Common use of Section Indemnification Clause in Contracts

Section Indemnification. (i) Seller Parties hereby indemnify Purchaser and its Affiliates against and agrees to hold each of them harmless on an after-Tax basis (subject to Section 6.2(d)) from any and all damage, loss, liability and expense (including, without limitation, reasonable attorneys' fees and reasonable expenses of investigation in connection with any action, suit or proceeding) ("Damages"), incurred or suffered by Purchaser or any Affiliate of Purchaser, arising out of any misrepresentation or breach of warranty, covenant or agreement made or to be performed by Seller Parties pursuant to this Agreement (other than pursuant to Article 6), the operation of the Business prior to July 19, 2000, any claim by any present or former employee of a Seller Party or Affiliate thereof, including, without limitation, the Transferred Employees, which arises under federal, state or local statute (including, without limitation, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities Act of 1990, ERISA and all other statutes regulating the terms and conditions of employment), regulation or ordinance, under the common law or in equity (including any claims for wrongful discharge or otherwise), or under any policy, agreement, understanding or promise, written or oral, formal or informal, between a Seller Party or Affiliate thereof and such present or former employee, which arose out of any action, event or omission that occurred (or, in the case of omissions, failed to occur) prior to the Closing, any legal proceedings arising out of the transactions contemplated hereby brought against any Purchaser or its Affiliates by (A) any Frontier employee which has not been offered employment by Purchaser or which has declined an offer of employment by Purchaser; (B) any Business Customer for which Purchaser has not written coverage; (C) any receiver, liquidator, or conservator of Parent or any of its Subsidiaries, or (D) any shareholder or creditor of Frontier; and any legal proceedings brought or actions taken against any Purchaser or its Affiliates with respect to any matter relating to the Business which occurred prior to the July 19, 2000, except with respect to any policies written by Purchaser or its insurer affiliates; provided, however, that the foregoing indemnification contained in clauses (iv) and (v) shall not apply with respect to any costs, expenses and liabilities directly attributable to the gross negligence or willful misconduct on behalf of Purchaser or its Affiliates or any material breach by Purchaser or its Affiliates of any material contractual obligations to Frontier under the terms of this Agreement; ( vi) Seller Parties' failure to comply with Applicable Law relating to the withdrawal from the Business or the non-renewal of any Insurance Contracts; or (vii) the enforcement of their rights under this Section 6.2; provided, however, that Seller Parties shall not be liable under this Section 6.2(a)(i) for any misrepresentation or breach of warranty (x) unless (and only to the extent) the aggregate amount of Damages with respect to all misrepresentations and breaches of warranties referred to in this Section 6.2(a)(i) exceeds 1 1/2% of the aggregate payments to be made (at the time the indemnification claim is made) pursuant to Section 2.6 and (y) in an amount exceeding 100% of the aggregate payments to be made (at the time the indemnification claim is made) pursuant to Section 2.6 (it being agreed that the limitation set forth in clause (x) of this proviso shall not apply to breaches of the representations and warranties set forth in Section 3.11). (ii) Purchaser hereby indemnifies Seller Parties and their Affiliates against and agrees to hold each of them harmless on an after-Tax basis (subject to Section 6.2(c)) from any and all Damages incurred or suffered by Seller Parties or any of its Affiliates arising out of any misrepresentation or breach of warranty, covenant or agreement made or to be performed by Purchaser pursuant to this Agreement, the enforcement of their rights under this Section 6.2, the operation of the Business on or after July 19, 2000, any action (or failure to act) by Purchaser, in violation of Applicable Law, with respect to the hiring or terms of employment of any person who is an Employee immediately before the Closing Date, or any claim by any present or former employee of a Seller Party or Affiliate thereof, including, without limitation, the Transferred Employees, which arises under federal, state or local statute (including, without limitation, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities Act of 1990, ERISA and all other statutes regulating the terms and conditions of employment), regulation or ordinance, under the common law or in equity (including any claims for wrongful discharge or otherwise), or under any employee benefit plan or program of Purchaser or any Affiliate of Purchaser, or under any policy, agreement, understanding or promise, written or oral, formal or informal, between Purchaser or an Affiliate thereof and such present or former employee, which arose out of any action, event or omission that occurred (or, in the case of omissions, failed to occur) following the Closing; provided, however, that Seller Parties shall not be liable under this Section 6.2(b)(i) for any misrepresentation or breach of warranty (x) unless the aggregate amount of Damages with respect to all misrepresentations and breaches of warranties referred to in this Section 6.2(b)(i) exceeds 1 1/2% of the aggregate payments to be made (at the time the indemnification claim is made) pursuant to Section 2.6 and (y) in an amount exceeding 100% of the aggregate payments to be made (at the time the indemnification claim is made) pursuant to Section 2.6 (it being agreed that the limitation set forth in clause (x) of this proviso shall not apply to breaches of the representations and warranties set forth in Section 3.11).

Section Indemnification. a. To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor who holds such Registrable Securities, the directors, officers, partners, employees, agents and each Person, if any, who controls any Investor within the meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended (the "1934 ACT") (collectively, Controlling Person"), and any underwriter (as defined in the 1933 ▇▇▇) ▇▇r the Investors, and the directors and officers of, and each Person, if any, who controls, any such underwriter within the meaning of the 1933 Act or the 1934 Act (each, an "INDEMNIFIED PERSON"), against any losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs, attorneys' fees, amounts paid in settlement or expenses, joint or several, (collectively, "CLAIMS") incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending or threatened, whether or not an indemnified party is or may be a party thereto ("INDEMNIFIED DAMAGES"), to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) Seller Parties hereby indemnify Purchaser and its Affiliates against and agrees to hold each any untrue statement or alleged untrue statement of them harmless on an aftera material fact in a Registration Statement or any post-Tax basis (subject to Section 6.2(d)) from effective amendment thereto or in any and all damage, loss, liability and expense (including, without limitation, reasonable attorneys' fees and reasonable expenses of investigation filing made in connection with the qualification of the offering under the securities or other "blue sky" laws of any action, suit or proceeding) jurisdiction in which Registrable Securities are offered ("DamagesBLUE SKY FILING"), incurred or suffered by Purchaser the omission or any Affiliate of Purchaser, arising out of any misrepresentation or breach of warranty, covenant or agreement made or alleged omission to state a material fact required to be performed stated therein or necessary to make the statements therein, in light of the circumstances under which the statements therein were made, not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the effective date of such Registration Statement, or contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or 8 supplement thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading, or (iii) any violation or alleged violation by Seller Parties pursuant to this Agreement (other than pursuant to Article 6)the Company of the 1933 Act, the operation of the Business prior to July 19, 20001934 Act, any claim by any present or former employee of a Seller Party or Affiliate thereofother law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the Transferred Employees, which arises under federal, state offer or local statute (including, without limitation, Title VII sale of the Civil Rights Act Registrable Securities pursuant to a Registration Statement (the matters in the foregoing clauses (i) through (iii) being, collectively, "VIOLATIONS"). Subject to the restrictions set forth herein with respect to the number of 1964legal counsel, the Civil Rights Act of 1991Company shall reimburse the Investors and each such underwriter or controlling person, promptly as such expenses are incurred and are due and payable, for any legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the Age Discrimination indemnification agreement contained in Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities Act of 1990, ERISA and all other statutes regulating the terms and conditions of employment), regulation or ordinance, under the common law or in equity this Section : (including any claims for wrongful discharge or otherwise), or under any policy, agreement, understanding or promise, written or oral, formal or informal, between i) shall not apply to a Seller Party or Affiliate thereof and such present or former employee, which arose out of any action, event or omission that occurred (or, in the case of omissions, failed to occur) prior to the Closing, any legal proceedings Claim arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the transactions contemplated hereby brought against Company by any Purchaser Indemnified Person or its Affiliates underwriter for such Indemnified Person expressly for use in connection with the preparation of the Registration Statement or any such amendment thereof or supplement thereto, if such prospectus was timely made available by (A) any Frontier employee which has not been offered employment by Purchaser or which has declined an offer of employment by Purchaserthe Company pursuant to Section 3(c); (Bii) any Business Customer for which Purchaser has not written coverage; (C) any receiver, liquidator, or conservator of Parent or any of its Subsidiaries, or (D) any shareholder or creditor of Frontier; and any legal proceedings brought or actions taken against any Purchaser or its Affiliates with respect to any matter relating preliminary prospectus, shall not inure to the Business which occurred benefit of any such person from whom the person asserting any such Claim purchased the Registrable Securities that are the subject thereof (or to the benefit of any person controlling such person) if the untrue statement or mission of material fact contained in the preliminary prospectus was corrected in the prospectus, as then amended or supplemented, if such prospectus was timely made available by the Company pursuant to Section 3(c), and the Indemnified Person was promptly advised in writing not to use the incorrect prospectus prior to the July 19use giving rise to a violation and such Indemnified Person, 2000notwithstanding such advice, except used it; (iii) shall not be available to the extent such Claim is based on a failure of the Investor to deliver or to cause to be delivered the prospectus made available by the Company (i) and (iv) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of the Registrable Securities by the Investors pursuant to Section 9. b. In connection with respect any Registration Statement in which an Investor is participating, each such Investor agrees to severally and not jointly indemnify, hold harmless and defend, to the same extent and in the same manner as is set 9 forth herein, the Company, each of its directors, each of its officers who signs the Registration Statement, each Person, if any, who controls the Company within the meaning of the 1933 Act or the 1934 Act (collectively and together with an Indemnified Person, an "INDEMNIFIED PARTY"), against any policies Claim or Indemnified Damages to which any of them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon any Violation, in each case to the extent, and only to the extent, that such Violation occurs in reliance upon and in conformity with written information furnished to the Company by Purchaser such Investor expressly for use in connection with such Registration Statement; and, subject to Section 6(d), such Investor will reimburse any legal or its insurer affiliatesother expenses reasonably incurred by them in connection with investigating or defending any such Claim; provided, however, that the foregoing indemnification indemnity agreement contained in clauses (iv) and (v) this Section shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of such Investor, which consent shall not be unreasonably withheld. 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 the Registrable Securities by the Investors. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section with respect to any costs, expenses and liabilities directly attributable preliminary prospectus shall not inure to the gross negligence or willful misconduct on behalf of Purchaser or its Affiliates or any material breach by Purchaser or its Affiliates benefit of any Indemnified Party if the untrue statement or omission of material contractual obligations fact contained in the preliminary prospectus was corrected on a timely basis in the prospectus, as then amended or supplemented. c. The Company shall be entitled to Frontier under the terms of this Agreement; ( vi) Seller Parties' failure to comply with Applicable Law relating receive indemnities from underwriters, selling brokers, dealer managers and similar securities industry professionals participating in any distribution, to the withdrawal from same extent as provided above, with respect to information such persons so furnished in writing expressly for inclusion in the Business Registration Statement. d. Promptly after receipt by an Indemnified Person or the non-renewal of any Insurance Contracts; or (vii) the enforcement of their rights Indemnified Party under this Section 6.2of notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving a Claim such Indemnified Person or Indemnified Party shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party, as the case may be; provided, however, that Seller Parties an Indemnified 10 Person or Indemnified Party shall have the right to retain its own counsel with the fees and expenses to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Indemnified Person or Indemnified Party and the indemnifying party would be inappropriate due to actual or potential differing interests between such Indemnified Person or Indemnified Party and any other party represented by such counsel in such proceeding. The Company shall pay reasonable fees for only one separate legal counsel for the Investors, which counsel shall be acceptable to the Company and such legal counsel shall be selected by the Investors holding a majority in interest of the Registrable Securities included in the Registration Statement to which the Claim relates. The Indemnified Party or Indemnified Person shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified Person which relates to such action or claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its written consent, provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the consent of the Indemnified Party or Indemnified Person, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or Indemnified Person of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified Person with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party under this Section 6. e. The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law. f. To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum 11 contribution with respect to any amounts for which it would otherwise be liable under this Section 6.2(a)(i) for any misrepresentation or breach of warranty (x) unless (and only to the extent) the aggregate amount of Damages with respect to all misrepresentations and breaches of warranties referred to in this Section 6.2(a)(i) exceeds 1 1/2% of the aggregate payments to be made (at the time the indemnification claim is made) pursuant to Section 2.6 and (y) in an amount exceeding 100% of the aggregate payments to be made (at the time the indemnification claim is made) pursuant to Section 2.6 (it being agreed that the limitation set forth in clause (x) of this proviso shall not apply to breaches of the representations and warranties set forth in Section 3.11). (ii) Purchaser hereby indemnifies Seller Parties and their Affiliates against and agrees to hold each of them harmless on an after-Tax basis (subject to Section 6.2(c)) from any and all Damages incurred or suffered fullest extent permitted by Seller Parties or any of its Affiliates arising out of any misrepresentation or breach of warranty, covenant or agreement made or to be performed by Purchaser pursuant to this Agreement, the enforcement of their rights under this Section 6.2, the operation of the Business on or after July 19, 2000, any action (or failure to act) by Purchaser, in violation of Applicable Law, with respect to the hiring or terms of employment of any person who is an Employee immediately before the Closing Date, or any claim by any present or former employee of a Seller Party or Affiliate thereof, including, without limitation, the Transferred Employees, which arises under federal, state or local statute (including, without limitation, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities Act of 1990, ERISA and all other statutes regulating the terms and conditions of employment), regulation or ordinance, under the common law or in equity (including any claims for wrongful discharge or otherwise), or under any employee benefit plan or program of Purchaser or any Affiliate of Purchaser, or under any policy, agreement, understanding or promise, written or oral, formal or informal, between Purchaser or an Affiliate thereof and such present or former employee, which arose out of any action, event or omission that occurred (or, in the case of omissions, failed to occur) following the Closinglaw; provided, however, that Seller Parties that: (i) no contribution shall not be liable under this Section 6.2(b)(i) for any misrepresentation or breach of warranty (x) unless the aggregate amount of Damages with respect to all misrepresentations and breaches of warranties referred to in this Section 6.2(b)(i) exceeds 1 1/2% of the aggregate payments to be made (at under circumstances where the time maker would not have been liable for indemnification under the indemnification claim is made) pursuant to Section 2.6 and (y) in an amount exceeding 100% of the aggregate payments to be made (at the time the indemnification claim is made) pursuant to Section 2.6 (it being agreed that the limitation fault standards set forth in clause this Section; (xii) no seller of Registrable Securities guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of this proviso the 1933 ▇▇▇) shall be entitled to contribution from any seller of Registrable Securities who was not apply guilty of fraudulent misrepresentation; and (iii) contribution by any seller of Registrable Securities shall be limited in amount to breaches the net amount of proceeds received by such seller from the representations and warranties set forth in Section 3.11)sale of such Registrable Securities.