Common use of Indemnification by Acquiror Clause in Contracts

Indemnification by Acquiror. (a) Subject to Section 11.1, from and after the Closing until the termination of the Survival Period, Acquiror agrees to indemnify and fully defend, save and hold each holder of Common Stock, In-the-Money Options or Warrants and their respective directors, officers, agents and employees (the “Stockholder Indemnitees”) harmless if any Stockholder Indemnitee shall at any time or from time to time suffer any damage, liability, loss, cost, expense (including all reasonable attorneys’ fees and expenses), deficiency, interest, penalty, impositions, assessments or fines (collectively, “Stockholder Losses”) arising out of or resulting from, or shall pay or become obligated to pay any sum on account of (i) any breach of any representation or warranty of the Acquiror or Merger Sub contained in this Agreement or in any certificate delivered to the Company by Acquiror or Merger Sub at the Closing, and (ii) any breach of any covenant to be performed by Acquiror or Merger Sub prior to the Closing pursuant to this Agreement. (b) (i) Notwithstanding any other provision of this Agreement, the Stockholder Indemnitees shall have no right to any payment under Section 11.3(a) unless the aggregate amount to which all Stockholder Indemnitees are entitled by reason of all such claims under Section 11.3(a) exceeds the Basket Amount, it being understood that once the Basket Amount is exceeded, the aggregate amount of all such claims shall be payable from the first dollar of Stockholder Losses; provided, however, the Basket Amount shall not be applicable with respect to any claim for Stockholder Losses arising out of or resulting from any untruth or inaccuracy in the representations and warranties set forth in Sections 3.1 and 3.2, and the Stockholder Indemnitees shall be entitled to payment of the aggregate amount of all such claims from the first dollar of Stockholder Losses.

Indemnification by Acquiror. (a) Subject to Section 11.1, from and after the Closing until the termination of the Survival Periodlimitations set forth herein, Acquiror agrees to indemnify and fully defendhold harmless each Target Indemnitee from and against any and all Losses asserted against, save and hold each holder of Common Stockimposed upon, In-the-Money Options or Warrants and their respective directors, officers, agents and employees (the “Stockholder Indemnitees”) harmless if any Stockholder incurred by such Target Indemnitee shall at any time or from time to time suffer any damage, liability, loss, cost, expense (including all reasonable attorneys’ fees and expenses), deficiency, interest, penalty, impositions, assessments or fines (collectively, “Stockholder Losses”) arising which arise out of or resulting from, or shall pay or become obligated to pay any sum on account of in connection with: (i) any inaccuracy in, or any breach of of, any representation or warranty of the Acquiror or Merger Sub contained in Article IV of this Agreement, or in any certificate, instrument, document or agreement delivered by or on behalf of Acquiror or Merger Sub pursuant to or in connection with this Agreement or in any certificate delivered to connection with the Company by Acquiror or Merger Sub at the Closing, and transactions contemplated hereby; (ii) any a breach of any covenant or agreement to be performed by Acquiror or Merger Sub prior to the Closing pursuant to this Agreement or in any certificate, instrument, document or agreement document delivered pursuant to or in connection with this Agreement; and (iii) the failure by Acquiror or Merger Sub to perform any covenant, agreement, obligation or undertaking of it in this Agreement or in any certificate, instrument, document or agreement delivered by Acquiror or Merger Sub pursuant to or in connection with this Agreement. (b) (i) Notwithstanding any other provision of The maximum amount the Target Indemnitees may recover from Acquiror pursuant to the indemnification obligations set forth in this Agreement, the Stockholder Indemnitees Section 9.4 for Losses shall have no right to any payment under Section 11.3(a) unless be limited in the aggregate amount to which all Stockholder Indemnitees are entitled by reason of all such claims under Section 11.3(a) exceeds the Basket Amounttotal Earn-Out Payments, it being understood that once the Basket Amount is exceeded, the aggregate amount of all such claims shall be payable from the first dollar of Stockholder Losses; provided, however, the Basket Amount that such limitation shall not be applicable with respect to any claim for Stockholder Losses arising out of incurred due to fraud, intentional misrepresentation, willful misconduct or resulting from any untruth willful concealment by Acquiror or inaccuracy in the representations and warranties set forth in Sections 3.1 and 3.2, and the Stockholder Indemnitees shall be entitled to payment of the aggregate amount of all such claims from the first dollar of Stockholder LossesMerger Sub.

Indemnification by Acquiror. (a) Subject to Section 11.1, from and after the Closing until the termination of the Survival Period, Acquiror agrees to indemnify and fully defend, save and hold each holder of Common Stock, In-the-Money Options Shareholder against Damages incurred or Warrants and their respective directors, officers, agents and employees (the “Stockholder Indemnitees”) harmless if any Stockholder Indemnitee shall at any time or from time to time suffer any damage, liability, loss, cost, expense (including all reasonable attorneys’ fees and expenses), deficiency, interest, penalty, impositions, assessments or fines (collectively, “Stockholder Losses”) arising out of or resulting from, or shall pay or become obligated to pay any sum on account sustained by Shareholder as a result of (ia) any breach of any representation term, provision, covenant or warranty of the Acquiror or Merger Sub agreement contained in this Agreement by Acquiror or Merger Sub; (b) any inaccuracy in any certificate delivered to of the Company representations or warranties made by Acquiror or Merger Sub at the Closing, and in Article III of this Agreement; (iic) any breach loss, claim or obligation arising from or related to the business or operation of the Company conducted after the Closing Date (but except for the effect, damage or loss upon such business or operation arising from or related to any covenant to be performed claim for Damages asserted under Section 7.1); or (d) any inaccuracy or misrepresentation in any certificate or other document or instrument delivered by Acquiror or Merger Sub prior to the Closing pursuant to this Agreement. (b) (i) Notwithstanding in accordance with any other provision of this Agreement, . The obligations of Acquiror as set forth in this Section shall be subject to and limited by the Stockholder Indemnitees following: (a) No claim for Damages shall have no right to any payment under Section 11.3(a) unless be made until the aggregate amount to which all Stockholder Indemnitees are entitled by reason of all such claims under Section 11.3(a) exceeds the Basket Amount, it being understood that once the Basket Amount is exceeded, the aggregate cumulative amount of all such claims Damages shall equal or exceed $10,000 (the "Threshold") at which time a claim for Damages in excess thereof can be payable from the first made on a dollar of Stockholder Lossesfor dollar basis; provided, however, the Basket Amount shall not be applicable with respect to any claim for Stockholder Losses arising out of or resulting from any untruth or inaccuracy in the representations and warranties set forth in Sections 3.1 and 3.2, and the Stockholder Indemnitees shall be entitled to payment of the maximum aggregate amount of all such claims Acquiror's liability hereunder shall not exceed the Merger Consideration. Such limitations, however, shall not apply to any Damages resulting from fraudulent actions, intentional misrepresentations, breaches of covenants; and (b) Shareholder shall give written notice to Acquiror stating specifically the first dollar of Stockholder Lossesbasis for the claim for Damages, the amount thereof and, if relating to a pending claim by a third party to which Acquiror is entitled to indemnification, shall tender defense thereof to Acquiror as provided in Section 7.3.

Indemnification by Acquiror. (a) Subject to Section 11.1, from From and after the Closing until the termination of the Survival PeriodClosing, Acquiror agrees to indemnify and fully defend--------------------------- shall indemnify, save defend and hold each holder of Common StockSeller and its Affiliates, In-the-Money Options or Warrants and their respective directors, officers, agents representatives, employees and employees (the “Stockholder Indemnitees”) agents, harmless if from and against any Stockholder Indemnitee shall at any time or from time to time suffer any damageand all claims, liabilityactions, losssuits, costdemands, expense assessments, judgments, losses, liabilities, damages, costs, royalties, payments, license fees and expenses (including all reasonable interest, penalties, attorneys’ ' fees, accounting fees and expenses), deficiency, interest, penalty, impositions, assessments or fines investigation costs) (collectively, “Stockholder "Losses”") resulting from or arising out of or resulting from, or shall pay or become obligated to pay any sum on account of (ia) any breach of any representation or warranty of the Acquiror or Merger Sub contained in this Agreement herein or in any certificate delivered by Acquiror pursuant hereto (provided that Seller properly notifies Acquiror of the claim that such representation or warranty has been breached and such notice is given by Seller in writing prior to the Company by Acquiror expiration or Merger Sub at termination of the Closingapplicable representation or warranty), and or (iib) any breach of any covenant to be performed of Acquiror contained herein, which covenant requires performance by Acquiror after the Closing, (c) any of the Assumed Liabilities, or Merger Sub prior (d) the operation by Acquiror of the Business or the ownership or use by Acquiror of the Purchased Assets after the Closing, except to the Closing pursuant extent Seller is obligated to this Agreement. (b) (i) Notwithstanding any other provision of this Agreement, the Stockholder Indemnitees shall have no right to any payment under Section 11.3(a) unless the aggregate amount to which all Stockholder Indemnitees are entitled by reason of all such claims under Section 11.3(a) exceeds the Basket Amount, it being understood that once the Basket Amount is exceeded, the aggregate amount of all such claims shall be payable from the first dollar of Stockholder Losses; provided, however, the Basket Amount shall not be applicable indemnify Acquiror with respect to any claim for Stockholder Losses arising out of or resulting from any untruth or inaccuracy in the representations and warranties set forth in Sections 3.1 and 3.2, and the Stockholder Indemnitees shall be entitled to payment of the aggregate amount of all such claims from the first dollar of Stockholder Lossesthereto.

Indemnification by Acquiror. Acquiror covenants and agrees to defend, indemnify, and hold harmless the Shareholders and their respective agents, advisors, representatives and Affiliates (collectively, the "Shareholder Indemnitees") from and against any and all Losses resulting from or arising out of: (a) Subject to Section 11.1, from and after the Closing until the termination of the Survival Period, Acquiror agrees to indemnify and fully defend, save and hold each holder of Common Stock, In-the-Money Options or Warrants and their respective directors, officers, agents and employees (the “Stockholder Indemnitees”) harmless if any Stockholder Indemnitee shall at any time or from time to time suffer any damage, liability, loss, cost, expense (including all reasonable attorneys’ fees and expenses), deficiency, interest, penalty, impositions, assessments or fines (collectively, “Stockholder Losses”) arising out of or resulting from, or shall pay or become obligated to pay any sum on account of (i) any breach of material inaccuracy in any representation or warranty of the by Acquiror made or Merger Sub contained in this the Merger Agreement or in any certificate delivered to the Company by Acquiror or Merger Sub at the Closing, and (ii) any breach of any covenant to be performed by Acquiror or Merger Sub prior to the Closing pursuant to this Agreement.connection therewith; (b) (i) Notwithstanding any failure of Acquiror to perform any covenant or agreement made or contained in the Merger Agreement or in connection therewith or to fulfill any other provision obligation in respect thereof; and (c) the operation of the Company following the Closing; provided, however, that in the case of clause (b) or (c), Acquiror shall not be obligated to indemnify the Shareholder Indemnitees to the extent such Losses are attributable to acts or circumstances occurring prior to the Closing, or constitute Losses for which the Shareholders are required to indemnify Acquiror Indemnitees under this Agreement, the Stockholder . Shareholder Indemnitees shall have no right be entitled to any payment under Section 11.3(a) unless indemnification pursuant to this Agreement only if the aggregate amount Losses incurred or sustained by all Shareholder Indemnitees exceed One Hundred Thousand Dollars ($100,000). In the event that the aggregate Losses incurred or sustained by all Shareholder Indemnitees exceed One Hundred Thousand Dollars ($100,000), then the Shareholder Indemnitees shall be entitled to which all Stockholder Indemnitees are entitled by reason of indemnification for all such claims under Section 11.3(a) exceeds the Basket AmountLosses, it being understood that once the Basket Amount is exceeded, the aggregate amount of all such claims shall be payable from including the first dollar One Hundred Thousand Dollars ($100,000) of Stockholder such Losses; provided, however, that the Basket Amount aggregate Losses paid to the Shareholder Indemnitees hereunder shall not be applicable with respect to any claim for Stockholder Losses arising out of or resulting from any untruth or inaccuracy in the representations and warranties set forth in Sections 3.1 and 3.2, and the Stockholder Indemnitees shall be entitled to payment of the aggregate amount of all such claims from the first dollar of Stockholder Lossesexceed Four Million Five Hundred Thousand Dollars ($4,500,000).

Indemnification by Acquiror. (a) Subject to Section 11.1the limitations set forth in Sections 7.1, 7.4 and 7.6 hereof, from and after the Closing until the termination of the Survival PeriodDate, Acquiror agrees to shall save, defend, indemnify and fully defend, save hold harmless the Stockholders and hold each holder the holders of Common Stock, In-the-Money Options or Warrants and their respective directorsAffiliates and the respective Representatives, officerssuccessors and assigns of each of the foregoing (collectively, agents and employees (the “Stockholder IndemniteesIndemnified Parties”) harmless if from and against any Stockholder Indemnitee shall at any time or from time and all Losses to time suffer any damage, liability, loss, cost, expense (including all reasonable attorneys’ fees and expenses), deficiency, interest, penalty, impositions, assessments or fines (collectively, “Stockholder Losses”) the extent arising out of or resulting from, from (a) the inaccuracy or shall pay breach as of the date of this Agreement or become obligated to pay any sum on account as of (i) any breach the Closing Date of any representation or warranty of the Acquiror or Merger Sub contained in or made pursuant to this Agreement or in any Ancillary Agreement or any certificate or instrument delivered by Acquiror or Sub in accordance herewith or therewith, and (b) any breach of any covenant or agreement by Acquiror or Sub contained in this Agreement or in any certificate delivered to Ancillary Agreement of which the Company by Acquiror or Merger Sub at the Closing, and (ii) any breach of any covenant to be performed by Acquiror or Merger Sub Stockholder Indemnified Parties are unaware prior to the Closing pursuant to this Agreement. (b) (i) Notwithstanding Closing; provided, that notwithstanding any other provision hereof, in no event shall Losses include any punitive, consequential, indirect or special damages, including, lost profits, business interruption and loss of business opportunities or goodwill, subject to the last sentence of this AgreementSection 7.3. This exclusion of any such consequential, indirect or special damages shall apply to any action, whether the action in which recovery of damages is sought is based on contract, tort (including sole, concurrent or other negligence or strict liability), statute or otherwise. To the extent permitted by Law, any statutory remedies which are inconsistent with this Section 7.3 are waived. Notwithstanding anything to the contrary, the Stockholder Indemnitees shall have no right to any payment under Section 11.3(a) unless limitations described in the aggregate amount to which all Stockholder Indemnitees are entitled by reason of all such claims under Section 11.3(a) exceeds the Basket Amount, it being understood that once the Basket Amount is exceeded, the aggregate amount of all such claims shall be payable from the first dollar of Stockholder Losses; provided, however, the Basket Amount foregoing proviso shall not be applicable apply with respect to any claim for Stockholder Losses arising out of or resulting from any untruth or inaccuracy in the representations and warranties set forth in Sections 3.1 and 3.2, and the Stockholder Indemnitees shall be entitled to payment of the aggregate amount of all such claims from the first dollar of Stockholder LossesThird Party Claims.

Indemnification by Acquiror. (a) Subject to Section 11.1, from and after the Closing until the termination of the Survival Period, Acquiror hereby agrees to indemnify and fully defend, save and hold each holder of Common Stock, In-the-Money Options or Warrants the Shareholders and any of their respective directors, officers, agents directors and employees affiliates (the “Stockholder Indemnitees”"Target Indemnified Parties", and together with the Acquiror Indemnified Parties, the "Indemnified Parties") harmless if against all Losses incurred directly or indirectly by such Shareholders and any Stockholder Indemnitee shall at any time or from time to time suffer any damageof their respective officers, liability, loss, cost, expense (including all reasonable attorneys’ fees directors and expenses), deficiency, interest, penalty, impositions, assessments or fines (collectively, “Stockholder Losses”) arising out of or resulting from, or shall pay or become obligated to pay any sum on account affiliates as a result of (i) any inaccuracy or breach of any representation or warranty of the Acquiror contained herein, or Merger Sub contained in this Agreement or in (ii) any certificate delivered to the Company failure by Acquiror or Merger Sub at the Closing, and (ii) any breach of to perform or comply with any covenant to be performed by Acquiror or Merger Sub prior to contained herein. Notwithstanding the Closing pursuant to this Agreement. (b) (i) Notwithstanding any other provision of this Agreementforegoing, the Stockholder Indemnitees Target shall have no right to any payment under indemnification pursuant to this Article IX unless and until Securityholder Certificates (as defined in Section 11.3(a9.3(d)(ii) unless below) identifying aggregate Losses in excess of the aggregate amount Deductible Amount have been delivered to Acquiror, in which all Stockholder Indemnitees are event Target shall be entitled by reason of to recover all such claims under Section 11.3(a) exceeds amounts in excess of the Basket Deductible Amount; provided that, it being understood that once notwithstanding the Basket Amount is exceededforegoing, the aggregate amount of all such claims Target shall be payable from the entitled to indemnification on a first dollar basis, without regard to whether the Deductible Amount has been exceeded (i) any breach by Acquiror of Stockholder Losses; provided, however, the Basket Amount shall not be applicable with respect to any claim for Stockholder Losses arising out of or resulting from any untruth or inaccuracy in the representations and warranties set forth contained in Sections 3.1 and 3.2, and the Stockholder Indemnitees shall be entitled to payment Section 5.6 or (ii) any fraudulent breaches of the aggregate amount of all such claims from representations, warranties or covenants made by Acquiror in connection with this Agreement or the first dollar of Stockholder LossesMerger.