Common use of Indemnification by Indemnifying Stockholders Clause in Contracts

Indemnification by Indemnifying Stockholders. Subject to the other terms and conditions of this Article IX, the Indemnifying Stockholders, severally and not jointly (in accordance with their Indemnifying Pro Rata Shares), shall indemnify and defend each of Parent and its Affiliates (including the Company and the Surviving Corporation) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.21, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VII), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VII, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to Article VII); (c) any claim made by any Stockholder relating to such Person’s rights with respect to the Merger Consideration, or the calculations and determinations set forth on the Consideration Statement; or (d) any amounts paid to the holders of Dissenting Shares, including any interest required to be paid thereon, that are in excess of what such holders would have received hereunder had such holders not been holders of Dissenting Shares. Any Losses required to be paid or reimbursed to Parent Indemnitees by the Indemnifying Stockholders under this Section 9.02 shall be limited to the Merger Share Consideration and a value no greater than $2.4 million.

Indemnification by Indemnifying Stockholders. Subject to the other terms and conditions of this Article IX, including the Cap (as defined below), the Indemnifying Stockholders, severally and not jointly (in accordance with their Indemnifying Pro Rata Shares), shall indemnify and defend each of Parent and its Affiliates (including the Company and the Surviving Corporation) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.21, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VII), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VII, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to Article VII); (c) any claim made by any Stockholder relating to such Person’s rights with respect to the Merger Consideration, or the calculations and determinations set forth on the Consideration Statement; or (d) any amounts paid to the holders of Dissenting Sharesdissenting shareholders, including any interest required to be paid thereon, that are in excess of what such holders would have received hereunder had such holders not been holders of Dissenting dissenting Shares. Any Notwithstanding any inconsistent provision in this Agreement, the aggregate amount of all Losses required to be paid or reimbursed to Parent Indemnitees by for which the Indemnifying Stockholders under shall be liable pursuant to this Section 9.02 shall be limited to not exceed the fair market value of the Merger Share Consideration as of the Closing Date (the “Cap”). Notwithstanding any inconsistent provision in this Agreement, the Indemnifying Stockholders shall not be liable for any Losses pursuant to this Section 9.02 until such Losses, in aggregate, exceed the sum of $100,000 (the “Basket”). The foregoing limitations shall apply regardless of the particular theory of liability, whether based in contract, tort or otherwise, and a value no greater than $2.4 millionshall constitute such the Indemnifying Stockholders sole and exclusive liability under this Agreement.

Indemnification by Indemnifying Stockholders. Subject to the other terms and conditions of this Article IX, including the Cap (as defined below), the Indemnifying Stockholders, severally and not jointly (in accordance with their Indemnifying Pro Rata Shares), shall indemnify and defend each of Parent and its Affiliates (including the Company and the Surviving Corporation) and their respective Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to or by reason of:: Table Of Contents 26 (a) any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than in respect of Section 3.21, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VII), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VII, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to Article VII); (c) any claim made by any Stockholder relating to such Person’s rights with respect to the Merger Consideration, or the calculations and determinations set forth on the Consideration Statement; or (d) any amounts paid to the holders of Dissenting Sharesdissenting shareholders, including any interest required to be paid thereon, that are in excess of what such holders would have received hereunder had such holders not been holders of Dissenting dissenting Shares. Any The aggregate amount of all Losses required for which the Indemnifying Stockholders shall be liable pursuant to be paid or reimbursed to Parent Indemnitees by this Section 9.02 shall not exceed the fair market value of the Merger Share Consideration as of the Closing Date (the “Cap”). Notwithstanding any inconsistent provision in this Agreement, the liability of the Indemnifying Stockholders under this Section 9.02 Agreement shall be limited to the conveyance of shares of Parent Common Stock received as Merger Share Consideration by such the Indemnifying Stockholders, which such shares shall be surrendered to Parent and a value no greater than $2.4 millioncancelled in satisfaction of any such liability. The foregoing limitations shall apply regardless of the particular theory of liability, whether based in contract, tort or otherwise, and shall constitute such the Indemnifying Stockholders sole and exclusive liability under this Agreement.

Indemnification by Indemnifying Stockholders. Subject to (a) From and after the other terms and conditions of this Article IXClosing, the each Indemnifying Stockholders, Stockholder shall severally (and not jointly (jointly) and in accordance with proportion to their Indemnifying respective Indemnity Pro Rata Shares)Share, shall hold harmless and indemnify and defend each of Parent and its Affiliates (including the Company and Surviving Corporation after the Surviving CorporationClosing) and each of their respective Representatives officers, directors, employees, successors and assigns (collectively, the “Parent IndemniteesIndemnified Parties”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, against any and all Losses incurred or sustained by, or imposed upon, the Parent Indemnitees based upon, arising out of, with respect to of or by reason ofresulting from: (ai) any breach of or inaccuracy in any representation or warranty made by the Company pursuant to Article III or the certificate delivered by the Company pursuant to Section 6.2(g)(i); (ii) any breach of any covenant or agreement made by the Company under this Agreement that was to be performed by the Company at or prior to the Closing; (iii) any inaccuracy in the Consideration Schedule; (iv) any Closing Indebtedness or breach Unpaid Transaction Expenses to the extent not either (A) fully discharged prior to the Closing or (B) accounted for in the determination of Aggregate Closing Parent Shares; (v) Indemnified Taxes to the extent not either (A) fully discharged prior to the Closing, or (B) accounted for in the determination of Aggregate Closing Parent Shares; (vi) any exercise of dissenters’ rights or rights of appraisal by any Company Stockholder or former Company Stockholder, including (i) in the event any consideration is determined to be payable to any holder of Dissenting Shares pursuant to the DGCL, the excess of such consideration paid to holders of Dissenting Shares over the consideration that would have otherwise been payable to such holder pursuant to Section 1.5 upon the exchange of such Dissenting Shares if such holder had not exercised his, her or its right to dissent to the Merger pursuant to Section 262 of the representations DGCL and (ii) all Losses incurred in connection with the proceedings related to any such exercise of dissenters’ rights or warranties rights of appraisal and resolution thereof; or (vii) any Action brought by shareholders of the Company contained or in the name of the Company against the Company and/or their respective directors relating to the transactions contemplated by this Agreement, including the Merger. (b) Notwithstanding anything to the contrary in this Agreement or Agreement, the right to indemnification under this Section 8.2 is subject to the following limitations; provided, however, that none of the limitations set forth in any certificate or instrument delivered this Article VIII shall apply in the case of fraud by or on behalf of the Company pursuant Company: (i) Indemnifying Stockholders shall not have any obligation to this Agreement indemnify any Parent Indemnified Party from and against any Losses arising out of breaches or inaccuracies indemnified under Section 8.2(a)(i) (other than in respect as a result of Section 3.21, it being understood that the sole remedy for any such a breach of or inaccuracy in a Company Fundamental Representation) until the Parent Indemnified Parties have suffered aggregate Losses by reason of such breaches or breach thereof inaccuracies in excess of $1,000,000 (the “Minimum Amount”), at which point the full amount of Losses of the Parent Indemnified Parties shall be recoverable from the first dollar of Loss. For the avoidance of doubt, the rights of Parent Indemnified Parties to indemnification pursuant to Article VII), Section 8.2(a)(i) as a result of the date such representation a breach of or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will a Company Fundamental Representation shall not be determined with reference subject to such specified date);the Minimum Amount. (bii) any breach The maximum amount which the Parent Indemnified Parties may recover arising out of breaches or non-fulfillment of any covenant, agreement or obligation to be performed by the Company pursuant to this Agreement inaccuracies described in Section 8.2(a)(i) (other than any as a result of a breach of or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation inaccuracy in Article VII, it being understood that the sole remedy for any such breach, violation or failure a Company Fundamental Representation) shall be pursuant an aggregate amount equal to Article VII$15,000,000 (the “Cap”);. For the avoidance of doubt, the Parent Indemnified Parties’ right to indemnification under Section 8.2(a)(i) as a result of a breach of or inaccuracy in a Company Fundamental Representation shall not be subject to the Cap. (c) any Any finally determined claim made for indemnification under this Section 8.2 shall be satisfied from (i) Stock Converting Holders by any Stockholder relating to cancelling such Person’s rights with respect Stock Converting Holders’ Parent Series A-2 Preferred Shares using a value of such Parent Series A-2 Preferred Shares equal to the Merger ConsiderationAdjusted Parent Stock Price, or and (ii) Indemnifying Stockholders that received the calculations Per Share Closing Cash Consideration pursuant to Section 1.5(c) in the form of a cash payment, in each case, in an amount not to exceed each such Indemnifying Stockholder’s Indemnity Pro Rata Share of such Losses. Upon such final determination, Parent may cancel and determinations set forth extinguish such Parent Series A-2 Preferred Shares on the Consideration Statement; orstock ledger and books and records of Parent, and upon notice of such cancellation, such Stock Converting Holder shall surrender to Parent such Parent Series A-2 Preferred Shares without any consideration payable therefor. (d) The per share price to be used to value Parent Series A-2 Preferred Shares in order to determine the amount of Losses deemed to be satisfied by such Parent Series A-2 Preferred Shares (either with respect to Parent Series A-2 Preferred Shares to be cancelled by Parent pursuant to Section 8.2(c) or to be issued to Company Indemnified Parties pursuant to Section 8.3(b)(iii)) (the “Adjusted Parent Stock Price”) (i) with respect to any amounts indemnifiable Loss paid and satisfied within one (1) year from the Closing Date and prior to the holders consummation of Dissenting Sharesa Parent IPO, including shall be the Parent Preferred Per Share Price, (ii) with respect to any interest required indemnifiable Loss paid and satisfied from and after the date that is one (1) year from the Closing Date and prior to the consummation of a Parent IPO, the fair market value of the Parent Series A-2 Preferred Shares as determined by an independent third party valuation expert selected by the board of directors of Parent, and (iii) with respect to any indemnifiable Loss paid and satisfied from and after the consummation of a Parent IPO, shall be paid thereonadjusted to an amount equal to the average closing price of a share of Parent Common Stock on the applicable nationally recognized stock exchange as of the fifteen (15) trading day period ending on the last trading day preceding the date of submission of a Third Party Claim Notice or Notice of Claim, as applicable; provided, that are the Adjusted Parent Stock Price shall also be equitably adjusted (without duplication to any other equitable adjustment contemplated by this Agreement) to reflect any conversion of Parent Series A-2 Preferred Shares into shares of Parent Common Stock other than on a one-for-one basis and/or any stock splits or reverse stock splits which occur in excess of what connection with such holders would Parent IPO. (e) Notwithstanding anything in this Agreement to the contrary, but subject to Section 8.2(b), in no event shall any Indemnifying Stockholder have received hereunder had such holders not been holders of Dissenting Shares. Any Losses required any liability pursuant to be paid or reimbursed to Parent Indemnitees by the Indemnifying Stockholders under this Section 9.02 shall be limited to the Merger Share Consideration and a value no 8.2 greater than $2.4 millionthe amount of consideration actually received by such Indemnifying Stockholder pursuant to Section 1.5 of this Agreement.