Common use of Indemnification and Payment of Damages by Shareholders Clause in Contracts

Indemnification and Payment of Damages by Shareholders. The Shareholders Jointly and severally will indemnify and hold harmless the Purchaser, and its Representatives, shareholders, controlling persons, and Affiliates (collectively, the "Indemnified Persons") for, and will pay to the Indemnified Persons the amount of any loss, liability, claim, damage (including all damages to which such party is entitled under applicable laws), or expense (including costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-party claim (collectively, "Damages"), arising, directly or indirectly, from or in connection with: (a) any Breach of any representation or warranty made by any of the Shareholders in this Agreement or any Schedule attached hereto, or any other certificate or document delivered by any of the Shareholders pursuant to this Agreement; (b) any Breach of any representation or warranty made by any of the Shareholders in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Schedules attached hereto; (c) any Breach by either of the Shareholders of any covenant or obligation of such Shareholders in this Agreement; (d) any product shipped or manufactured by, or any services provided by, the Companies prior to the Closing Date; (e) any matter disclosed in Schedule 3.28; (f) any liability or obligation of any of the Companies as of the Closing Date not reflected on the Closing Date Balance Sheet as it may be adjusted pursuant to the provisions of SECTIONS 2.03(b) and (c); (g) any claim by any Person for broker's or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any of the Shareholders or any Company (or any Person acting on their behalf) in connection with any of the Contemplated Transactions; (h) the Medicaid Investigation; (i) any liability or obligation arising out of or relating to the failure of the Shareholders to obtain any consent required in connection with consummation of the Contemplated Transactions including, without limitation, the Landlord Estoppel Certificate and consents contained therein; provided, however, that the Shareholders shall be entitled to reasonable control of the process of obtaining the Landlord Estoppel Certificates on and after the Closing Date; and provided further that this indemnification shall not apply to (a) any Landlord Estoppel Certificate or lease assignment that the Shareholders fall to obtain as a result of ECCA's failure to consent to any reasonable terms the landlords seek in connection with such Certificate or assignment, or (b) the lease for real property located at 4301 Xxxxxxxxx Xxx., X.X., Xxxxxxxxxx, X.C.; or (j) any liability or obligation arising out of or relating to the leasehold interest conveyed to Day, Pattxxxxx & Xhitxxx, X.D., P.C. pursuant to that certain Asset Purchase Agreement dated March 28, 1995 by and between MVS, the Professional Corporation and Day, Pattxxxxx & Xhitxxx, X.D., P.C. The remedies provided in this SECTION 9.02 will not be exclusive of or limit any other remedies that may be available to the Purchaser or the other Indemnified Persons. The Shareholders acknowledge and agree that the execution and delivery of the Management Services Agreements and performance thereunder by the Professional Corporation is a material inducement for the Purchaser to consummate the Contemplated Transactions and that the Purchaser and its Affiliates are relying, and are entitled to rely, on the representations and warranties of the Shareholders herein relating to the Professional Corporation.

Indemnification and Payment of Damages by Shareholders. The Subject to the limitations described herein, Shareholders Jointly severally, and severally not jointly, will indemnify and hold harmless THI, the Purchaser, Company and its their respective Representatives, shareholdersstockholders, controlling persons, and Affiliates affiliates (collectively, the "Indemnified Persons") for, and will pay to the Indemnified ------------------- Persons the amount of of, any loss, liability, claim, damage (including all damages to which such party is entitled under applicable lawsincidental and consequential damages), or expense (including costs of investigation and defense and reasonable attorneys' fees)) or diminution of value, whether or not involving a third-party claim (collectively, "Damages"), arisingarising or resulting ------- from, directly or indirectly, from or in connection with: (a) any Breach of any representation or warranty made by any of the Shareholders in this Agreement or any Schedule attached heretothe Stock Acquisition Agreement, or any other certificate or document delivered by any of the Shareholders pursuant to this Agreement or the Stock Acquisition Agreement; (b) any Breach of any representation or warranty made by any of the Shareholders in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Schedules attached hereto; (c) any Breach by either of the Shareholders of any covenant or obligation of such Shareholders in this Agreement or the Stock Acquisition Agreement, or any other document delivered by Shareholders pursuant to this Agreement or the Stock Acquisition Agreement; (dc) regardless of whether it may also constitute a Breach under Section 10.2 (a) or (b) above, any product shipped loss, liability, claim, damage (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys' fees) arising from or manufactured byrelating to the operation, management or any services provided byownership of the Company, arising or related to the Companies period on or prior to the Closing Date; Date (e) any matter disclosed in Schedule 3.28; (f) any liability whether known or obligation of any of the Companies as of the Closing Date not reflected unknown on the Closing Date Balance Sheet as it may be adjusted pursuant to the provisions of SECTIONS 2.03(b) and (cDate); (g) any claim by any Person for broker's or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any of the Shareholders or any Company (or any Person acting on their behalf) in connection with any of the Contemplated Transactions; (h) the Medicaid Investigation; (i) any liability or obligation arising out of or relating to the failure of the Shareholders to obtain any consent required in connection with consummation of the Contemplated Transactions including, without limitation, the Landlord Estoppel Certificate and consents contained therein; . provided, however, that (i) except as provided in (ii) below, the aggregate -------- ------- amount of Damages for which the Shareholders shall indemnify THI hereunder shall not exceed each Shareholder's pro rata share of the amount in the Post-Closing Escrow Fund as established pursuant to the Stock Acquisition Agreement (such indemnification to be provided by the Post-Closing Escrow Fund); (ii) the aggregate amount of Damages for which the Shareholders shall indemnify THI hereunder for any Breach of a representation or warranty contained in Section 3.9 and 3.13 or for any claim based solely upon an intentionally fraudulent misrepresentation of a material fact shall not exceed each Shareholder's pro rata share of the Purchase Price as established pursuant to the Stock Acquisition Agreement (such indemnification to be provided first by the Post-Closing Escrow Fund) and the shares of THI Common and THI Preferred issued hereunder; (iii) in no event shall the aggregate amount of any Shareholder's Damages under both this Agreement and the Stock Acquisition Agreement exceed the limitations on Damages set forth in the Stock Acquisition Agreement plus the Shareholder's then interest in the stock acquired pursuant to this Agreement plus the proceeds of any prior sales of such stock and (iv) THI shall not be entitled to assert any right to indemnification hereunder against the Shareholders until THI's good faith estimate of all Damages for which the Shareholders indemnify THI hereunder and/or under the Stock Acquisition Agreement exceeds $100,000 (the "Indemnification Threshold") at which time THI ------------------------- shall be entitled to reasonable control of indemnification for all Damages which exceed the process of obtaining the Landlord Estoppel Certificates on and after the Closing Date; and provided further that this indemnification shall not apply to Indemnification Threshold (a) any Landlord Estoppel Certificate or lease assignment that the Shareholders fall to obtain as a result of ECCA's failure to consent to any reasonable terms the landlords seek in connection with such Certificate or assignment, or (b) the lease for real property located at 4301 Xxxxxxxxx Xxx., X.X., Xxxxxxxxxx, X.C.; or (j) any liability or obligation arising out of or relating subject to the leasehold interest conveyed to Day, Pattxxxxx & Xhitxxx, X.D., P.C. pursuant to that certain Asset Purchase Agreement dated March 28, 1995 by and between MVS, the Professional Corporation and Day, Pattxxxxx & Xhitxxx, X.D., P.C. The remedies provided in this SECTION 9.02 will not be exclusive of or limit any other remedies that may be available to the Purchaser or the other Indemnified Persons. The Shareholders acknowledge and agree that the execution and delivery of the Management Services Agreements and performance thereunder by the Professional Corporation is a material inducement for the Purchaser to consummate the Contemplated Transactions and that the Purchaser and its Affiliates are relying, and are entitled to rely, on the representations and warranties of the Shareholders herein relating to the Professional Corporationlimitations described above).

Indemnification and Payment of Damages by Shareholders. The (a) Subject to the limitations described herein, Shareholders Jointly severally, and severally not jointly, will indemnify and hold harmless THI, the Purchaser, Company and its their respective Representatives, shareholdersstockholders, controlling persons, and Affiliates affiliates (collectively, the "Indemnified Persons") for, and will pay to the Indemnified Persons the amount of of, any loss, liability, claim, damage (including all damages to which such party is entitled under applicable lawsincidental and consequential damages), or expense (including costs of investigation and defense and reasonable attorneys' fees)) or diminution of value, whether or not involving a third-party claim (collectively, "Damages"), arisingarising or resulting from, directly or indirectly, from or in connection with: (ai) any Breach of any representation or warranty made by any of the Shareholders in this Agreement or any Schedule attached heretothe Stock Acquisition Agreement, or any other certificate or document delivered by any of the Shareholders pursuant to this Agreement or the Stock Acquisition Agreement; (b) any Breach of any representation or warranty made by any of the Shareholders in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Schedules attached hereto; (cii) any Breach by either of the Shareholders of any covenant or obligation of such Shareholders in this Agreement or the Stock Acquisition Agreement, or in any Shareholders' Closing Documents or any other document delivered by Shareholders pursuant to this Agreement or the Stock Acquisition Agreement; (diii) regardless of whether it may also constitute a Breach under Section 10.2 (a) or (b) above, any product shipped loss, liability, claim, damage (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys' fees) arising from or manufactured byrelating to the operation, management or any services provided byownership of the Company, arising or related to the Companies period on or prior to the Closing Date; Date (e) any matter disclosed in Schedule 3.28; (f) any liability whether known or obligation of any of the Companies as of the Closing Date not reflected unknown on the Closing Date Balance Sheet as it may be adjusted pursuant to the provisions of SECTIONS 2.03(b) and (cDate); (g) any claim by any Person for broker's or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any of the Shareholders or any Company (or any Person acting on their behalf) in connection with any of the Contemplated Transactions; (h) the Medicaid Investigation; (i) any liability or obligation arising out of or relating to the failure of the Shareholders to obtain any consent required in connection with consummation of the Contemplated Transactions including, without limitation, the Landlord Estoppel Certificate and consents contained therein; . provided, however, that (i) except as provided in (ii) below, the aggregate -------- ------- amount of Damages for which any Shareholder shall indemnify THI hereunder for any Breach of a representation, warranty, covenant or other obligation contained in this Agreement or the Stock Acquisition Agreement shall not exceed each Shareholder's pro rata share (based upon his or her ownership in the Company at Closing) of the amount in the Post-Closing Escrow Fund as established pursuant to the Stock Acquisition Agreement (such indemnification to be provided by the Post-Closing Escrow Fund); (ii) the aggregate amount of Damages for which the Shareholders shall indemnify THI hereunder for any Breach of a representation or warranty contained in Section 3.9 and 3.13 or for any claim based upon a fraudulent misrepresentation (to the extent of Damages incurred as a result) shall not exceed each Shareholder's pro rata share of the Purchase Price as established pursuant to the Stock Acquisition Agreement (such indemnification to be provided first by the Post-Closing Escrow Fund)and the shares of THI Common and THI Preferred issued hereunder to such Shareholder and all rights of distribution and/or dividends thereunder; and (iii) THI shall not be entitled to assert any right to indemnification hereunder against the Shareholders until THI's good faith estimate of all Damages for which the Shareholders indemnify THI hereunder and/or under the Stock Acquisition Agreement exceeds $100,000 (the "Indemnification Threshold") at which time THI shall be entitled to reasonable control of indemnification for all Damages which exceed the process of obtaining the Landlord Estoppel Certificates on and after the Closing Date; and provided further that this indemnification shall not apply to Indemnification Threshold (a) any Landlord Estoppel Certificate or lease assignment that the Shareholders fall to obtain as a result of ECCA's failure to consent to any reasonable terms the landlords seek in connection with such Certificate or assignment, or (b) the lease for real property located at 4301 Xxxxxxxxx Xxx., X.X., Xxxxxxxxxx, X.C.; or (j) any liability or obligation arising out of or relating subject to the leasehold interest conveyed to Day, Pattxxxxx & Xhitxxx, X.D., P.C. pursuant to that certain Asset Purchase Agreement dated March 28, 1995 by and between MVS, the Professional Corporation and Day, Pattxxxxx & Xhitxxx, X.D., P.C. The remedies provided in this SECTION 9.02 will not be exclusive of or limit any other remedies that may be available to the Purchaser or the other Indemnified Persons. The Shareholders acknowledge and agree that the execution and delivery of the Management Services Agreements and performance thereunder by the Professional Corporation is a material inducement for the Purchaser to consummate the Contemplated Transactions and that the Purchaser and its Affiliates are relying, and are entitled to rely, on the representations and warranties of the Shareholders herein relating to the Professional Corporationlimitations described above).

Indemnification and Payment of Damages by Shareholders. The Shareholders Jointly and severally will indemnify and hold harmless Buyer, the PurchaserAcquired Companies, and its their respective Representatives, shareholdersstockholders, controlling persons, and Affiliates affiliates (collectively, the "Indemnified Persons") for, and will pay to the Indemnified Persons the amount of of, any loss, liability, claim, damage (including all damages to which such party is entitled under applicable lawsincidental and consequential damages), or expense (including costs of investigation and defense and reasonable attorneys' fees)) or diminution of value, whether or not involving a third-party claim incurred, less the amount of any insurance coverage (less any deductible amount) with respect to any such loss, liability, claim, damage, expense or diminution in value and any reserves with respect thereto reflected on the Closing Financial Statements with respect thereto (collectively, "Damages"), arising, directly or indirectly, from or in connection with: (a) any Breach of any representation or warranty other than those set forth in Section 4.18 hereof made by any of the Shareholders or the Principals in this Agreement or any Schedule attached heretoAgreement, the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by any of the Acquired Companies, Shareholders or the Principals pursuant to this Agreement; (b) any Breach of any representation or warranty made by any of the Shareholders in this Agreement as if such representation Shareholder, any Acquired Company or warranty were made on and as of the Closing Date without giving effect to any supplement to the Schedules attached hereto; (c) any Breach by either of the Shareholders Principal of any covenant or obligation of such Shareholders Shareholder, Acquired Company or Principal set forth in this Agreement; (dc) any product shipped shipped, processed or manufactured by, or any services provided by, any of the Acquired Companies prior to the Closing Date; (e) any matter disclosed in Schedule 3.28; (f) any liability or obligation of any of the Companies as of the Closing Date not reflected on the Closing Date Balance Sheet as it may be adjusted pursuant to the provisions of SECTIONS 2.03(b) and (c); (gd) any claim by any Person for broker's brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any of the Shareholders Shareholder, any Acquired Company or any Company Principal (or any Person acting on their behalf) in connection with any of the Contemplated Transactions; (he) any claim or Proceeding brought against any Acquired Company by Euromin, Inc. or any of its affiliates, attorneys, or representatives, arising out of, related to or in connection with, either directly or indirectly, the Medicaid Investigation; sale and/or purchase of zinc or zinc derivatives, including but not limited to any claim or Proceeding arising out of, related to or in connection with (i) that certain Demand for Arbitration filed with the American Arbitration Association in May 1998 by Euromin, Inc. against U.S. Zinc, or (ii) the alleged breach by U.S. Zinc of Contract no. 2338 by and between U.S. Zinc and Euromin, Inc.; and (f) any liability liability, claim or obligation Proceeding arising out of or relating those certain pledges to the failure The Jewish Federation of Greater Houston and The Jewish Community Center as specified in Part 4.16 of the Shareholders to obtain any consent required in connection with consummation of the Contemplated Transactions including, without limitation, the Landlord Estoppel Certificate and consents contained therein; provided, however, that the Shareholders shall be entitled to reasonable control of the process of obtaining the Landlord Estoppel Certificates on and after the Closing Date; and provided further that this indemnification shall not apply to (a) any Landlord Estoppel Certificate or lease assignment that the Shareholders fall to obtain as a result of ECCA's failure to consent to any reasonable terms the landlords seek in connection with such Certificate or assignment, or (b) the lease for real property located at 4301 Xxxxxxxxx XxxDisclosure Letter., X.X., Xxxxxxxxxx, X.C.; or (j) any liability or obligation arising out of or relating to the leasehold interest conveyed to Day, Pattxxxxx & Xhitxxx, X.D., P.C. pursuant to that certain Asset Purchase Agreement dated March 28, 1995 by and between MVS, the Professional Corporation and Day, Pattxxxxx & Xhitxxx, X.D., P.C. The remedies provided in this SECTION 9.02 will not be exclusive of or limit any other remedies that may be available to the Purchaser or the other Indemnified Persons. The Shareholders acknowledge and agree that the execution and delivery of the Management Services Agreements and performance thereunder by the Professional Corporation is a material inducement for the Purchaser to consummate the Contemplated Transactions and that the Purchaser and its Affiliates are relying, and are entitled to rely, on the representations and warranties of the Shareholders herein relating to the Professional Corporation.

Indemnification and Payment of Damages by Shareholders. The Shareholders Jointly Shareholders, jointly and severally severally, will indemnify and hold harmless the PurchaserBuyer, the Acquired Company, and its Representativestheir respective representatives, shareholders, controlling persons, and Affiliates affiliates (collectively, the "Indemnified Persons") for, and will pay to the Indemnified Persons the amount of of, any loss, liability, claim, damage (including all damages to which such party is entitled under applicable lawsincidental and consequential damages), or expense (including costs of investigation and defense and reasonable attorneys' fees)) or diminution of value, whether or not involving a third-party claim (collectively, "Damages"), arising, directly or indirectly, from or in connection with: (a) any Breach breach of any representation or warranty made by any of the Shareholders Sellers in this Agreement or any Schedule attached hereto, or any other certificate or document delivered by any of the Shareholders Sellers pursuant to this Agreement; (b) any Breach breach of any representation or warranty made by any of the Shareholders Sellers in this Agreement as if such representation or warranty were made on and as of the Closing Date without giving effect to any supplement to the Schedules attached heretoConsummation Date; (c) any Breach breach by either of the Shareholders Sellers of any covenant or obligation obliga- tion of such Shareholders the Sellers in this Agreement; (d) any product shipped or manufactured by, or any services provided by, the Companies Acquired Company prior to the Closing Consummation Date; (e) any matter disclosed in Schedule 3.28; (f) any liability or obligation of any of the Companies as of the Closing Date not reflected on the Closing Date Balance Sheet as it may be adjusted pursuant to the provisions of SECTIONS 2.03(b) and (c); (g) any claim by any Person person for broker's brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any of the Shareholders or any Company Sellers (or any Person person acting on their behalf) in connection with any of the Contemplated Transactions;transactions contemplated herein. (hf) All claims due by Owner will be paid in the Medicaid Investigation; (i) any liability or obligation arising out of or relating to the failure same proportion of the Shareholders to obtain any consent required Purchase price (50% in connection with consummation of the Contemplated Transactions includingstock, without limitation20% in cash and 30% in Note, the Landlord Estoppel Certificate if note is paid off then 50% stock and consents contained therein; provided, however, that the Shareholders shall be entitled to reasonable control of the process of obtaining the Landlord Estoppel Certificates on and after the Closing Date; and provided further that this indemnification shall not apply to (a) any Landlord Estoppel Certificate or lease assignment that the Shareholders fall to obtain as a result of ECCA's failure to consent to any reasonable terms the landlords seek 50% in connection with such Certificate or assignment, or (b) the lease for real property located at 4301 Xxxxxxxxx Xxx., X.X., Xxxxxxxxxx, X.C.; or (j) any liability or obligation arising out of or relating to the leasehold interest conveyed to Day, Pattxxxxx & Xhitxxx, X.D., P.C. pursuant to that certain Asset Purchase Agreement dated March 28, 1995 by and between MVS, the Professional Corporation and Day, Pattxxxxx & Xhitxxx, X.D., P.C. cash). The remedies provided in this SECTION 9.02 Section 9.2 will not be exclusive of or limit any other remedies that may be available to the Purchaser Buyer or the other Indemnified Persons. The Shareholders acknowledge and agree that the execution and delivery of the Management Services Agreements and performance thereunder by the Professional Corporation is a material inducement for the Purchaser to consummate the Contemplated Transactions and that the Purchaser and its Affiliates are relying, and are entitled to rely, on the representations and warranties of the Shareholders herein relating to the Professional Corporation.