Common use of Post Closing Indemnification Clause in Contracts

Post Closing Indemnification. (a) From and after the Closing Date, Sellers jointly and severally shall defend, indemnify and hold harmless Buyer and its affiliates (including the Company) and each of their successors, assigns, officers, directors and employees (the "Buyer Indemnitee Group") against and in respect of any and all losses, actions, suits, proceedings, claims, liabilities, damages, causes of action, demands, assessments, judgments, and investigations and any and all costs and expenses paid to third parties, including without limitation, reasonable attorneys' fees and expenses (collectively, "Damages"), suffered by any of them as a result of, or arising from: (i) any inaccuracy in or breach of or omission from any of the representations or warranties made by Sellers in Article II of this Agreement or pursuant hereto, or any nonfulfillment, partial or total, of any of the covenants or agreements made by Sellers in this Agreement to the extent not waived by Buyer in writing; or (ii) any claim, action, suit, proceeding or investigation of any kind relating to or arising from events occurring prior to the Closing Date, instituted by or against or involving the Company or any of its business or assets (other than those claims, actions, suits, proceedings and investigations set forth in Schedule 2.13 of the Disclosure Schedule) regardless of whether such claims, actions, suits, proceedings or investigations are made or commenced before or after the Closing Date, provided that Damages relating to claims, actions, suits, proceedings and investigations that relate to events occurring both before and after the Closing Date shall be equitably allocated between Buyer and Sellers. (b) From and after the Closing Date, Buyer shall defend, indemnify and hold harmless Sellers and their heirs, trustees, successors and assigns against and in respect of any and all losses, actions, suits, proceedings, claims, liabilities, damages, causes of action, demands, assessments, judgments, and investigations and any and all costs and expenses paid to third parties, including without limitation, reasonable attorneys' fees and expenses, suffered 10 -61- by any of them as a result of, or arising from, any inaccuracy in or breach of or omission from any of the representations or warranties made by Buyer in Article III of this Agreement or pursuant hereto, or any non-fulfillment, partial or total, of any of the covenants or agreements made by Buyer in this Agreement to the extent not waived by Sellers in writing. (c) If a claim by a third party is made against an indemnified party, and if such party intends to seek indemnity with respect thereto under this Article VI, the indemnified party shall promptly (and in any case within thirty days of such claim being made) notify the indemnifying party of such claim, provided, however, that the failure to so notify the indemnifying party shall not discharge the indemnifying party of its obligations hereunder except that the indemnifying party shall not be liable for default judgments or any amounts related thereto if the indemnified party shall not have so notified the indemnifying party. Subject to the following sentence, the indemnifying party shall have thirty days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing (which is satisfactory to the indemnified party) the settlement or defense thereof, and the indemnified party shall cooperate with it in connection therewith (provided that the indemnifying party shall permit the indemnified party to participate in such settlement or defense through counsel chosen by the indemnified party, provided that the fees and expenses of such counsel shall be borne by the indemnified party) and the indemnifying party shall promptly reimburse the indemnified party for the full amount of any loss resulting from such claim and all related expenses as incurred by the indemnified party within limits of this Article VI. Notwithstanding anything herein to the contrary, the indemnified party shall have the right to conduct and control the defense of any such claim in the event that such claim (including a claim for equitable relief) or the continuation of such claim could reasonably be expected to materially adversely affect the business, results of operations, prospects or financial condition of the indemnified party or any of its affiliates, provided, however, the indemnified party may not settle any claim for an amount in excess of $25,000 or consent to any settlement which imposes equitable remedies on the indemnifying party or its affiliates without the prior consent of the indemnifying party, which consent shall not be unreasonably withheld, unless the indemnified party agrees to waive any right to indemnity therefor by the indemnifying party. If the indemnifying party does not notify the indemnified party within thirty days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof or if the indemnifying party is not reasonably contesting the claim in good faith, the indemnified party shall have the right to contest, settle or compromise the claim in the exercise of its reasonable judgment, and all losses incurred by the indemnified party, including all fees and expenses of counsel for the indemnified party, shall be paid by the indemnifying party. (d) Claims for indemnification made under this Section 6.02 shall be made within a period of three years from the Closing Date, provided, however, notwithstanding the foregoing, claims for indemnification with respect to any action, lawsuit, proceeding or investigation of any kind relating to or arising out of the matters referred to in Section 6.02(a)(ii) may be made within five years from the Closing Date.

Post Closing Indemnification. (a) From and after the Closing DateClosing, Sellers jointly and severally shall defendsubject to the limitations herein, indemnify the Surviving Corporation and hold harmless Buyer Parent and its affiliates (including the Company) and each of their successors, assignsrespective directors, officers, directors employees, agents, shareholders, subsidiaries, affiliates, successors and employees assigns (each a “Parent Indemnified Person” and, collectively, the "Buyer Indemnitee Group"“Parent Indemnified Persons”) will be indemnified and held harmless from, and against and in respect of any and all losses, actions, suits, proceedingsdemands, claims, liabilities, damages, actions or causes of action, demands, assessments, judgmentslosses, and investigations and any and all damages, liabilities, costs and expenses (including amounts paid to third partiesin settlement, including interest, court costs, costs of investigators, reasonable fees and expenses of accountants, advisors and other experts, and reasonable attorneys’ fees and expenses), including, without limitation, reasonable attorneys' fees interest, penalties, disbursements and expenses not otherwise paid by or recovered from an applicable policy (or policies) of insurance (collectively, "Damages")“Losses”) arising out of (i) the breach of or inaccuracy in any representation or warranty of the Company contained in this Agreement, suffered (ii) the breach by any of them as a result the Company of, or arising from: (i) any inaccuracy in or breach of or omission from any of the representations or warranties made failure by Sellers in Article II of this Agreement or pursuant heretothe Company to perform, or any nonfulfillment, partial or total, of any of the covenants or other agreements made by Sellers contained in this Agreement to be performed by the extent not waived by Buyer in writing; or (ii) any claim, action, suit, proceeding or investigation of any kind relating Company prior to or arising from events occurring prior at the Closing, (iii) the Company’s litigation (the “HMH Litigation”) with Houghton Mifflin Harcourt Publishing Company and its affiliates (collectively, “HMH”), excluding any litigation related to the Closing Date, instituted patent claims asserted by or against or involving the Company or any of its business affiliates against HMH after Closing, which patent claims shall not be indemnifiable nor constitute Losses under this Agreement; provided that notwithstanding the foregoing, any patent claims asserted by HMH against the Company, and any patent claims asserted by the Company or assets any of its affiliates against HMH after Closing in defense of any patent claims asserted by HMH, shall be indemnifiable and shall constitute Losses under this Agreement, (other than those claims, actions, suits, proceedings and investigations iv) any matters set forth in Schedule 2.13 Sections 3.10(c), 3.11 or 3.14 of the Company Disclosure Schedule, (v) regardless any Dissenting Share Liabilities (as defined below), (vi) claims made against the Surviving Corporation or Parent by a third party related to the license or failure to license by the Company of whether such claims, actions, suits, proceedings third party’s software or investigations are made or commenced before or after the Closing Date, provided that Damages relating to claims, actions, suits, proceedings and investigations that relate to events occurring both before and after the Closing Date shall be equitably allocated between Buyer and Sellers. (b) From and after the Closing Date, Buyer shall defend, indemnify and hold harmless Sellers and their heirs, trustees, successors and assigns against and in respect of any and all losses, actions, suits, proceedings, claims, liabilities, damages, causes of action, demands, assessments, judgments, and investigations and any and all costs and expenses paid to third partiesother intellectual property, including without limitation, reasonable attorneys' fees and expenses, suffered 10 -61- Microsoft licensing or (vii) claims made against Parent or the Surviving Corporation by any of them as a result of, or arising from, any inaccuracy the counterparty to that certain agreement set forth in or breach of or omission from any Section 3.10(c)(1) of the representations or warranties made by Buyer in Article III Company Disclosure Schedule alleging that the execution and delivery of this Agreement or pursuant heretoby the Company, or any non-fulfillment, partial or total, of any the consummation of the covenants Merger, contravened, breached, conflicted with or agreements made by Buyer in this Agreement to the extent not waived by Sellers in writing. (c) If constituted a claim by a third party is made against an indemnified party, and if such party intends to seek indemnity with respect thereto under this Article VI, the indemnified party shall promptly (and in any case within thirty days violation of such claim being madeagreement set forth in Section 3.10(c)(1) notify of the indemnifying party of such claim, provided, however, that Company Disclosure Schedule. In determining the failure to so notify the indemnifying party shall not discharge the indemnifying party of its obligations hereunder except that the indemnifying party shall not be liable for default judgments or any amounts related thereto if the indemnified party shall not have so notified the indemnifying party. Subject to the following sentence, the indemnifying party shall have thirty days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing (which is satisfactory to the indemnified party) the settlement or defense thereof, and the indemnified party shall cooperate with it in connection therewith (provided that the indemnifying party shall permit the indemnified party to participate in such settlement or defense through counsel chosen by the indemnified party, provided that the fees and expenses of such counsel shall be borne by the indemnified party) and the indemnifying party shall promptly reimburse the indemnified party for the full amount of any loss resulting from such claim and all related expenses as incurred by the indemnified party within limits of this Article VI. Notwithstanding anything herein Losses for which an Indemnified Person is entitled to the contraryindemnification, the indemnified party shall have the right to conduct and control the defense amount of any such claim Losses shall be determined after deducting therefrom the amount of any insurance proceeds or other third party recoveries received by such Indemnified Person or any of its affiliates in the event that such claim (including a claim for equitable relief) or the continuation respect of such claim could reasonably Losses; provided that nothing in this Section 7.3(a) shall be expected deemed to materially adversely affect limit the businessright of Parent Indemnified Persons to be advanced amounts from the Escrowed Property in respect of fees, results of operationscosts and expenses as set forth in Section 7.5(d) below. If an indemnification payment is received by an Indemnified Person, prospects or financial condition of the indemnified party and such Person, or any of its affiliates, providedlater received insurance proceeds or other third party recoveries in respect of such Losses, howeversuch Indemnified Person shall promptly pay to the Indemnifying Party a sum equal to the lesser of (i) the Indemnifying Party’s pro rata share (based on percentage of Merger Consideration received by such Indemnifying Party) of the actual amount of insurance proceeds or other third party recoveries or (ii) the actual amount of the indemnification payment previously paid by the Indemnifying Party with respect to such Losses. (b) For purposes of this Agreement, “Dissenting Share Liabilities” shall mean, (i) with respect to each Dissenting Share entitled to payment pursuant to Section 23-1-44 of the indemnified party may not settle any claim for IBCL an amount in excess of $25,000 or consent equal to any settlement which imposes equitable remedies on (A) the indemnifying party or its affiliates without the prior consent consideration determined to be due with respect to such Dissenting Share pursuant to Section 23-1-44 of the indemnifying partyIBCL, which consent shall together with any interest and penalties therein, minus (B) the amount otherwise payable with respect to such Dissenting Share pursuant to Article 2 of this Agreement if such share was not be unreasonably withheld, unless the indemnified party agrees a Dissenting Share entitled to waive any right payment pursuant to indemnity therefor by the indemnifying party. If the indemnifying party does not notify the indemnified party within thirty days after the receipt Section 23-1-44 of the indemnified party's notice IBCL, plus (ii) all costs and expenses (including amounts paid in settlement, interest, court costs, costs of a claim of indemnity hereunder that it elects to undertake the defense thereof or if the indemnifying party is not reasonably contesting the claim in good faithinvestigators, the indemnified party shall have the right to contest, settle or compromise the claim in the exercise of its reasonable judgment, and all losses incurred by the indemnified party, including all fees and expenses of counsel for accountants, advisors and other experts, and reasonable attorneys’ fees and expenses) incurred in connection with the indemnified party, shall be paid by the indemnifying party. (d) Claims for indemnification defense and prosecution of all claims made under this pursuant to Section 6.02 shall be made within a period of three years from the Closing Date, provided, however, notwithstanding the foregoing, claims for indemnification with respect to any action, lawsuit, proceeding or investigation of any kind relating to or arising out 23-1-44 of the matters referred to in Section 6.02(a)(ii) may be made within five years from the Closing DateIBCL by any holder of Dissenting Shares.

Post Closing Indemnification. (a) From and after the Closing Date, Sellers jointly and severally ▇▇▇▇▇▇ shall defend, indemnify and hold harmless Buyer and its affiliates subsidiaries (including the Company) and each of their successors, assigns, officers, directors and employees (the "Buyer Indemnitee Group") against and in respect of any and all losses, actions, suits, proceedings, claims, liabilities, damages, causes of action, demands, assessments, judgments, and investigations and any and all costs and expenses paid to third parties, including without limitation, reasonable attorneys' fees and expenses (collectively, "Damages"), suffered by any of them as a result of, or arising from: (i) except for matters referred to in clauses (ii) and (iii) hereof and in Section 6.03, any inaccuracy in or breach of or omission from any of the representations or warranties made by Sellers ▇▇▇▇▇▇ in Article II of this Agreement or pursuant heretohereto (as amended by the Disclosure Supplements), or any nonfulfillment, partial or total, of any of the covenants or agreements made by Sellers ▇▇▇▇▇▇ in this Agreement to the extent not waived by Buyer in writing; or (ii) except for matters referred to in clause (iii) hereof and in Section 6.03, any claim, action, suit, proceeding or investigation of any kind relating to or arising from events occurring prior to the Closing Date, instituted by or against or involving the Company or any of its business or assets (other than those claims, actions, suits, proceedings and investigations set forth in Schedule 2.13 2.14 of the Disclosure Schedule) regardless of whether such claims, actions, suits, proceedings or investigations are made or commenced before or after the Closing Date, provided that Damages relating to claims, actions, suits, proceedings and investigations that relate to events occurring both before and after the Closing Date shall be equitably allocated 23 - 192 - between Buyer and SellersSellers and; (iii) the failure or inability of the Company to collect all accounts receivable reflected on the Financial Statements less the amount of $20,000, provided, however, the Company and Buyer shall have used all customary methods to collect such accounts receivable and provided further, that if ▇▇▇▇▇▇ shall be required to pay any amounts hereunder, Buyer or the Company shall assign uncollected accounts receivable to ▇▇▇▇▇▇, who may use all necessary reasonable means to collect it, including bringing an action in the name of the Company. (b) From and after the Closing Date, Buyer shall defend, indemnify and hold harmless Sellers and their heirs, trustees, successors and assigns against and in respect of any and all losses, actions, suits, proceedings, claims, liabilities, damages, causes of action, demands, assessments, judgments, and investigations and any and all costs and expenses paid to third parties, including without limitation, reasonable attorneys' fees and expenses, suffered 10 -61- by any of them as a result of, or arising from, any inaccuracy in or breach of or omission from any of the representations or warranties made by Buyer in Article III of this Agreement or pursuant hereto, or any non-fulfillment, partial or total, of any of the covenants or agreements made by Buyer in this Agreement to the extent not waived by Sellers in writing. (c) From and after the Closing Date, each Seller other than ▇▇▇▇▇▇ shall defend, indemnify and hold harmless the Buyer Indemnitee Group against and in respect of any and all Damages suffered by any of them as a result of, or arising from, any inaccuracy in or breach of or omission from any of the representations or warranties made by such Seller in Article III of this Agreement or pursuant hereto, or any non-fulfillment, partial or total, of any of the covenants or agreements made by such Seller in this Agreement. (d) If a claim by a third party is made against an indemnified party, and if such party intends to seek indemnity with respect thereto under this Article VI, the indemnified party shall promptly (and in any case within thirty days of such claim being made) notify the indemnifying party of such claim, provided, however, that the failure to so notify the indemnifying party shall not discharge the indemnifying party of its obligations hereunder except that the indemnifying party shall not be liable for default judgments or any amounts related thereto if the indemnified party shall not have so notified the indemnifying party. Subject to the following sentence, the indemnifying party shall have thirty days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing (which is satisfactory to the indemnified party) the settlement or defense thereof, and the indemnified party shall cooperate with it in connection therewith (provided that the indemnifying party shall permit the indemnified party to participate in such settlement or defense through counsel chosen by the indemnified party, provided that the fees and expenses of such counsel shall be borne by the indemnified party) and the indemnifying party shall promptly reimburse the indemnified party for the full amount of any loss resulting from such claim and all related expenses as incurred by the indemnified party within limits of this Article VI. Notwithstanding anything herein to the contrary, the indemnified party shall have the right to conduct and control the defense of any such claim in the event that such claim (including a claim for equitable relief) or the continuation of such claim could reasonably be expected to materially adversely affect the business, results of operations, prospects or financial condition of the indemnified party or any of its affiliates, provided, however, the indemnified party may not settle any claim for an amount in excess of $25,000 or consent to any settlement which imposes equitable remedies on the indemnifying party or its affiliates without the prior consent of the indemnifying party, which consent shall not be unreasonably withheld, unless the indemnified party agrees to waive any right to indemnity therefor by the indemnifying party. If the indemnifying party does not notify the indemnified party within thirty days after the receipt of the indemnified party's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof or if the indemnifying party is not reasonably contesting the claim in good faith, the indemnified party shall have the right to contest, settle or compromise the claim in the exercise of its reasonable judgment, and all losses incurred by the indemnified party, including all fees and expenses of counsel for the indemnified party, shall be paid by the indemnifying party. (de) Claims for indemnification made under this Section 6.02 shall be made within a period of three years one year from the Closing Date, provided, however, notwithstanding the foregoing, claims for indemnification with respect to any action, lawsuit, proceeding or investigation of any kind relating to or arising out of the matters referred to in Section 6.02(a)(ii) and claims for indemnification pursuant to Section 6.02(a)(iii) may be made within five years from the Closing Date.