Common use of Indemnification by Parent and Merger Sub Clause in Contracts

Indemnification by Parent and Merger Sub. (a) Notwithstanding the Closing and regardless of any investigation at any time made by or on behalf of the Company or of any knowledge or information that the Company may have, the Parent and Merger Sub shall jointly and severally indemnify and fully defend, save and hold harmless the Former Company Stockholders from any Losses arising out of or resulting from any breach of any Parent Covered Representation or the Former Company Stockholders’ enforcement of their rights under this Section 10.3. (b) Notwithstanding anything herein to the contrary: (i) the maximum amount for which Parent and Merger Sub shall be liable with respect to matters covered by Section 10.3(a) hereof shall not exceed, with respect to a claim asserted and noticed in accordance with Section 10.4 and Section 11.6 hereof, as applicable, (A) during the period from and after the Effective Date to the date that is six months after the Effective Date, the number of shares of Parent Common Stock that represents 10% of the aggregate Merger Consideration and (B) during the period after the date that is six months after the Effective Date to the one year anniversary of the Effective Date, the number of shares of Parent Common Stock that represents the lesser of (I) 5% of the aggregate Merger Consideration and (II) the difference of (X) 10% of the aggregate Merger Consideration and (Y) the percentage of the aggregate Merger Consideration as to which Parent has paid or becomes obligated to pay pursuant to indemnification claims made during the period set forth in clause (A) above, such that, in the aggregate, Parent shall not be liable with respect to matters covered by Section 10.3(a) hereof in an amount exceeding 10% of the aggregate Merger Consideration; and (ii) in all cases determining whether there has been a breach of any of the Parent Covered Representations, or in determining the amount of any Losses with respect to such breach, such representations and warranties shall be read without regard to any materiality qualifier (including, without limitation, any reference to Parent Material Adverse Effect) contained therein.

Indemnification by Parent and Merger Sub. (a) Notwithstanding the Closing and regardless of any investigation at any time made by or on behalf of the Company or of any knowledge or information that the Company may haveClosing, the Parent and Merger Sub shall jointly and severally indemnify and fully defend, save and hold harmless the Former Company Stockholders from against any Losses suffered by Stockholders, any Affiliate of the Stockholders, and their respective directors, officers, stockholders, agents and employees (the “Stockholder Indemnitees”) arising out of or resulting from from, or shall pay or become obligated to pay any sum on account of any one or more of the following: (i) any breach of any representation or warranty of Parent Covered Representation or Merger Sub contained in this Agreement or in any certificate delivered to the Former Company Stockholders or Stockholders’ Agent in connection with the Closing; (ii) any failure of Parent or Merger Sub duly to perform or observe any covenant or agreement contained in this Agreement on the part of Parent or Merger Sub to be performed or observed; (iii) the Stockholders’ or Stockholders’ Agent’s enforcement of their its rights under this Section 10.3.15.3; or (iv) any of the matters set forth on Schedule 15.3(a) (b) Notwithstanding anything herein to the contrary: (i) except with respect to Losses relating to Section 7.6 (Capitalization) and Losses alleging fraud (which Losses shall not be subject to any cap or exclusive remedy provision), Parent and Merger Sub shall not have any obligation to indemnify from and against any Losses arising out of or resulting from the maximum matters set forth in Section 15.3(a) hereto to the extent the aggregate amount of Losses for which Parent and Merger Sub shall be liable have actually indemnified the Stockholders with respect to such matters covered by Section 10.3(a) hereof shall not exceed, with respect to a claim asserted and noticed in accordance with Section 10.4 and Section 11.6 hereof, as applicable, (A) during the period from and after the Effective Date to the date that is six months after the Effective Date, the number of shares of Parent Common Stock that represents 10% of the aggregate Merger Consideration and (B) during the period after the date that is six months after the Effective Date to the one year anniversary of the Effective Date, the number of shares of Parent Common Stock that represents the lesser of (I) 5% of the aggregate Merger Consideration and (II) the difference of (X) 10% of the aggregate Merger Consideration and (Y) the percentage of the aggregate Merger Consideration as to which Parent has paid or becomes obligated to pay pursuant to indemnification claims made during the period set forth in clause (A) above, such that, exceeds $10,000,000 in the aggregate, except for Losses relating to or arising from claims relating to Taxes other than Pre-Closing Taxes or Section 7.16 (Tax Matters), which shall be subject to a cap of $15,000,000 (the applicable cap, the “Parent Cap”), it being understood that amounts paid by Parent and Merger Sub up to the Parent Cap shall not be liable the sole and exclusive right and remedy against Parent and Merger Sub for any Losses arising out of any and all claims relating to the subject matter of this Agreement; (ii) except with respect to matters covered by Losses relating to Section 10.3(a7.6 (Capitalization) hereof in an amount exceeding 10% and Losses alleging fraud, no payment with respect to any Losses arising out of any and all claims relating to the subject matter of this Agreement otherwise payable under Section 15.3(a) shall be payable until such time as all such Losses aggregate Merger Considerationat least the Threshold Amount, such that when such Losses exceed the Threshold Amount, the Stockholder Indemnitees shall be indemnified for any and all such Losses from the first dollar of such Losses; and (iiiii) in all cases determining whether there has been a breach of any a representation or warranty by Parent or Merger Sub for purposes of the Parent Covered Representationsthis Section 15.3, or in determining the amount of any Losses with respect to such breach, such representations and warranties shall be read without regard to any materiality qualifier (including, without limitation, any reference to Parent Material Adverse Effect) contained therein.

Indemnification by Parent and Merger Sub. (a) Notwithstanding Parent and Merger Sub, jointly and severally, covenant and agree to indemnify, defend, protect and hold harmless Company and its respective officers, directors, employees, stockholders, assigns, successors and Affiliates (the Closing "COMPANY PARTIES") from, against and regardless in respect of all Losses suffered, sustained, incurred or paid by the Company Parties, in any action or proceeding between Parent or Merger Sub and the Company Parties or between the Company Parties and a third party, in connection with, resulting from or arising out of, directly or indirectly, the inaccuracy of any investigation at representation or the breach of any time made warranty set forth in this Agreement or the nonfulfillment of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or in any agreement or certificate executed and delivered by Parent or on behalf Merger Sub pursuant to this Agreement or in the transactions contemplated hereby. Each of the Company or covenants and agreements of any knowledge or information that the Company may have, the Parent and Merger Sub contained in this Agreement or in any agreement or other document delivered pursuant hereto shall jointly survive the Closing and severally indemnify be enforceable until such covenant or agreement has been fully performed. All of the representations and fully defendwarranties of Parent and Merger Sub contained in this Agreement or in any agreement or other document delivered pursuant hereto shall survive the Closing for six (6) months, save except that the representations and hold harmless warranties in Section 3.14 of this Agreement shall survive until the Former Company Stockholders from any Losses arising out expiration of or resulting from any breach the relevant statute of any Parent Covered Representation or the Former Company Stockholders’ enforcement of their rights under this Section 10.3limitations. (b) Notwithstanding anything herein to In the contrary: (i) the maximum amount for event Stockholder Agent becomes aware of a third-party claim which Stockholder Agent reasonably believes may result in a demand against Parent, Stockholder -50- 51 Agent shall notify Parent and Merger Sub shall be liable with respect to matters covered by Section 10.3(a) hereof shall not exceed, with respect to a of such claim asserted and noticed in accordance with Section 10.4 7.2(c), specifying in reasonable detail the Losses included and Section 11.6 hereofother matters such as are required to be stated in an Officer's Certificate, as applicable, (A) during the period from and after the Effective Date to the date that is six months after the Effective Date, the number of shares of Parent Common Stock that represents 10% of the aggregate Merger Consideration and (B) during the period after the date that is six months after the Effective Date to the one year anniversary of the Effective Date, the number of shares of Parent Common Stock that represents the lesser of (I) 5% of the aggregate Merger Consideration and (II) the difference of (X) 10% of the aggregate Merger Consideration and (Y) the percentage of the aggregate Merger Consideration as to which Parent has paid or becomes obligated to pay pursuant to indemnification claims made during the period set forth in clause (A) above, such that, in the aggregate, Parent shall not be liable with respect entitled, at its expense, to matters covered by Section 10.3(a) hereof participate in an amount exceeding 10% any defense of such claim. Stockholder Agent shall have the aggregate Merger Consideration; and (ii) right in its sole discretion to control the defense of all cases determining whether there has been a breach of such claims and to settle any of the Parent Covered Representations, or in determining the amount of any Losses with respect to such breach, such representations and warranties shall be read without regard to any materiality qualifier (including, without limitation, any reference to Parent Material Adverse Effect) contained thereinclaim for less than $25,000.

Indemnification by Parent and Merger Sub. (a) Notwithstanding In the Closing event Parent or Merger Sub breaches any of its representations, warranties or covenants contained in this Agreement or in any other Transaction Document or other agreement, document or instrument required to be executed pursuant to this Agreement and regardless provided that, as to any claim for breach of any investigation at any time made by representations or on behalf of the Company or of any knowledge or information that the Company may havewarranties, the Parent and Merger Sub shall jointly and severally indemnify and fully defend, save and hold harmless the Former Company Stockholders from any Losses arising out of or resulting from any breach of any Parent Covered Representation or the Former Company Stockholders’ enforcement of Agent makes a written claim for indemnification against Parent within the Survival Period, if applicable, then Parent agrees to indemnify the Stockholders and their rights under this Section 10.3. Affiliates (b) Notwithstanding anything herein to the contrary: (i) the maximum amount for which Parent and Merger Sub shall be liable with respect to matters covered by Section 10.3(a) hereof shall not exceedwhich, with respect to a claim asserted Affiliates, shall exclude the Company and noticed in accordance with Section 10.4 its directors, officers, employees, agents and Section 11.6 hereof, as applicable, (A) during the period from and after the Effective Date to the date that is six months representatives on or after the Effective Date) (the “Stockholder Indemnitees”) from and against all Losses that the Stockholder Indemnitees suffer resulting from or arising out of such breach; provided, the number of shares of Parent Common Stock however, that represents 10% of the aggregate Merger Consideration and (B) during the period after the date that is six months after the Effective Date to the one year anniversary of the Effective Date, the number of shares of Parent Common Stock that represents the lesser of (I) 5% of the aggregate Merger Consideration and (II) the difference of (X) 10% of the aggregate Merger Consideration and (Y) the percentage of the aggregate Merger Consideration as to which Parent has paid or becomes obligated to pay pursuant to indemnification claims made during the period set forth in clause (A) above, such that, in the aggregate, Parent shall not be liable with respect have any obligation to matters covered by Section 10.3(a) hereof in an amount exceeding 10% indemnify Stockholder Indemnitees from and against any Losses resulting from the breach of any representation or warranty of Parent or Merger Sub (as opposed to any covenant of Parent or any post-Closing covenant of the Company) contained in this Agreement (i) until the Stockholder Indemnitees have suffered aggregate Merger Consideration; and Losses by reason of all such breaches in excess of the Threshold, and then only for the amount by which such Losses exceed the Threshold or (ii) to the extent the aggregate amount that Parent has actually indemnified the Stockholder Indemnitees for prior breaches of representations and warranties of Parent or Merger Sub contained in all cases determining whether there has been a this Agreement exceeds $5,000,000. For the avoidance of doubt, any breach of any Parent’s obligations (i) to make the Earnout Payments under Section 4.7 of the Parent Covered Representations, or in determining this Agreement and (ii) to pay the amount of any Losses with respect to such breach, such representations and warranties Working Capital Adjustment in favor of the Seller under Section 4.8(e) of this Agreement shall not be read without regard subject to any materiality qualifier (including, without limitation, any reference to Parent Material Adverse Effect) contained thereinof the limitations set forth in this Section 10.3 of this Agreement.

Indemnification by Parent and Merger Sub. (a) Notwithstanding After the Closing and regardless of any investigation at any time made by or on behalf of the Company or of any knowledge or information that the Company may haveEffective Time, the Members shall be indemnified and held harmless by Parent and Merger Sub shall jointly and severally indemnify and fully defend(collectively, save and hold harmless the Former Company Stockholders from “Member Indemnified Parties”) for any Losses arising out of or resulting from : (i) any inaccuracy or breach of any representation or warranty (without giving effect to any qualification as to materiality (or similar qualifications) contained therein) made by Parent Covered Representation or Merger Sub in the Former Company Stockholders’ enforcement Acquisition Documents; or (ii) the breach of their rights under this Section 10.3any covenant or agreement made by Parent or Merger Sub in the Acquisition Documents. (b) Notwithstanding anything herein to the contrarycontrary contained in this Agreement: (i) the maximum aggregate amount for which of indemnifiable Losses arising out of or resulting from the causes enumerated in Section 10.03(a) that may be recovered from Parent and Merger Sub shall be liable with respect to matters covered by Section 10.3(a) hereof shall not exceed, with respect to a claim asserted and noticed in accordance with Section 10.4 and Section 11.6 hereof, exceed an amount determined as applicable, follows; (A1) during the period from and after the Effective Date to the date that is six months after the Effective Date, the number of shares of Parent Common Stock that represents 10% of the aggregate Merger Consideration and (B) during the period after the date that is six months after the Effective Date to the one year anniversary of the Effective Date, the number of shares of Parent Common Stock that represents the lesser of (I) 5% of the aggregate Merger Consideration and (II) the difference of (X) 10% of the aggregate Merger Consideration and (Y) determine the percentage of ownership of Parent held by the aggregate Merger Consideration as to which Parent has paid or becomes obligated to pay pursuant to indemnification claims made during Members, on a fully diluted basis resulting from the period set forth in clause (A) above, such that, in the aggregate, Parent shall not be liable with respect to matters covered by Section 10.3(a) hereof in an amount exceeding 10% Closing of the aggregate Merger ConsiderationMerger, as of the Closing Date (after considering any Redemption Shares, but not considering any Parent Warrants); (2) subtract the amount determined in Section 10.03(b)(i)(1) above from 1.00, which will represent the percentage ownership of JKA common stock on a fully diluted basis held by JKA stockholders resulting from the Closing of the Merger, as of the Closing Date (after considering and Redemption Shares, but not considering any Parent Warrants); and (3) determine the maximum aggregate amount of indemnifiable Losses that may be recovered from Parent by dividing $10,000,000 by the fractional percentage determined by subsection (2) above. (ii) in all cases determining whether there has been a breach of any of the no indemnification payment by Parent Covered Representations, or in determining the amount of any Losses with respect to such breach, such representations any indemnifiable Losses otherwise payable under Section 10.03(a) and warranties arising out of or resulting from the causes enumerated in Section 10.03(a) shall be read without regard payable until such time as all such indemnifiable Losses shall aggregate to any materiality qualifier more than $500,000, after which time Parent shall be liable in full for all indemnifiable Losses in excess of the first $500,000. (including, without limitation, any reference iii) Any payments made pursuant to Parent Material Adverse Effect10.03(b)(ii) contained thereinshall be paid to the Members in an amount determined by dividing (A) the claim amount by (B) the amount determined in (b)(i)(2) above.

Indemnification by Parent and Merger Sub. (a) Notwithstanding After the Closing and regardless of any investigation at any time made by or on behalf of the Company or of any knowledge or information that the Company may haveEffective Time, the Members shall be indemnified and held harmless by Parent and Merger Sub shall jointly and severally indemnify and fully defend(collectively, save and hold harmless the Former Company Stockholders from “Member Indemnified Parties”) for any Losses arising out of or resulting from : (i) any inaccuracy or breach of any representation or warranty (without giving effect to any qualification as to materiality (or similar qualifications) contained therein) made by Parent Covered Representation or Merger Sub in the Former Company Stockholders’ enforcement Acquisition Documents; or (ii) the breach of their rights under this Section 10.3any covenant or agreement made by Parent or Merger Sub in the Acquisition Documents. (b) Notwithstanding anything herein to the contrarycontrary contained in this Agreement: (i) the maximum aggregate amount for which of indemnifiable Losses arising out of or resulting from the causes enumerated in Section 10.03(a) that may be recovered from Parent and Merger Sub shall be liable with respect to matters covered by Section 10.3(a) hereof shall not exceed, with respect to a claim asserted and noticed in accordance with Section 10.4 and Section 11.6 hereof, exceed an amount determined as applicable, follows; (A1) during the period from and after the Effective Date to the date that is six months after the Effective Date, the number of shares of Parent Common Stock that represents 10% of the aggregate Merger Consideration and (B) during the period after the date that is six months after the Effective Date to the one year anniversary of the Effective Date, the number of shares of Parent Common Stock that represents the lesser of (I) 5% of the aggregate Merger Consideration and (II) the difference of (X) 10% of the aggregate Merger Consideration and (Y) determine the percentage of ownership of Parent held by the aggregate Merger Consideration as to which Parent has paid or becomes obligated to pay pursuant to indemnification claims made during Members, on a fully diluted basis resulting from the period set forth in clause (A) above, such that, in the aggregate, Parent shall not be liable with respect to matters covered by Section 10.3(a) hereof in an amount exceeding 10% Closing of the aggregate Merger ConsiderationMerger, as of the Closing Date (after considering any Redemption Shares, but not considering any Parent Warrants); (2) subtract the amount determined in Section 10.03(b)(i)(1) above from 1.00, which will represent the percentage ownership of JKA common stock on a fully diluted basis held by JKA stockholders resulting from the Closing of the Merger, as of the Closing Date (after considering and Redemption Shares, but not considering any Parent Warrants); and (3) determine the maximum aggregate amount of indemnifiable Losses that may be recovered from Parent by dividing $10,000,000 by the fractional percentage determined by subsection (2) above. 65 (ii) in all cases determining whether there has been a breach of any of the no indemnification payment by Parent Covered Representations, or in determining the amount of any Losses with respect to such breach, such representations any indemnifiable Losses otherwise payable under Section 10.03(a) and warranties arising out of or resulting from the causes enumerated in Section 10.03(a) shall be read without regard payable until such time as all such indemnifiable Losses shall aggregate to more than $500,000, after which time Parent shall be liable in full for all indemnifiable Losses in excess of the first $500,000. (iii) Any payments made pursuant to Section 10.03(b)(ii) shall be paid to the Members in an amount determined by dividing (A) the claim amount by (B) the amount determined in Section 10.03(b)(i)(2) above. (c) In no event shall the Members be entitled to indemnification pursuant to this Article X for Losses for which they are compensated through the post closing adjustment mechanism in Section 2.03 hereof. In addition, the exclusion of the first $500,000 of Losses in Section 10.03(b)(ii) shall not apply to reduce the Losses of the Company in connection with any materiality qualifier (including, without limitation, any reference to Parent Material Adverse Effect) contained thereinExpense Excess.