Common use of Indemnification by Parent and Seller Clause in Contracts

Indemnification by Parent and Seller. (a) Parent and Seller jointly and severally agree to indemnify in full Buyer and its officers, directors, employees, agents, stockholders and subsidiaries (collectively, the "Buyer Indemnified Parties") and hold them harmless from and against any loss, liability, damage, expense or cost (including, without limitation, costs of investigation and defense, and reasonable legal and other professional fees and expenses but not including consequential damages, punitive, special or indirect damages), as incurred and whether or not involving a Third Party Action (as defined in Section 11.07(a)), which any of the Buyer Indemnified Parties may suffer, sustain or become subject to, as a direct or indirect result of, or arising from or in connection with any of the following (collectively, "Buyer Losses"): (i) any breach or inaccuracy in any of the representations and warranties of Parent or Seller contained in this Agreement, the Ancillary Agreements, or in any exhibits, schedules, certificates or other documents delivered or to be delivered by or on behalf of Parent or Seller pursuant to the terms hereof or thereof or otherwise referenced or incorporated in this Agreement (collectively, the "Seller Related Documents"), it being understood and agreed that for all purposes under this Article XI any such breach of a representation or warranty shall be determined without regard to the effect of any qualification set forth therein relating to materiality or a Material Adverse Effect; provided that Buyer Losses resulting from a breach or inaccuracy of Section 4.25 shall only include any costs or expenses incurred to comply with the requirements of any Environmental Law or any Order under or pursuant to any Environmental Law, except to the extent Buyer or another party after the Closing has contributed to the condition or the circumstances, including any Releases, forming the basis of any such Buyer Losses. (ii) any breach of, or failure to perform, any covenant or agreement of Parent or Seller contained in this Agreement or any of the Seller Related Documents; (iii) any product or component thereof manufactured or shipped, or any services provided, by the Business in whole or in part prior to the Closing (including, without limitation, any product liability claims); (iv) any product recall required by any Governmental Authority with respect to any product or component thereof manufactured or shipped by the Business in whole or in part prior to the Closing; (v) the Division Retained Assets (as defined in the Contribution Agreement), the Division Retained Liabilities (as defined in the Contribution Agreement) or the Seller Entity Assumed Liabilities (as defined in the Intercompany Agreement); and (vi) any liabilities, responsibilities or obligations of Parent or Seller for severance payments, severance benefits or other payments, benefits, costs and expenses of any kind or nature in respect of terminated employees pursuant to or incurred in connection with the actions contemplated by Sections 8.02(a) or 8.02(b); and (vii) any liability of any of the Seller Entities for Taxes of any person other than any of the Seller Entities, (A) under Treasury regulations Section 1.1502-6 (or any similar provision of state, local or foreign law); (B) as a result of an express or implied obligation to indemnify any other person, provided, however, in each case such Taxes are attributable to a taxable period ending on or before the Closing Date. Notwithstanding the foregoing, Parent and Seller shall not indemnify and hold harmless the Buyer Indemnified Parties from any liability for Taxes directly resulting from any action taken after the Closing Date by Buyer or any of its affiliates (other than any such action expressly required or permitted by this Agreement or required by applicable law) (a "Buyer Tax Act"). In addition, notwithstanding any other provision of this Agreement, Parent and Seller shall not 66 indemnify and hold harmless the Buyer Indemnified Parties from any Buyer Losses as a result of the transactions contemplated by this Agreement qualifying as tax-free reorganizations under Section 368 of the Code.

Indemnification by Parent and Seller. (a) Parent and Seller shall, jointly and severally agree to severally, indemnify in full Buyer and hold harmless Purchaser and its successors and their respective shareholders, officers, directors, employeesand agents from and against any and all damages, agentslosses, stockholders obligations, liabilities, claims, encumbrances, penalties, costs, and subsidiaries expenses, including reasonable attorneys' fees (collectivelyand costs and reasonable attorneys' fees in respect of any suit to enforce this provision) (each a "Claim"), arising from or relating to (a) any misrepresentation, breach of warranty, or nonfulfillment of any of the "Buyer Indemnified Parties"covenants or agreements of Seller or Parent in this Agreement or in any document, certificate, or affidavit delivered by Parent or Seller pursuant to the provisions of this Agreement; (b) any liability, obligation, or commitment of any nature (absolute, accrued, contingent, or other) of Seller or Parent or relating to the Acquired Assets or the operation of the Business arising out of transactions entered into or events occurring prior to the Closing and not expressly assumed by Purchaser pursuant to this Agreement; (c) any Environmental Expenses, any Environmental Claims, any Environmental Conditions, or any material violation of Environmental Requirements relating to any time on or before the Closing Date; and (d) any and all actions, suits, investigations, proceedings, demands, assessments, audits, and judgments arising out of any of the foregoing. In addition, Parent and Seller shall jointly and severally, indemnify and hold them Purchaser and Purchaser's lenders, if any, harmless from and against any loss, liabilityclaim, expense, damage, expense or cost liability (including, without limitation, costs of investigation and defense, and including reasonable legal and other professional attorneys' fees and expenses but not including consequential damages, punitive, special or indirect damages), as incurred and whether or not involving a Third Party Action (as defined in Section 11.07(a)), expenses) to which any of Purchaser and/or the Buyer Indemnified Parties Acquired Assets may suffer, sustain or become subject toinsofar as such loss, as a direct or indirect result ofclaim, damage, or arising from liability (or actions in connection with any respect thereof) arises out of the following (collectively, "Buyer Losses"): (i) any breach or inaccuracy in any of the representations and warranties of Parent or Seller contained in this Agreement, the Ancillary Agreements, or in any exhibits, schedules, certificates or other documents delivered or to be delivered by or on behalf of Parent or Seller pursuant to the terms hereof or thereof or otherwise referenced or incorporated in this Agreement (collectively, the "Seller Related Documents"), it being understood and agreed that for all purposes under this Article XI any such breach of a representation or warranty shall be determined without regard to the effect of any qualification set forth therein relating to materiality or a Material Adverse Effect; provided that Buyer Losses resulting from is based upon a breach or inaccuracy of Section 4.25 shall only include any costs or expenses incurred to comply with the requirements of any Environmental Law or any Order under or pursuant to any Environmental Law, except to the extent Buyer or another party after the Closing has contributed to the condition or the circumstances, including any Releases, forming the basis of any such Buyer Losses. (ii) any alleged breach of, or failure to performcomply with any provision of, or to give any notice or make any filing pursuant to, any covenant bulk sales law or agreement of Parent similar statute. Purchaser understands that no notices or Seller contained in this Agreement or any of the Seller Related Documents; (iii) any product or component thereof manufactured or shipped, or any services provided, by the Business in whole or in part prior to the Closing (including, without limitation, any product liability claims); (iv) any product recall required by any Governmental Authority with respect to any product or component thereof manufactured or shipped by the Business in whole or in part prior to the Closing; (v) the Division Retained Assets (as defined in the Contribution Agreement), the Division Retained Liabilities (as defined in the Contribution Agreement) or the Seller Entity Assumed Liabilities (as defined in the Intercompany Agreement); and (vi) any liabilities, responsibilities or obligations of Parent or Seller for severance payments, severance benefits or other payments, benefits, costs and expenses of any kind or nature filings are being made in respect of terminated employees pursuant to or incurred in connection with the actions contemplated by Sections 8.02(a) or 8.02(b); and (vii) any liability of any of the Seller Entities for Taxes of any person other than any of the Seller Entities, (A) Acquired Assets under Treasury regulations Section 1.1502-6 (or any similar provision of state, local or foreign law); (B) as a result of an express or implied obligation to indemnify any other person, provided, however, in each case such Taxes are attributable to a taxable period ending on or before the Closing Date. Notwithstanding the foregoing, Parent and Seller shall not indemnify and hold harmless the Buyer Indemnified Parties from any liability for Taxes directly resulting from any action taken after the Closing Date by Buyer or any of its affiliates (other than any such action expressly required law or permitted by this Agreement or required by applicable law) (a "Buyer Tax Act"). In addition, notwithstanding any other provision of this Agreement, Parent and Seller shall not 66 indemnify and hold harmless the Buyer Indemnified Parties from any Buyer Losses as a result of the transactions contemplated by this Agreement qualifying as tax-free reorganizations under Section 368 of the Codestatute.

Indemnification by Parent and Seller. (a) Parent and Seller shall, jointly and severally agree to severally, indemnify in full Buyer and its Affiliates and each of their respective officers, directors, employees, agentsstockholders, stockholders agents and subsidiaries (collectively, the "Buyer Indemnified Parties") representatives against and hold them harmless from and against (whether in connection with a Third Party Claim or a Direct Claim) any loss, liabilityclaim, damage, expense liability (whether asserted or cost unasserted, absolute or contingent), cost, expense, obligations, judgments, Liens, injunctions, charges, orders, decrees, rulings, dues, assessments, Taxes, fines, penalties, fees and amounts paid in settlement (including, without limitation, costs of investigation and defense, and including reasonable legal and other professional fees and expenses but not including consequential damagesof counsel consistent with Section 11.5(a)(ii)) (each a "Loss" and, punitivecollectively, special or indirect damages), "Losses") as incurred and whether or not involving a Third Party Action (as defined in Section 11.07(a))payable promptly upon written request) by any such indemnified party arising from, which any of the Buyer Indemnified Parties may suffer, sustain or become subject to, as a direct or indirect result of, or arising from or in connection with any of the following (collectively, "Buyer Losses"): or otherwise with respect to (i) subject to Section 13.6, any breach failure of any representation or inaccuracy in any of the representations and warranties warranty of Parent or Seller contained in this Agreement, the Ancillary Agreements, Transaction Agreements or in any exhibits, schedules, certificates or other documents delivered or to be certificate delivered by or on behalf of Parent or Seller pursuant in connection therewith to the terms hereof or thereof or otherwise referenced or incorporated be true and correct in this Agreement all respects (collectively, the "Seller Related Documents"), it being understood and agreed that for all purposes under this Article XI any of such breach right to indemnification, the representations and warranties of a representation or warranty Parent and Seller shall be determined without regard to the effect of deemed not qualified by any qualification set forth references therein relating to materiality generally or to whether or not any breach would result or could reasonably be expected to result in a Buyer Material Adverse Effect or a Business Material Adverse Effect); provided that Buyer Losses resulting from a breach or inaccuracy of Section 4.25 shall only include any costs or expenses incurred to comply with the requirements of any Environmental Law or any Order under or pursuant to any Environmental Law, except to the extent Buyer or another party after the Closing has contributed to the condition or the circumstances, including any Releases, forming the basis of any such Buyer Losses. (ii) any breach of, or failure to perform, of any covenant or agreement obligation of Parent or Seller contained in this Agreement or any of the Seller Related Documents; Transaction Agreements; (iii) any product of the Excluded Liabilities; or component thereof manufactured or shipped, or any services provided, by the Business in whole or in part prior to the Closing (including, without limitation, any product liability claims); (iv) any product recall required by any Governmental Authority with respect to any product the operation or component thereof manufactured or shipped by the Business in whole or in part prior to the Closing; (v) the Division Retained Assets (as defined in the Contribution Agreement), the Division Retained Liabilities (as defined in the Contribution Agreement) or the Seller Entity Assumed Liabilities (as defined in the Intercompany Agreement); and (vi) any liabilities, responsibilities or obligations of Parent or Seller for severance payments, severance benefits or other payments, benefits, costs and expenses of any kind or nature in respect of terminated employees pursuant to or incurred in connection with the actions contemplated by Sections 8.02(a) or 8.02(b); and (vii) any liability of any ownership of the Seller Entities for Taxes of any person other than any of the Seller Entities, (A) under Treasury regulations Section 1.1502-6 (or any similar provision of state, local or foreign law); (B) as a result of an express or implied obligation to indemnify any other person, provided, however, in each case such Taxes are attributable to a taxable period ending on or before the Closing Date. Notwithstanding the foregoing, Parent and Seller shall not indemnify and hold harmless the Buyer Indemnified Parties from any liability for Taxes directly resulting from any action taken after the Closing Date by Buyer or any of its affiliates (other than any such action expressly required or permitted by this Agreement or required by applicable law) (a "Buyer Tax Act"). In addition, notwithstanding any other provision of this Agreement, Parent and Seller shall not 66 indemnify and hold harmless the Buyer Indemnified Parties from any Buyer Losses as a result of the transactions contemplated by this Agreement qualifying as tax-free reorganizations under Section 368 of the CodeExcluded Assets.

Indemnification by Parent and Seller. (a) Subject to the terms and conditions of this Article VI, Parent and Seller Seller, jointly and severally agree to severally, shall defend, indemnify in full Buyer and hold harmless Buyer, its Affiliates (including, after the Closing, the Company and the Subsidiary) and their respective successors, officers, directors, shareholders, employees, agents, stockholders trustees, advisers, lenders and subsidiaries representatives (collectively, the "Buyer Indemnified PartiesIndemnitees") and hold them harmless ), from and against against, and pay or reimburse the Buyer Indemnitees for, any lossand all claims, liabilitydebts, damageobligations, expense or cost liabilities (includingincluding Tax liabilities), without limitationmonetary damages, fines, fees, penalties, interest obligations, deficiencies, judgments, proceedings, losses, costs of investigation and defense, and reasonable legal and other professional fees and expenses but not including consequential damages(whether absolute, punitiveaccrued, special conditional or indirect damages), as incurred otherwise and whether or not involving a Third Party Action (as defined in Section 11.07(a)resulting from third party claims), which including without limitation reasonable out-of-pocket expenses, consulting fees, court costs, expert witness fees and reasonable attorneys' fees and expenses incurred in the investigation or defense of any of the Buyer Indemnified Parties may suffer, sustain or become subject to, as a direct or indirect result of, or arising from same or in connection with asserting any of the following their respective rights hereunder (collectively, "Buyer Losses"): (i) any breach or inaccuracy in any of the representations and warranties of Parent or Seller contained in this Agreement, the Ancillary Agreements, or in any exhibits, schedules, certificates or other documents delivered or to be delivered by or on behalf of Parent or Seller pursuant to the terms hereof or thereof or otherwise referenced or incorporated in this Agreement (collectively, the "Seller Related DocumentsDamages"), it being understood and agreed that for all purposes under this Article XI resulting from, arising out of or relating to: (a) any such misrepresentation or breach of a representation or warranty shall be determined without regard to the effect of any qualification set forth therein relating to materiality or a Material Adverse Effect; provided that Buyer Losses resulting from a breach or inaccuracy of Section 4.25 shall only include any costs or expenses incurred to comply with the requirements of any Environmental Law or any Order under or pursuant to any Environmental Law, except to the extent Buyer or another party after the Closing has contributed to the condition or the circumstances, including any Releases, forming the basis of any such Buyer Losses. (ii) any breach of, or failure to perform, any covenant or agreement of Parent or Seller contained in this Agreement or any the certificate of Parent or the certificate of Seller Related Documents; (iii) any product or component thereof manufactured or shipped, or any services provided, by the Business in whole or in part prior to delivered at the Closing (including, without limitation, any product liability claimspursuant to Section 5.1(c); (ivb) any product recall required by failure of Parent or Seller to perform any Governmental Authority covenant or agreement made or contained in this Agreement or fulfill any obligation in respect thereof; (c) any failure of Seller to have and transfer to Buyer good and valid title to the issued and outstanding Company Shares free and clear of any Share Encumbrances; (d) any Environmental Liabilities and Costs arising from, relating to, in respect of or incurred in connection with respect to any product conditions existing or component thereof manufactured or shipped by the Business in whole or in part events occurring prior to the Closing; (ve) SMD or the conduct of the business operated by SMD, including any existing, historical or future liability or commitment of SMD, the Company's ownership interest in SMD or the assignment or other transfer of the Company's equity interest in SMD to Parent or an Affiliate of Parent as contemplated by Section 4.10; (f) the Division Retained Assets (as defined items set forth in Section 2.10 of the Contribution Agreement), the Division Retained Liabilities (as defined in the Contribution Agreement) or the Seller Entity Assumed Liabilities (as defined in the Intercompany Agreement)Disclosure Schedule; andor (vig) any liabilities, responsibilities or obligations of Parent or Seller for severance payments, severance benefits or other payments, benefits, costs and expenses of any kind or nature the earnout payments due in respect of terminated employees pursuant to or incurred the Company's acquisition of System Simulation Solutions, Inc. and set forth in connection with item 1 of Section 2.6 of the actions contemplated Disclosure Schedule (which earnout payments shall be the responsibility of and shall be paid by Sections 8.02(a) or 8.02(bParent and Seller); andor (viih) any liability of any the Contracts listed in Section 4.12 of the Seller Entities for Taxes of any person other than any of the Seller Entities, (A) under Treasury regulations Section 1.1502-6 (or any similar provision of state, local or foreign law); (B) as a result of an express or implied obligation to indemnify any other person, provided, however, in each case such Taxes are attributable to a taxable period ending on or before the Closing Date. Notwithstanding the foregoing, Parent and Seller shall not indemnify and hold harmless the Buyer Indemnified Parties from any liability for Taxes directly resulting from any action taken after the Closing Date by Buyer or any of its affiliates (other than any such action expressly required or permitted by this Agreement or required by applicable law) (a "Buyer Tax Act"). In addition, notwithstanding any other provision of this Agreement, Parent and Seller shall not 66 indemnify and hold harmless the Buyer Indemnified Parties from any Buyer Losses as a result of the transactions contemplated by this Agreement qualifying as tax-free reorganizations under Section 368 of the CodeDisclosure Schedule.