loss, injury, deficiency, penalty, diminution in value, settlement or obligation of legal l counsel any kind or nature (collectively, "Claims For Losses"), including but not limited to interest, penalties, fines, legal, accounting, and other professional fees and expenses incurred in the investigation, collection, prosecution, determination and defense of Claims For Losses, amounts paid in settlement, any incidental or consequential damages and any punitive damages payable to third parties, including employees or former employees, agents, officers, contractors, shareholders, option holders warrant holders or creditors of the Seller, Parent or the Purchaser, as the case may be, that may be imposed on or otherwise incurred or suffered by the specified person (collectively, all such items listed above referred to above as "Damages") imposed upon or incurred by the Purchaser or any Purchaser Affiliate arising out of), in connection with or resulting from: (i) any inaccuracy in any representation or breach of any representation warranty of the Seller contained herein (or warranty of, in any Schedule delivered pursuant hereto) or in any Transaction Document; (ii) the breach or nonfulfillment of any covenant covenant, agreement or agreement of, other obligation of the Seller or the Shareholder contained in or made pursuant to under this Agreement or any Related Document to which the Seller or the Shareholder is a partyother Transaction Document; (iiiii) any action, suit, claim, proceeding or investigation (regardless of whether at law or equity) brought or initiated by any current or former holder of any shares of the Seller's capital stock or securities convertible into or exercisable for shares of the Seller's capital stock (or any of such holder's representatives), brought or initiated in their capacity as such a holder, regarding the fair value of such holder's securities or the fairness or legality of any of the transactions contemplated by the Transaction Documents or otherwise arising from or relating to the transactions contemplated by any of the Transaction Documents (other than the Employment Agreements); (iv) any suit bought by a former employee, officer, agent, contractor, shareholder, option holder, warrant holder or creditor of the Seller in connection with the transactions contemplated by the Transaction Documents or; and (v) any and all Excluded Liabilities; and. (b) Parent and the Purchaser hereby agrees to indemnify the Seller (including its employees, agents and Affiliates) and save and hold such Persons harmless from and against any Damages resulting from; (i) any inaccuracy in any representation or breach of any warranty of Parent or the Purchaser contained herein (or in any schedule hereto or certificate delivered pursuant hereto) or in any Transaction Document; (ii) the breach or nonfulfillment of any covenant, agreement or other obligation of Parent or the Purchaser under this Agreement or any other Transaction Document; (iii) any and all claims made suit bought by creditors a former employee, officer, agent, contractor, shareholder, option holder, warrant holder or creditor of Parent or the Seller relating to the provisions of any "bulk sales" laws of any state or other jurisdiction that be applicable to Purchaser in connection with the transactions contemplated hereby. (b) Subject to the terms and conditions of this Article VIII, each of the Purchaser and HCC jointly and severally covenants and agrees to indemnify, defend and hold harmless the Seller, the Shareholder and their Affiliates (including any successor or assigns, officer, director, stockholder, partner, member, employee, agent or representative thereof) from and against all Damages imposed upon or incurred by the Seller or any Seller Affiliate arising out of or in connection with or resulting from: (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Purchaser or HCC contained in or made pursuant to this Agreement or any Related Document to which the Purchaser or HCC is a partyTransaction Documents; and (iiiv) any and all Assumed Liabilities. (c) The Indemnitor shall reimburse Promptly after the receipt by any party hereto of notice of any claim or commencement by a third party of any action or proceeding subject to indemnification hereunder (the "Asserted Damages"), such party (the "Indemnified Party") will, if a claim in respect thereto is to be made against any party obligated to provide indemnification hereunder (an Indemnified "Indemnifying Party"), give such Indemnifying Party promptly after delivery reasonable written notice of an Indemnification Notice certifying that such claim or the Indemnified Party has incurred Damages after compliance with the terms commencement of this Article VIIIany such action or proceeding; provided, however, that the Indemnitor failure to provide such notice will not relieve the Indemnifying Party of its obligations pursuant to this Section 7.2 unless such failure shall materially prejudice the Indemnifying Party's opportunity to defend or compromise the Asserted Damages, and in that case, only to the extent the Indemnifying Party has been so prejudiced thereby. Such Indemnifying Party shall have the right, at its option, to defend at its own expense and by its own counsel any Asserted Damages for which it would be responsible to indemnify hereunder, provided that the Indemnifying Party and its counsel proceed with diligence and in good faith with respect thereto; in the event the settlement or other resolution of the underlying claim may have an adverse effect on the Indemnified Party, the Indemnifying Party may not agree to such settlement or other resolution without the prior written consent of the Indemnified Party, which consent may not be unreasonably withheld or delayed. If any Indemnifying Party shall undertake to defend any Asserted Damages, it shall promptly notify the Indemnified Party of its intention to do so and the Indemnified Party agrees to cooperate in good faith with the Indemnifying Party and its counsel in the defense of any Asserted Damages. Notwithstanding the foregoing, the Indemnified Party shall have the right to contest participate in the defense or investigation of any Asserted Damages with its own counsel at its own expense, except that the Indemnifying Party shall bear the expense of such -------- ------- separate counsel if (i) in the reasonable opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice would be expected to give rise to a conflict of interest, (ii) the Indemnifying Party shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the Asserted Damages is given to the Indemnifying Party or its obligations (iii) the Indemnifying Party shall authorize the Indemnified Party to indemnify therefor in accordance with employ separate counsel at the terms expense of this Agreementthe Indemnifying Party. (d) Any Claims claim for Damages hereunder resulting from any inaccuracy in any representation or breach of any warranty must be made on or prior to the last date such representation or warranty survives in accordance with Section 7.1 hereof and any other claim under this Agreement must be brought no later than eighteen months from the date hereof. (e) Notwithstanding anything to the contrary contained in this Section 7.2, (i) the Seller shall not have any liability under clause (i) of Section 7.2(a) unless the aggregate amount of Damages under such clause exceeds $100,000 (the "Threshold Amount"), in which event the Seller shall have liability, subject to clause (ii) below, for the entire amount of Damages and (ii) the Seller's aggregate liability under clauses (i) and (ii) of Section 7.2(a) shall not exceed the amount of, and shall be payable solely from, the Escrow Fund; provided, however, that the limitations set forth in this paragraph (e) shall not apply to claims in respect of fraud or intentional misrepresentation. (f) Notwithstanding anything to the contrary contained in this Section 7.2, (i) Parent and the Purchaser shall not have any liability under clause (i) of Section 7.2(b) unless the aggregate amount of Damages under such clause exceeds an amount equal to the Threshold Amount, in which event Parent and the Purchaser shall have liability, subject to clause (ii) below, for the entire amount of Damages and (iii) Parent and the Purchaser's aggregate liability under Section 7.2(b) shall not exceed $1,300,000; provided, however, that the limitations set forth in this paragraph (f) shall not apply to claims in respect of fraud and intentional misrepresentation. (g) The sole and exclusive remedy for the Seller, Parent and the Purchaser for claims in connection with the transactions contemplated by this Agreement, including without limitation claims for any breach of representation, warranty or covenant made in this Agreement or in any other Transaction Document or any other instruments or documents furnished in connection herewith or therewith, shall be processed through a claim for indemnification made pursuant to and subject to the escrow provided for in Section 2.06 terms and conditions of this Agreement Article VII; provided, however, that the limitations set forth in this paragraph (g) shall not apply to claims in respect of fraud or intentional misrepresentation and shall not limit claims by Parent or the Purchaser with regard to the extent Employment Agreements, the same can be satisfied from Non-Competition Agreements, the shares in Consulting Agreements, the escrow accountDiscovery Agreements or the Safeway Agreement.

Agreements to Indemnify. (a) Subject to the terms and conditions of this Article VIIIVII, each of and except as otherwise provided in this Agreement, the Seller and the Shareholder (Solomon, jointly and severally) covenants , covenant and agrees agree to indemnify, defend and hold harmless the Purchaser Purchaser, and its Affiliates (Affiliates, including any officer, director, stockholder, partner, member, employee, agent or representative of any thereof) thereof (a "Purchaser Affiliate") ), from and against all assessments, losses, damages, liabilities, costs and expenses, including including, without limitation interest, penalties and reasonable fees and expenses of legal l counsel chosen by Purchaser or Purchaser Affiliate (collectively, "Damages") ), imposed upon or incurred by the Purchaser Purchaser, or any Purchaser Affiliate arising out of, of or in connection with or resulting from: from (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Seller or the Shareholder and/or Solomon contained in or made pursuant to this Agreement or any Related Document agreement (other than the Employment Agreement of Solomon, the Interim Lease, and/or the Lease) to which the Seller be delivered in connection with this Agreement, or the Shareholder is a party; any Schedule or Exhibit hereto or thereto, or any certificate or instrument furnished or to be furnished to Purchaser hereunder or thereunder, (ii) any and all Excluded Liabilities; and liabilities and obligations of the Seller, or arising out of or related to their ownership of the Acquired Assets prior to the Closing Date, (iii) any chargebacks or allowances with respect to merchandise shipped prior to Closing by Seller for which credit has not been issued prior to Closing which chargebacks and allowances were applied by customers against invoices for purchases made after the Closing Date invoiced by Purchaser relating to pre-Closing periods ("Chargeback Allowances"), (iv) third party claims arising in breach of contract, breach of warranty, product liability, unfair competition, personal or other injury, tort or infringement of property rights of others or other third party claims, in each case which claim is with respect to any and all claims made by creditors activities of the Seller relating Seller, or any Affiliate thereof in connection with the conduct of the Business on or before the Closing Date and (v) any and all actions, suits, demands, claims, costs and expenses, including legal fees, incident to the provisions of any "bulk sales" laws of any state foregoing or other jurisdiction that be applicable to the transactions contemplated herebyin enforcing this indemnity. (b) Subject to the terms and conditions of this Article VIIIVII, each of and except as otherwise provided for in the Agreement, Purchaser and HCC jointly and severally covenants and agrees to indemnify, defend and hold harmless the Seller, the Shareholder Seller and Solomon and their respective Affiliates (including any successor or assigns, officer, director, stockholder, partner, member, employee, agent or representative thereof) ("Stockholder Affiliates") from and against all Damages (including reasonable fees and expenses of the Seller's legal counsel) imposed upon or incurred by the Seller or any Seller Affiliate Solomon arising out of or in connection with or resulting from: from (i) any breach of any representation or warranty of, or nonfulfillment of any covenant or agreement of, the Purchaser or HCC contained in or made pursuant to this Agreement or any Related Document agreement to which be delivered in connection with this Agreement, or any Schedule or Exhibit hereto or thereto, or any certificate or instrument furnished or to be furnished to the Purchaser Seller hereunder or HCC is a party; and thereunder, (ii) any and all Assumed LiabilitiesContracts and Assumed Liabilities and (iii) third party claims arising in breach of contract, breach of warranty, unfair competition, personal or other injury, tort or infringement of property rights of others or other third party claims, in each case which claim is with respect to any and all activities of Purchaser or any Purchaser Affiliate in connection with the conduct of the Business on or after the Closing Date. (c) The Indemnitor shall reimburse an Indemnified Party promptly after delivery of an Indemnification Notice certifying that the Indemnified Party has incurred Damages after compliance with the terms of this Article VIII; provided, however, that the Indemnitor shall have the right to contest any such -------- ------- Damages or its obligations to indemnify therefor in accordance with the terms of this Agreement. (d) Any Claims of Purchaser shall be processed through the escrow provided for in Section 2.06 of this Agreement to the extent the same can be satisfied from the shares in the escrow account.