Indemnification of the Purchaser Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls each Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against each Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct), or (c) in connection with the Registration Statement the Company will indemnify each Purchaser Party, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses, as incurred, arising out of or relating to (i) any untrue or alleged untrue statement of a material fact contained in such registration statement, any prospectus or any 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 supplement thereto, in the light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Purchaser Party furnished in writing to the Company by such Purchaser Party expressly for use therein, or (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder in connection therewith. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to each Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred; provided, however, that if it is subsequently determined by a final, non-appealable judgment of a court of competent jurisdiction that each Purchaser was not entitled to receive such payments, each Purchaser shall promptly (but in no event later than five (5) Business Days) return such payments to the Company. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
Indemnification by Seller (a) Seller agrees to indemnify and hold harmless the Buyer Indemnified Parties from and against, and pay or reimburse the Buyer Indemnified Parties for, any and all Adverse Consequences which any Buyer Indemnified Party suffers, sustains or incurs directly or indirectly arising out of, relating to or otherwise as a result of: (1) any inaccuracy in or breach of any of the representations or warranties contained in Article 3; (1) any Indebtedness or Seller Transaction Expenses not taken into account in the payment under Section 1.3(c); (1) any Seller Taxes; (iv) any Proceeding that is disclosed on Schedule 3.12(a); (v) any claims by or on behalf of any current or former holder or alleged holder of any equity security of the Company (including any stockholder, option holder, warrant holder or holder of convertible promissory notes) relating to or arising out of the Restructuring, this Agreement, or the transactions contemplated hereby or thereby, or any Liability with respect to any equity interests in the Company (including with respect to any options, warrants or convertible promissory notes), or relating to any alleged breach of fiduciary duty by the directors of the Company (including any claim made against the Company pursuant to Section 8.9(a) hereof), (vi) other than the Business Liabilities, any Liability of the Company arising with respect to the operation of the Business prior to the Closing, (vii) the Restructuring, and (viii) the operations of Seller, Lijit, the Lijit Business or FMP Canada Inc (with the indemnifiable matters referred to in sub-clauses (ii)-(viii), together with any claim by any Buyer Indemnified Party with respect to any inaccuracy or breach of the Fundamental Representations, being referred to herein collectively as the “Special Claims”).
(b) Seller agrees to indemnify and hold harmless the Buyer Indemnified Parties from and against, and pay or reimburse the Buyer Indemnified Parties for, any and all Adverse Consequences which any Buyer Indemnified Party suffers, sustains or incurs directly or indirectly arising out of, relating to or otherwise as a result of: (1) any inaccuracy in or breach of any of the representations or warranties of Seller contained in Article 2; or (1) a breach by Seller of any of its covenants or agreements contained in this Agreement.
Indemnification by Sellers (a) Each Seller shall jointly and severally indemnify Acquiror and its subsidiaries (the “Acquiror Indemnified Parties”) against and hold them harmless from any loss, liability, claim, damage or expense including legal fees and expenses (collectively, “Losses”) suffered or incurred by such Acquiror Indemnified Party arising from, relating to or otherwise in respect of:
(i) any breach of any representation or warranty of Sellers contained in this Agreement or certificate delivered by or on behalf of Sellers pursuant thereto, in each case other than with respect to Section 2.07 (but only excluding Section 2.07 to the extent a breach of the applicable representation or warranty would give rise to an indemnification claim pursuant to Section 7.01(a)(iii) or Section 7.01(a)(iv));
(ii) any breach of any covenant of Sellers contained in this Agreement and any liability (whether known, unknown, accrued, unaccrued, contingent, matured or unmatured) of Kos Investments and Kos Holdings in existence at the Closing Date other than any item that would give rise to an indemnification claim pursuant to Section 7.01(a)(iii) or Section 7.01(a)(iv) and liability that is discharged in connection with the Closing;
(iii) all liability for Taxes of Kos Investments and Kos Holdings allocable to the Preclosing Period as determined under Section 7.03(b); and
(iv) all liability for the Preclosing Periods (as a result of Treasury Regulation § 1.1502-6(a), by contract or otherwise) for Taxes of any entity or person (other than Kos Investments and Kos Holdings) which is or has ever been affiliated with Kos Investments or Kos Holdings if such Tax arises as a result of such affiliation.
(b) In no event shall Acquiror be indemnified to the extent of any liabilities taken into account in the calculation of the Closing Payment. The indemnification provided in this Article VII shall be the sole and exclusive remedy of Acquiror against Sellers for monetary relief under this Agreement or in respect of the transactions contemplated hereby. Each party hereto agrees that the previous sentence shall not limit or otherwise affect any non-monetary right or remedy which any party may have under this Agreement or otherwise limit or affect any party’s right to seek equitable relief, including the remedy of specific performance.