Common use of Indemnification by Stockholders Clause in Contracts

Indemnification by Stockholders. Each Selling Stockholder will, in the event that any Registration is being effected under the 1933 Act pursuant to this Agreement of any Registrable Securities held by such Stockholder and the Company has required all Selling Stockholders to provide such an undertaking on the same terms, indemnify and hold harmless the Company, each of its directors and officers, legal counsel, accountants and each Underwriter (if any), and each other Selling Stockholder and each other person, if any, who controls another Selling Stockholder or such underwriter within the meaning of the 1933 Act, against any Losses, insofar as such Losses arise out of or are based upon any Misstatement contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the 1933 Act, any preliminary Prospectus, final Prospectus or summary Prospectus contained in the Registration Statement, or any amendment or supplement thereto, if the Misstatement was made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder expressly for use therein, and shall reimburse the Company, its directors and officers, and each other Selling Stockholder for any reasonable, customary and documented out-of-pocket legal or other expenses incurred by any of them in connection with investigation or defending any such Loss. Each Selling Stockholder’s indemnification obligations hereunder shall be several and not joint and shall be proportional to and limited to the amount of any net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such Selling Stockholder in connection with the sale of Registrable Securities under a Registration Statement from which such Losses arise, except in the case of fraud or willful misconduct by such Selling Stockholder.

Indemnification by Stockholders. Each Selling Stockholder willshall, in the event that any Registration is being effected under the 1933 Act pursuant to this Agreement of any Registrable Securities held by such Stockholder severally and the Company has required all Selling Stockholders to provide such an undertaking on the same termsnot jointly, indemnify and hold harmless the CompanyParent, its directors, officers, agents and employees, each of its directors and officers, legal counsel, accountants and each Underwriter (if any), and each other Selling Stockholder and each other person, if any, Person who controls another Selling Stockholder or such underwriter the Parent (within the meaning of Section 15 of the 1933 Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such Controlling Persons, to the fullest extent permitted by applicable law, from and against any all Losses, insofar as such Losses arise incurred, arising out of or are based solely upon any Misstatement untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the 1933 ActStatement, any preliminary Prospectus, final Prospectus or summary Prospectus contained in the Registration Statementany form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, or any form of prospectus or supplement thereto, if in light of the Misstatement was made in reliance circumstances under which they were made) not misleading (i) to the extent that such untrue or alleged untrue statements or omissions or alleged omissions are based solely upon and in conformity with information regarding such Stockholder furnished in writing to the Company Parent by such Selling Stockholder expressly for use therein, and shall reimburse the Company, its directors and officers, and each other Selling Stockholder for any reasonable, customary and documented out-of-pocket legal therein or other expenses incurred by any of them in connection with investigation or defending any such Loss. Each Selling Stockholder’s indemnification obligations hereunder shall be several and not joint and shall be proportional to and limited to the amount of any net proceeds (after payment of any underwriting fees, discounts, commissions or taxesii) actually received by such Selling Stockholder in connection with the sale of Registrable Securities under a Registration Statement from which such Losses arise, except in the case of fraud or willful misconduct an occurrence of an event of the type specified in Section 3(c)(iii)-(vi), to the extent related to the use by such Selling StockholderStockholder of an outdated or defective Prospectus after the Parent has notified such Stockholder in writing that the Prospectus is outdated or defective and prior to the receipt by such Stockholder of the Advice contemplated in Section 6(c), but only if and to the extent that following the receipt of the Advice the misstatement or omission giving rise to such Loss would have been corrected. In no event shall the liability of any selling Stockholder hereunder be greater in amount than the dollar amount of the net proceeds received by such Stockholder upon the sale of the Registrable Securities giving rise to such indemnification obligation.

Indemnification by Stockholders. Each Selling Stockholder will, in the event that In connection with any Registration is being effected under Statement filed pursuant hereto, each Stockholder will furnish to the 1933 Act pursuant Company in writing such information with respect to this Agreement such Stockholder, including the name, address and the amount of any Registrable Securities held by such Stockholder and Stockholder, as the Company has reasonably requests, and as shall be required all Selling Stockholders to provide by law or by the SEC in connection with any registration, for use in such an undertaking on Registration Statement or the same terms, related Prospectus and indemnify and hold harmless the Company, each of its directors or any underwriter, as the case may be, and their respective directors, officers, legal counselagents, accountants trustees, stockholders and each Underwriter controlling Persons (if any), and each other Selling Stockholder and each other person, if any, who controls another Selling Stockholder or such underwriter within the meaning of Section 15 of the 1933 Securities Act or Section 20 of the Exchange Act), against any Losseslosses, insofar claims, damages, liabilities and expenses (including reasonable attorneys' fees, disbursements and expenses, as incurred), incurred by such Losses arise party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or are based upon any Misstatement untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission or a material fact required to be stated in any Registration Statement under which the sale of such Registrable Securities was Registered under the 1933 Act, any preliminary Prospectus, final Prospectus or summary Prospectus contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement theretoto any of the foregoing or necessary to make the statements therein (in case of Prospectus or preliminary Prospectus, if in the Misstatement was light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance upon on and in conformity with information with respect to such Stockholder furnished in writing to the Company by such Selling Stockholder expressly or its counsel specifically for use thereininclusion therein or preparation thereby; provided, and shall reimburse however, that the Company, its directors and officers, and each other Selling liability of such Stockholder for any reasonable, customary and documented out-of-pocket legal or other expenses incurred by any of them in connection with investigation or defending any such Loss. Each Selling Stockholder’s indemnification obligations hereunder shall be several and not joint and shall be proportional to and limited to the amount proportion of any net such loss, claim, damage, liability or expense that is equal to the proportion that the gross proceeds (after payment from the sale of shares sold by such Stockholder under such registration statement bears to the total gross proceeds from the sale of all securities sold thereunder, but not in any underwriting fees, discounts, commissions or taxes) actually event to exceed the gross proceeds received by such Selling Stockholder in connection with from the sale of Registrable Securities under a covered by such Registration Statement from which Statement, unless such Losses arise, except in the case liability arises out of fraud or is based on willful misconduct by of such Selling Stockholder.

Indemnification by Stockholders. Each Selling Stockholder willSubject to consummation of the Closing and the further provisions of this Section 10.1, Stockholders hereby severally (in proportion to their share ownership in MJA)agree to indemnify and hold Westower, its subsidiaries, parents, affiliates, officers, directors, agents and employees (collectively, the "Westower Indemnified Parties") harmless from and against and with respect to any Damages to any Westower Indemnified Parties as hereinafter defined, provided that: (a) the Stockholders have received notice from Westower of a claim for indemnification under this Section with respect to the matters covered by Section 3.7 prior to the expiration of the applicable statute of limitations with respect to such matters, and (b) the Stockholders have received notice from Westower of a claim for indemnification under Section 10.2 with respect to all other matters within one (1) year from the Closing Date. The term "Damages," as used herein, shall include any claim, action, loss, cost, expense, liability, penalty or interest or damage, including, -45- without limitation, reasonable counsel fees, and all reasonable costs and expenses of all actions, suits, proceedings, demands, assessments, claims and judgments resulting from, occurring in connection with, or arising out of any breach of any representation, warranty or covenant by any of the Stockholders made in the event Agreement or in any of the Stockholders' Closing Documents. Notwithstanding anything to the contrary set forth in this Article X, indemnification of the Westower Indemnified Parties by the Stockholders shall in excess of the aggregate for any amounts in excess Ten Million U.S. Dollars ($10,000,000) plus attorneys' fees and other cost included in Damages. Notwithstanding anything to the contrary set forth in this Agreement, with respect to claims for indemnification pursuant to this Section 10.1, Westower Indemnified Parties will not be entitled to any indemnification, defense or holding harmless, from the Stockholders, and the Stockholders will not be required to indemnify, defend or hold harmless any of the Westower Indemnified Parties, for any Damages unless and until, and only to the extent that, such claims exceed Two Hundred Fifty Thousand U.S. Dollars ($250,000) in the aggregate, at which time the Stockholders shall be liable for all such Damages including the first $250,000. The representations and warranties of the Stockholders and MJA herein contained shall survive the Closing (y) with respect to matters covered by Section 3.7 of this Agreement, solely for the period ending on the expiration of the applicable statutes or limitations, and (z) with respect to all other representations and warranties contained in Article III and IV of this Agreement, solely for a period of one (1) year from the Closing Date. The rights of the Westower Indemnified Parties under this Article X shall be their exclusive remedy with respect to any claim for Damages; provided, however, that the foregoing clause of this sentence shall not be deemed a waiver by any Registration is being effected under the 1933 Act pursuant party to this Agreement of any Registrable Securities held by such Stockholder and the Company has required all Selling Stockholders to provide such an undertaking on the same terms, indemnify and hold harmless the Company, each of its directors and officers, legal counsel, accountants and each Underwriter (if any), and each other Selling Stockholder and each other person, if any, who controls another Selling Stockholder rights or such underwriter within the meaning of the 1933 Act, against any Losses, insofar as such Losses arise out of or are based upon any Misstatement contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the 1933 Act, any preliminary Prospectus, final Prospectus or summary Prospectus contained in the Registration Statement, or any amendment or supplement thereto, if the Misstatement was made in reliance upon and in conformity with information furnished in writing to the Company remedies arising by such Selling Stockholder expressly for use therein, and shall reimburse the Company, its directors and officers, and each other Selling Stockholder for any reasonable, customary and documented out-of-pocket legal or other expenses incurred by any of them in connection with investigation or defending any such Loss. Each Selling Stockholder’s indemnification obligations hereunder shall be several and not joint and shall be proportional to and limited to the amount reason of any net proceeds (after payment claim of any underwriting fees, discounts, commissions or taxes) actually received by such Selling Stockholder in connection with the sale of Registrable Securities under a Registration Statement from which such Losses arise, except in the case of fraud or willful misconduct by such Selling Stockholderfraud.

Indemnification by Stockholders. Each Selling Stockholder willStockholder, in the event that any Registration is being effected under the 1933 Act pursuant to this Agreement of any if Registrable Securities held by such Stockholder it are included in the securities as to which a registration is being effected, agrees to, severally and the Company has required all Selling Stockholders to provide such an undertaking on the same termsnot jointly, indemnify and hold harmless harmless, to the fullest extent permitted by law, the Company, each of its directors and officers, legal counselthe Trust, accountants and its trustees, each other Person who participates as an Underwriter in the offering or sale of such securities, each Person who controls the Company, the Trust or any such Underwriter (if any), and each other Selling Stockholder and each other person, if any, who controls another Selling Stockholder or such underwriter within the meaning of the 1933 Securities Act, ) and any other Person selling securities (including Registrable Securities) in such Registration Statement against any Lossesand all Claims, insofar as such Losses Claims arise out of or are based upon any Misstatement untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the 1933 Act, or Prospectus (including any preliminary Prospectuspreliminary, final Prospectus or summary Prospectus contained in the Registration Statement, or prospectus and any amendment or supplement thereto) related to such registration, if or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the Misstatement statements therein not misleading, to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished in writing to the Company and the Trust by such Selling the Stockholder expressly or its representative for use therein; provided, and shall reimburse however, that the Company, its directors and officers, and each other Selling Stockholder for any reasonable, customary and documented out-of-pocket legal or other expenses incurred by any of them in connection with investigation or defending aggregate amount which any such Loss. Each Selling Stockholder’s indemnification obligations hereunder Stockholder shall be several and not joint and required to pay pursuant to this Section 5.2 shall in no event be proportional to and limited to greater than the amount of any the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such Selling Stockholder in connection with upon the sale of the Registrable Securities under a pursuant to the Registration Statement from which giving rise to such Losses arise, except in the case of fraud or willful misconduct Claims less all amounts previously paid by such Selling StockholderStockholder with respect to any such Claims. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such Stockholder or Underwriter.

Indemnification by Stockholders. Each Selling Stockholder willIf Genmar Common Stock is registered pursuant to Section 2.6 hereof, each stockholder of the Company will severally, in accordance with each such shareholder's pro rata ownership interest in the event that any Registration is being effected under the 1933 Act Genmar Common Stock which was registered pursuant to this Agreement of any Registrable Securities held by such Stockholder and the Company has required all Selling Stockholders to provide such an undertaking on the same termsregistration statement(s) set forth in Section 2.6 above, indemnify and hold harmless the CompanyGenmar, each officer of its directors and officers, legal counsel, accountants Genmar who signs a registration statement filed pursuant to Section 2.6 and each Underwriter (if any)director of Genmar, and each other Selling Stockholder and each other personagainst all losses, if anyclaims, who controls another Selling Stockholder damages or liabilities to which Genmar or such underwriter within the meaning of the 1933 Act, against any Losses, insofar as such Losses arise officer or director may become subject arising out of or are based upon any Misstatement contained in untrue statement of any Registration Statement under which the sale of such Registrable Securities was Registered under the 1933 Act, any preliminary Prospectus, final Prospectus or summary Prospectus material fact contained in the Registration Statementregistration statement, any final prospectus contained therein or any amendment or supplement theretothereof, if or arising out of the Misstatement omission to state therein the material fact required to be stated therein or necessary therein not misleading; PROVIDED, HOWEVER, that the stockholders of the Company shall have such obligation to indemnify only in each case to the extent that such untrue statement or omission was made by Genmar in reliance upon upon, and in strict conformity with with, accurately described written information furnished by the stockholders of the Company specifically for use in writing preparation of the registration statement. The stockholders of the Company shall have the right to review and approve, through their counsel, any such registration statement, or part thereof, which describes the stockholders of the Company, the transactions contemplated by this Agreement or the Company and its operations within three (3) business days prior to its submission to the SEC. Notwithstanding the foregoing provisions of this Section 2.7, the stockholders of the Company shall have no liability or other indemnification obligation with respect to any financial projections or other such forward looking information disclosed in the registration statement by Genmar, whether or not such information pertains to the Company or was provided or prepared by such Selling Stockholder expressly for use therein, and shall reimburse the stockholders of the Company, its directors and officers, and each other Selling Stockholder for any reasonable, customary and documented out-of-pocket legal or other expenses incurred by any of them in connection with investigation or defending any such Loss. Each Selling Stockholder’s indemnification obligations hereunder shall be several and not joint and shall be proportional to and limited to the amount of any net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such Selling Stockholder in connection with the sale of Registrable Securities under a Registration Statement from which such Losses arise, except in the case of fraud or willful misconduct by such Selling Stockholder.

Indemnification by Stockholders. Each Selling Stockholder willTo the extent permitted by law, in the event that any Registration is being effected under the 1933 Act pursuant to this Agreement of any Registrable Securities held by such Stockholder each Stockholder, severally and the Company has required all Selling Stockholders to provide such an undertaking on the same termsnot jointly, will indemnify and hold harmless the Company, each of its directors successors and officersassigns, legal counselits officers and directors, accountants and each Underwriter any underwriter (if any)as defined in the ▇▇▇▇ ▇▇▇) with respect to the Registrable Shares, and each other Selling Stockholder and each other person, if any, who controls another Selling Stockholder the Company or any such underwriter within the meaning of the 1933 Act or the 1934 Act, against any Losseslosses, insofar as such Losses arise out of claims, damages, liabilities or are based upon any Misstatement contained in any Registration Statement under actions (joint or several) to which the sale of such Registrable Securities was Registered they may become subject under the 1933 Act, the 1934 Act or other federal or state law, arising out of or based upon (i) any preliminary Prospectus, final Prospectus untrue statement or summary Prospectus alleged untrue statement of a material fact contained in the Registration Statement, including any preliminary prospectus or final prospectus contained therein or any amendment amendments or supplement supplements thereto, if or arising out of or based upon the Misstatement omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the context in which made, not misleading; provided that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished in writing to the Company by such Selling Stockholder expressly for use thereinin such registration by such Stockholder, and shall or (ii) the failure of a Stockholder with respect to the Registrable Shares held by such Stockholders at or prior to the written confirmation of the sale of the Registrable Shares held by such Stockholder to send or arrange delivery of a copy of a prospectus (or the prospectus as amended or supplemented) timely provided to the Stockholders by the Company to the person asserting any such loss, claim, damage, liability or action who purchased the Registrable Shares that are the subject thereof. Such Stockholders will reimburse the Company, its directors and officers, Company and each other Selling Stockholder such successor, assign, officer, director, underwriter or controlling person for any reasonable, customary and documented out-of-pocket legal or other expenses reasonably incurred by any of them in connection with investigation investigating or defending any such Lossloss, claim, damage, liability, or action. Each Selling Stockholder’s indemnification obligations hereunder Such indemnity shall be several remain in full force and not joint effect regardless of any investigation made by or on behalf of the Company or any such successor, assign, officer, director, underwriter or controlling person and shall be proportional to and limited to survive the amount transfer of any net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received the Registrable Shares by such Selling Stockholder in connection with the sale of Registrable Securities under a Registration Statement from which such Losses arise, except in the case of fraud or willful misconduct by such Selling Stockholder.

Indemnification by Stockholders. Each Selling Stockholder will(a) Subject to the terms and conditions contained herein, in the event that any Registration is being effected under the 1933 Act pursuant to this Agreement Finisar, its officers, directors, employees and attorneys, all Subsidiaries and Affiliates of any Registrable Securities held by such Stockholder Finisar, and the Company has required all Selling Stockholders to provide such an undertaking on the same terms, indemnify and hold harmless the Company, each of its directors and respective officers, directors, employees and attorneys of such entities (all such persons and entities being collectively referred to as the "Finisar Group") shall be entitled to recover from the Escrow any and all losses, damages, costs and expenses (including reasonable legal counsel, accountants fees and each Underwriter (if any), and each other Selling Stockholder and each other person, if any, who controls another Selling Stockholder or such underwriter within the meaning expenses) which any member of the 1933 Act, against any Losses, insofar as such Losses Finisar Group may sustain or incur which are caused by or arise out of (i) any inaccuracy in or are based upon breach of any Misstatement contained of the representations, warranties or covenants made by Demeter in this Agreement, including the Demeter Disclosure Schedule, (ii) any Demeter Transaction Expenses in excess of the amount set forth on the Closing Demeter Transaction Expense Schedule and reflected in the calculation of the applicable Exchange Ratio, or (iii) any breach of this Article IX or the Escrow Agreement (collectively, "Finisar Losses"). (b) No member of the Finisar Group shall be entitled to recover any Finisar Losses until the aggregate amount of all Finisar Losses under all claims shall exceed $150,000 (the "Deductible Amount"); provided, however, that Finisar Losses under Section 9.2(a)(ii) shall be recoverable in full without regard to the Deductible Amount. (c) The right of a member of the Finisar Group to recover a Finisar Loss under this Article IX is subject to the condition that the Stockholders' Representative (as defined in Section 9.6) shall have received written notice of an Indemnification Claim (as defined in Section 9.3) for such Finisar Loss on or before the Termination Date. (d) The provisions of Section 9.2(b) above and 9.5 below shall not limit, in any Registration Statement under which the sale of such Registrable Securities was Registered under the 1933 Actmanner, any preliminary Prospectus, final Prospectus remedy at law or summary Prospectus contained in equity to which any member of the Registration Statement, Finisar Group shall be entitled against Demeter or any amendment stockholder of Demeter as a result of willful fraud or supplement theretointentional misrepresentation by Demeter, if the Misstatement was made in reliance upon and in conformity with information furnished in writing any stockholder of Demeter or any of their respective representatives. (e) The amount of Finisar Losses shall be computed after giving effect to the Company by such Selling Stockholder expressly for use therein, and shall reimburse the Company, its directors and officers, and each other Selling Stockholder for any reasonable, customary and documented out-of-pocket legal or other expenses incurred by any of them in connection with investigation or defending any such Loss. Each Selling Stockholder’s indemnification obligations hereunder shall be several and not joint and shall be proportional to and limited to the amount receipt of any net insurance proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such Selling Stockholder in connection and tax benefits with the sale of Registrable Securities under a Registration Statement from which such Losses arise, except in the case of fraud or willful misconduct by such Selling Stockholderrespect thereto.

Indemnification by Stockholders. Each Selling In connection with any registration ------------------------------- statement in which a Stockholder willis participating, each such Stockholder will furnish to PHC in writing such information with respect to the event that any Registration is being effected under name and address of such Stockholder, the 1933 Act pursuant to this Agreement amount of any Registrable Securities PHC securities held by such Stockholder and the Company has nature of such holdings, and such other information as is required all Selling Stockholders by PHC for use in connection with any such registration statement or prospectus. Each such participating Stockholder severally agrees to provide such an undertaking on the same terms, indemnify and hold harmless the CompanyPHC, each of its directors and directors, officers, legal counselagents, accountants employees, representatives and each Underwriter (if any), and each other Selling Stockholder and each other person, if any, person or entity who controls another Selling Stockholder or such underwriter PHC (within the meaning of the 1933 Securities Act) and any other Stockholder selling securities in such registration statement or any of its directors, officers, partners, agents or employees or any person who controls such Stockholder or underwriter, against any Losseslosses, insofar as such Losses arise claims, damages or liabilities (joint or several) and expenses (including reasonable costs of investigation) arising out of or are based upon any Misstatement untrue statement of material fact contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the 1933 Actregistration statement, any preliminary Prospectus, final Prospectus or summary Prospectus contained in the Registration Statement, or any amendment or supplement thereto, if any prospectus or preliminary prospectus or any omission to state therein a material fact required to be stated therein or necessary to make the Misstatement was made statements therein not misleading, to the extent, but only to the extent, that such untrue statement or omission is contained in reliance upon and in conformity any information with information respect to such holder so furnished in writing to the Company by such Selling Stockholder expressly holder specifically for inclusion in or for use therein, and in the preparation of any prospectus or registration statement. In no event shall reimburse the Company, its directors and officers, and each other Selling Stockholder for liability of any reasonable, customary and documented out-of-pocket legal or other expenses incurred by any selling holder of them Registrable Common hereunder be greater in connection with investigation or defending any such Loss. Each Selling Stockholder’s indemnification obligations hereunder shall be several and not joint and shall be proportional to and limited to amount than the dollar amount of any the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such Selling Stockholder in connection with holder upon the sale of the Registrable Securities under a Registration Statement from Common giving rise to such indemnification obligation. A Stockholder shall not be liable to PHC in any such case in which such Losses ariseuntrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus, except and PHC failed to deliver a copy of the final or amended prospectus at or prior to the confirmation of the sale of the securities to the person asserting any such loss, claim, damage or liability in any case where such delivery is required by the case of fraud or willful misconduct by such Selling StockholderSecurities Act.

Indemnification by Stockholders. Each Selling Stockholder willa. The Stockholders shall jointly and severally indemnify, in the event that any Registration is being effected under the 1933 Act pursuant to this Agreement of any Registrable Securities held by such Stockholder and the Company has required all Selling Stockholders to provide such an undertaking on the same terms, indemnify defend and hold harmless the CompanyBuyer, each of its directors promptly upon demand at any time and officers, legal counsel, accountants and each Underwriter (if any), and each other Selling Stockholder and each other person, if any, who controls another Selling Stockholder or such underwriter within the meaning of the 1933 Actfrom time to time, against any and all losses, liabilities, claims, actions, damages and expenses, including without limitation reasonable attorneys' fees and disbursements (collectively, "Losses"), insofar as such Losses arise arising out of or are based upon any Misstatement contained in any Registration Statement under which the sale of such Registrable Securities was Registered under the 1933 Act, any preliminary Prospectus, final Prospectus or summary Prospectus contained in the Registration Statement, or any amendment or supplement thereto, if the Misstatement was made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder expressly for use therein, and shall reimburse the Company, its directors and officers, and each other Selling Stockholder for any reasonable, customary and documented out-of-pocket legal or other expenses incurred by any of them in connection with investigation any of the following: (a) any misrepresentation or defending breach of any warranty contained herein made by Health Watch and/or any Stockholder; (b) any breach or nonfulfillment of any covenant or agreement contained herein made by Health Watch and/or any Stockholder; (c) the claims of any broker or finder engaged by Health Watch and/or any Stockholder; and (d) without in any manner limiting the foregoing, any liabilities or obligations (other than the Excluded Liabilities as disclosed to Buyer on the Closing Date) of, or claims or causes of action against Health Watch which arise with respect to or relate to any period or periods on or prior to the Closing Date (excluding obligations and liabilities incurred in the ordinary course of business in a manner consistent with past practices, and otherwise consistent with the representations, warranties and terms of this Agreement) if such Lossliabilities, obligations, claims or causes of action were not disclosed to Buyer as required under this Agreement on the Schedules or Exhibits hereto. Each Selling Stockholder’s Nothing in this section requires indemnification obligations hereunder for consequential, special or incidental damages, even if advised of the possibility of the same. b. Notwithstanding the foregoing, no indemnification shall be several and not joint and payable to Buyer if such claims arise solely from a failure by Health Watch to pay sales taxes for periods prior to the Closing Date unless the liability arising out of such claims shall be proportional to and limited to exceed $100,000 (the "Basket") in the aggregate, whereupon the amount of any net proceeds (after payment such claims in excess of any underwriting fees, discounts, commissions or taxes) actually received by such Selling Stockholder the Basket shall be recoverable in connection accordance with the sale of Registrable Securities terms hereof. The Basket shall not be applicable to any other amounts recoverable under a Registration Statement from which such Losses arise, except in the case of fraud or willful misconduct by such Selling StockholderSection 7.1.