Common use of Indemnification by Stockholders Clause in Contracts

Indemnification by Stockholders. Subject to the other terms and conditions of this ARTICLE 10 and the terms and conditions set forth in ARTICLE 13, each Stockholder, severally and not jointly (pro rata in accordance with the portion of the Merger Consideration received by each Stockholder), shall indemnify, defend, reimburse and hold harmless Parent, the Surviving Corporation, their respective Affiliates, successors and assigns and the respective officers, directors, employees, attorneys, agents and stockholders of the foregoing (the “Parent Indemnified Parties”) from and against any and all Losses incurred or sustained by, or imposed upon, such Parent Indemnified Party based upon, arising out of, with respect to, relating to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company in ARTICLE 3; (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Stockholders pursuant to this Agreement; (c) any Company Transaction Expenses or Indebtedness outstanding as of the Closing to the extent not paid or satisfied by the Company or Stockholders at or prior to the Closing; (d) any Taxes for the Pre-Closing Tax Period (including the pre-Closing portion of any Straddle Period) to the extent not included in the computation of Company Transaction Expenses or Closing Net Working Capital (collectively, “Pre-Closing Taxes”), to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or (e) any of the matters set forth on Section 10.1(e) of the Parent Disclosure Schedule. Any claims arising out of clauses (b), (c), (d), or (e) of this Section 10.1 are referred to herein as “Excluded Claims.”

Indemnification by Stockholders. Subject to the other terms and conditions of this ARTICLE 10 ------------------------------- Article 10, Seller and the terms and conditions set forth in ARTICLE 13Stockholders (but after the consummation of the Merger, each Stockholdersolely the Stockholders, severally and not jointly (pro rata in accordance with the portion of the Merger Consideration received by each Stockholder)Seller) shall, shall severally, but not jointly, indemnify, defend, reimburse save and hold harmless Parent, Merger Sub, Seller (after the Surviving Corporation, consummation of the Merger) and their respective Affiliates, successors and assigns and (collectively, the respective officers, directors, employees, attorneys, agents and stockholders of the foregoing (the “"Parent Indemnified Parties”) "), from and against any demands, claims (as defined in Section 101 of the U.S. Bankruptcy Code), actions, losses, damages, deficiencies, liabilities, costs and all Losses incurred expenses (including, without limitation, reasonable attorneys' and accountants' fees and expenses), together with interest and penalties, if any, awarded by court order or sustained byotherwise agreed to (collectively, or imposed upon"Indemnifiable Damages"), such suffered by the Parent Indemnified Party based upon, arising Parties that arise out of, with respect to, relating of or result from any of the following (whether or not a third party initiates the proceeding or claim giving rise to or by reason of:such Indemnifiable Damages): (a) any inaccuracy in or breach of any of the representations representations, warranties, covenants or warranties of agreements made by Seller or the Company Stockholders in ARTICLE 3this Agreement; (b) any breach or non-fulfillment of any covenantrepresentation, warranty, covenant or agreement made by Seller or obligation to be performed any Stockholder in a document, certificate or affidavit delivered by Seller or the Stockholders pursuant to this Agreement;at the Closing; or (c) any Company Transaction Expenses expenses, charges, fees, or Indebtedness outstanding as costs associated with any audit of the Closing Seller for Taxes related to the extent not paid or satisfied by the Company or Stockholders at or periods prior to the Closing; (d) Closing Date, and any Taxes for the Pre-Closing Tax Period (including the pre-Closing portion imposed as a result of any Straddle Period) such audit, even though any such audit commences, or a party does not become aware of any such audit until, after the Closing Date. Any of the foregoing to the extent contrary notwithstanding, the Stockholders' indemnification obligations in connection with the breach of any provision of Article 5 shall be several and not included in the computation of Company Transaction Expenses or Closing Net Working Capital (collectively, “Pre-Closing Taxes”), to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or (e) any of the matters set forth on Section 10.1(e) of the Parent Disclosure Schedule. Any claims arising out of clauses (b), (c), (d), or (e) of this Section 10.1 are referred to herein as “Excluded Claimsjoint.”

Indemnification by Stockholders. Subject to the other terms and conditions provisions of this ARTICLE 10 and the terms and conditions set forth in ARTICLE 13Article 8, each Stockholder, severally and not jointly (pro rata in accordance with the portion of the Merger Consideration received by each Stockholder), shall indemnify, defend, reimburse and hold harmless Parent, the Surviving Corporation, their respective Affiliates, successors and assigns and the respective officers, directors, employees, attorneys, agents and stockholders of the foregoing (the “Parent Indemnified Parties”) from and against any and all Losses incurred or sustained by, or imposed upon, such Parent Indemnified Party based upon, arising out of, with respect to, relating to or by reason ofafter the Closing: (a) the Stockholders (jointly and severally solely to the extent of the Indemnification Escrow Funds) shall indemnify, protect and defend Purchaser and its Affiliates (including the Surviving Corporation and the Company Subsidiaries) and each of their respective successors and assigns, as the case may be (the “Purchaser Indemnitees”) and hold each of them harmless against any inaccuracy Losses incurred, suffered or paid, directly or indirectly, by them as a result of, in connection with, or arising out of: (i) any breach of any of the representations representation or warranties of warranty made by the Company contained in ARTICLE 3Article 3 (other than the Company Fundamental Representations), (ii) any breach, non-compliance or non-performance by the Company of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Effective Time, and (iii) any breach, non-compliance or non-performance by the Equityholders’ Representative of any of its covenants or agreements contained in this Agreement; (b) each Stockholder (jointly and severally solely to the extent of Indemnification Escrow Funds and, once there are no remaining Indemnification Escrow Funds, severally and not jointly) shall indemnify, protect and defend the Purchaser Indemnitees and hold them harmless against any Losses incurred by them as a result of any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Stockholders pursuant to this Agreement;the Company Fundamental Representations; and (c) each Stockholder (severally and not jointly) shall indemnify, protect and defend the Purchaser Indemnitees and hold each of them harmless against any Company Transaction Expenses or Indebtedness outstanding Losses incurred by them as a result of the Closing to the extent not paid or satisfied by the Company or Stockholders at or prior to the Closing; (d) any Taxes for the Pre-Closing Tax Period (including the pre-Closing portion breach of any Straddle Period) to the extent not included representation or warranty made by such Stockholder in the computation of Company Transaction Expenses or Closing Net Working Capital (collectively, “Pre-Closing Taxes”), to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or (e) any of the matters set forth on Section 10.1(e) of the Parent Disclosure Schedule. Any claims arising out of clauses (b), (c), (d), or (e) of this Section 10.1 are referred to herein as “Excluded ClaimsArticle 3.”

Indemnification by Stockholders. Subject Each Stockholder (the "Stockholder Indemnitor") hereby agrees to the other terms and conditions of this ARTICLE 10 and the terms and conditions set forth in ARTICLE 13defend, each Stockholder, severally and not jointly (pro rata in accordance with the portion of the Merger Consideration received by each Stockholder), shall indemnify, defend, reimburse and hold harmless Parentthe Company and all other Stockholders, the Surviving Corporation, and their respective officers, directors, agents, representatives, Affiliates, successors and assigns and (collectively, the respective officers"Indemnitees"), directors, employees, attorneys, agents and stockholders of the foregoing (the “Parent Indemnified Parties”) harmless from and against any and all Losses incurred or sustained byclaim, liability, obligation, expense, loss, or other damage (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Claims") asserted against, imposed upon, such Parent Indemnified Party based upon, arising out of, with or incurred by any of them in respect to, relating to or by reason of: (aA) Any and all Claims resulting from any inaccuracy in misrepresentation or breach of warranty or violation of any covenant made by such Stockholder Indemnitor hereunder, or in any certificate or agreement furnished or to be furnished by the Stockholder Indemnitor or any Stockholder Owner or Affiliate with respect to such Stockholder Indemnitor hereunder (including, without limitation, any Non-Referral Agreement). It is hereby expressly understood and agreed that for the purposes of the representations or warranties foregoing indemnification, the term Claim shall include - 6 - the full amount of the Purchase Price paid by the Company, and all other costs and expenses whatsoever which the Company incurs, in ARTICLE 3connection with the Company's purchase of any Shares pursuant to Section 3.3 above; (bB) Any and all Claims arising from or in connection with any breach act, omission, or non-fulfillment status of any covenant, agreement or obligation to be performed by Stockholders pursuant to this Agreement;the Stockholder Indemnitor creating liability for violations of ▇▇▇▇▇ II; and (cC) Any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, and expenses incident to any Company Transaction Expenses or Indebtedness outstanding as of item to which the Closing to the extent not paid or satisfied by the Company or Stockholders at or prior to the Closing; (d) any Taxes for the Pre-Closing Tax Period (including the pre-Closing portion of any Straddle Period) to the extent not included in the computation of Company Transaction Expenses or Closing Net Working Capital (collectively, “Pre-Closing Taxes”), to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or (e) any of the matters set forth on Section 10.1(e) of the Parent Disclosure Schedule. Any claims arising out of clauses (b), (c), (d), or (e) of this Section 10.1 are referred to herein as “Excluded Claimsforegoing indemnity relates.”

Indemnification by Stockholders. Subject to the other terms and conditions of this ARTICLE 10 and the terms and conditions set forth in ARTICLE 13Each Stockholder shall ------------------------------- severally, each Stockholderbut not jointly, severally and not jointly (pro rata in accordance with the portion of the Merger Consideration received by each Stockholder), shall indemnify, defend, reimburse indemnify and hold harmless ParentAcquiror, and each of its subsidiaries (including, after the Effective Date, the Surviving CorporationCompany), their respective Affiliatesaffiliates, stockholders, officers, directors, agents, employees, successors and assigns (collectively, "Acquiror Indemnitees"), from any liability, obligations, fines, penalties, losses, settlements, damages, claims, awards and the respective officersjudgments, directorscosts and expenses (including reasonable attorneys' fees) (collectively, employees"Losses"), attorneys, agents and stockholders suffered or incurred by any of the foregoing (the “Parent Indemnified Parties”) from and against any and all Losses incurred or sustained bythem for, or imposed upon, such Parent Indemnified Party arising out of or based upon, arising out of, with respect to, or relating to or by reason ofany of the following: (a) any inaccuracy in or breach of any Any and all Specified Litigation Losses incurred by the Acquiror Indemnitees after the Effective Date, but only to the extent that the aggregate amount of the representations Specified Litigation Losses suffered or warranties of incurred by the Company in ARTICLE 3Acquiror Indemnitees after the Effective Date exceeds the Specified Litigation Deductible; (b) any breach Any and all Lien Losses suffered or non-fulfillment of any covenant, agreement or obligation to be performed incurred by Stockholders pursuant to this Agreement;the Acquiror Indemnitees; and (c) Any breach of any Company Transaction Expenses representation, warranty, agreement or Indebtedness outstanding as covenant of the Closing to the extent not paid or satisfied by the Company or Stockholders at such Stockholder contained in this Agreement or prior to the Closing; (d) any Taxes schedules hereto and for the Pre-Closing Tax Period (including the pre-Closing portion of any Straddle Period) to the extent not included in the computation of Company Transaction Expenses or Closing Net Working Capital (collectively, “Pre-Closing Taxes”), to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or (e) any of the matters set forth on Section 10.1(e) of the Parent Disclosure Schedule. Any claims arising out of clauses (b), (c), (d), or (e) purposes of this Section 10.1 are referred 9.02, any qualification of such representations and warranties by reference to herein the materiality of matters stated therein or as “Excluded Claimsto matters having or not having a "Material Adverse Effect," (other than the representations and warranties set forth in Sections 3.16(i) and 3.17) shall be disregarded, in determining any inaccuracy, untruth, incompleteness or breach thereof.”

Indemnification by Stockholders. Subject to Sections 8.7 and 8.8, prior to the other terms Effective Time, the Company, and conditions of this ARTICLE 10 after the Effective Time, the Company Stockholders jointly and severally but only to the terms and conditions set forth in ARTICLE 13, each Stockholder, severally and not jointly (pro rata in accordance with the portion extent of the Merger Consideration received by each Stockholder)Escrow Fund, shall indemnify, defend, reimburse defend and hold harmless ParentAcquiror (and, after the Closing, the Surviving Corporation) from, their respective Affiliatesagainst, successors and assigns and the respective officers, directors, employees, attorneys, agents and stockholders of the foregoing (the “Parent Indemnified Parties”) from and against with respect to any and all Losses actions or causes of action, losses, damages (including without limitation all foreseeable and unforeseeable consequential damages), claims, obligations, liabilities, penalties, fines, costs and expenses (including without limitation reasonable attorneys' and consultants' fees and costs and expenses incurred in investigating, preparing, defending against or sustained byprosecuting any litigation, claim, proceeding, demand or imposed uponrequest for action by any governmental or administrative entity), such Parent Indemnified Party based upon, of any kind or character (a "Loss") arising out of, of or in connection with respect to, relating to or by reason of: any of the following: (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in ARTICLE 3; or made pursuant to this Agreement; or (b) any breach failure by the Company to perform or non-fulfillment of observe, or to have performed or observed, in full, any covenant, covenant or agreement or obligation to be performed or observed by Stockholders the Company pursuant to this Agreement; ; (c) any Company Transaction Expenses or Indebtedness outstanding as of the Closing an amount equal to the extent not paid or satisfied excess of (i) the aggregate appraised value of any Dissenting Stock over (ii)(A) the Average Price multiplied by (B) the Company or Stockholders at or prior number of shares of Acquiror Common Stock that would have been issuable to the Closing; holders of such Dissenting Stock pursuant to Section 1.5(a); or (d) any Taxes for the Pre-Closing Tax Period (including the pre-Closing portion of any Straddle Period) to the extent not included other matter contained in the computation of Escrow Agreement with respect to which the Company Transaction Expenses or Closing Net Working Capital (collectively, “Pre-Closing Taxes”), Stockholders have agreed to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or (e) any of the matters set forth on Section 10.1(e) of the Parent Disclosure Schedule. Any claims arising out of clauses (b), (c), (d), or (e) of this Section 10.1 are referred to herein as “Excluded Claimsindemnify Acquiror.”

Indemnification by Stockholders. Subject to (a) From and after the other terms Closing Date, the Stockholders, jointly and conditions of this ARTICLE 10 severally, shall hold harmless and the terms and conditions set forth in ARTICLE 13, indemnify each Stockholder, severally and not jointly (pro rata in accordance with the portion of the Merger Consideration received by Indemnitees from and against, and shall compensate and reimburse each Stockholder), shall indemnify, defend, reimburse and hold harmless Parent, the Surviving Corporation, their respective Affiliates, successors and assigns and the respective officers, directors, employees, attorneys, agents and stockholders of the foregoing Indemnitees for, any Damages that are directly or indirectly suffered or incurred by any of the Indemnitees or to which any of the Indemnitees may otherwise become subject (the “Parent Indemnified Parties”regardless of whether or not such Damages relate to any third-party claim) and that arise from and against any and all Losses incurred or sustained byas a result of, or imposed upon, such Parent Indemnified Party based upon, arising out of, with respect to, relating to are directly or by reason of: indirectly connected with: (ai) any inaccuracy in or breach of any representation or warranty set forth in Section 2 (without giving effect to any "Material Adverse Effect" or other materiality qualification or any similar qualification contained or incorporated directly or indirectly in such representation or warranty, and without giving effect to any update to the Disclosure Schedule delivered prior to the Closing,); (ii) any inaccuracy in or breach of any representation or warranty set forth in Section 2 as if such representation and warranty had been made on and as of the representations Closing Date (without giving effect to any "Material Adverse Effect" or warranties of other materiality qualification or any similar qualification contained or incorporated directly or indirectly in such representation or warranty, but giving effect to any update to the Disclosure Schedule delivered by the Company in ARTICLE 3; (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Stockholders pursuant Parent prior to this Agreement; (c) any Company Transaction Expenses or Indebtedness outstanding as of the Closing to the extent not paid that the Company and the Designated Stockholders acknowledge in writing that Parent would be entitled to terminate this Agreement as a result of such update); (iii) any breach of any covenant or satisfied obligation of any of the Acquired Corporations or any of the Designated Stockholders (including the covenants set forth in Sections 4 and 5); (iv) other than pursuant to the letter agreement dated December 20, 1999 between Prudential, Chase H&Q, ▇▇▇▇▇▇▇ & Co. and the Company, any brokerage, finder's or other fee, commission or expense payable or claimed to be payable to any broker, finder or other similar Person, including Prudential, Chase H&Q and ▇▇▇▇▇▇▇ & Co., by the Company or Stockholders at any Stockholder in connection with the transactions contemplated by this Agreement or prior (v) any Legal Proceeding relating to any inaccuracy or breach of the Closing;type referred to in clause "(i)," "(ii)," "(iii)" or " (div) above (including any Taxes Legal Proceeding commenced by any Indemnitee for the Pre-Closing Tax Period (including the pre-Closing portion purpose of any Straddle Period) to the extent not included in the computation of Company Transaction Expenses or Closing Net Working Capital (collectively, “Pre-Closing Taxes”), to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or (e) enforcing any of the matters set forth on Section 10.1(e) of the Parent Disclosure Schedule. Any claims arising out of clauses (b), (c), (d), or (e) of its rights under this Section 10.1 are referred to herein as “Excluded Claims9).”

Indemnification by Stockholders. Subject to the other terms and conditions provisions of this ARTICLE 10 9, from and after the terms and conditions set forth in ARTICLE 13, each Stockholder, severally and not jointly (pro rata in accordance with the portion of the Merger Consideration received by each Stockholder), shall indemnify, defend, reimburse and hold harmless ParentClosing, the Surviving Corporation, their respective Affiliates, successors and assigns and the respective officers, directors, employees, attorneys, agents and stockholders of the foregoing Stockholders (the “Parent Stockholders Indemnifying Party”), jointly and severally, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against any against, and all Losses reimburse and pay each of them as actually incurred or sustained by, or imposed upon, such Parent Indemnified Party based upon, arising out of, with respect to, relating any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to or by reason the extent of a Third Party Claim arising out of: : (ai) any inaccuracy in or breach of any of the representations or warranties of the Company in ARTICLE 3; (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Stockholders pursuant to this Agreement; (c) any Company Transaction Expenses or Indebtedness outstanding as of the Closing to the extent not paid or satisfied by the Company or Stockholders at an Stockholder; and (ii) any breach by the Company or an Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing; Closing Date (d“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) any Taxes for or (iii) above) unless the Pre-Closing Tax Period aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (including the pre-Closing portion of any Straddle Period) to the extent not included in the computation of Company Transaction Expenses or Closing Net Working Capital (collectively, “Pre-Closing TaxesBasket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or (e) any of the matters limitations set forth on in Section 10.1(e) of the Parent Disclosure Schedule. Any claims arising out of clauses (b), (c), (d), or (e) of this Section 10.1 are referred to herein as “Excluded Claims9.3 hereof.”