Common use of Indemnification by Seller and Stockholders Clause in Contracts

Indemnification by Seller and Stockholders. (a) In the event Seller breaches (or in the event any third party alleges facts that, if true, would mean Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then Seller agrees to indemnify Parent and Purchaser from and against the entirety of any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (b) In the event any Stockholder breaches (or in the event any third party alleges facts that, if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (c) Seller and each of the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by: (i) any liability of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect to any Tax year or portion thereof ending on or before the Closing Date (or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date).

Indemnification by Seller and Stockholders. Seller and Stockholders jointly and severally43 agree subsequent to the Closing to indemnify and hold Buyer and its respective subsidiaries and affiliates and persons serving as officers, directors, partners or employees thereof (individually, a “Buyer Indemnified Party,” and collectively, the “Buyer Indemnified Parties”) harmless from and against any damages, liabilities, losses, taxes, fines, penalties, costs, and expenses (including, without limitation, reasonable fees of counsel) of any kind or nature whatsoever (whether or not arising out of third-party claims, and including all amounts paid in investigation, defense or settlement of the foregoing) which may be sustained or suffered by any of them arising out of or based upon any of the following matters: (a) In the event fraud, intentional misrepresentation or a deliberate or willful breach by Seller breaches (or any Stockholder of any of their representations, warranties or covenants under this Agreement or in the event any third party alleges facts thatcertificate, if true, would mean Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser schedule or Parent makes a written claim for indemnification against Seller exhibit delivered pursuant to Section 12.03 below, then Seller agrees to indemnify Parent and Purchaser from and against the entirety of any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach).hereto; (b) In the event any other breach of any representation, warranty or covenant of Seller or any Stockholder breaches (under this Agreement or in the event any third party alleges facts thatcertificate, if trueschedule or exhibit delivered pursuant hereto, would mean or by reason of any claim, action or proceeding asserted or instituted growing out of the Stockholders has breached) any matter or thing constituting a breach of his such representations, warranties, and covenants contained in this Agreement, and, Purchaser warranties or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach).covenants; (c) all claims asserted under the Bulk Sales Act relative to any Excluded Liabilities; 43See Section 2.01 and its footnote. It may be appropriate to limit the exposure of certain stockholders to warranties regarding their shares and authority and to covenants and conditions to be specifically performed by them. However, joint liability should be retained to the extent that the buyer wishes to offset indemnity claims against the note or recover from the escrow fund after distribution to the stockholders in liquidation. (d) any failure by Seller or the Stockholders to perform and each discharge any of the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent or Purchaser may suffer resulting from, arising out of, relating to, Excluded Liabilities as set forth in the nature of, or caused by: this Agreement; and (ie) any liability of Seller or any Stockholder for Taxes (as defined in Section 2.08) which is are not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under included in the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect to any Tax year or portion thereof ending on or before the Closing Date (or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date)assumed Liabilities.

Indemnification by Seller and Stockholders. Notwithstanding investigation at any time made by or on behalf of Buyer, Seller and Stockholders, jointly and severally, agree to defend, indemnify and hold harmless Buyer, its officers, shareholders, directors, divisions, subdivisions, affiliates, parent, employees, agents, successors, assigns and the Assets from and against all losses, claims, actions, causes of action, damages, liabilities, expenses and other costs of any kind or amount whatsoever (including, without limitation, reasonable attorneys' fees), whether equitable or legal, matured or contingent, known or unknown, foreseen or unforeseen, ordinary or extraordinary, patent or latent, which result, either before or after the date of this Agreement, from: (a) In inaccuracy in any representation or warranty made by Seller or Stockholders in this Agreement; (b) breach of any representation or warranty under this Agreement by Seller or Stockholders; (c) failure of Seller or Stockholders duly to perform and observe any term, provision, covenant, agreement or condition under this Agreement; (d) liability of Seller or Stockholders imposed upon Buyer (including, without limitation, all liability for the event generation, collection, transportation, storage or disposal of any materials, including, without limitation, Hazardous Materials, whether or not disclosed on Schedule 5.1(m) hereof); (e) misrepresentation in or omission from any Schedule to this Agreement; (f) failure of Seller breaches or Stockholders to obtain consent to a Customer Account requiring such consent (including, without limitation, reimbursement to Buyer of the value of such nonassigned Customer Account); (g) liability of Seller or Stockholders resulting from one or more pending or threatened lawsuits whether or not listed on Schedule 5.1(h); (h) liability of Seller or Stockholders to creditors of Seller or Stockholders which is imposed on Buyer whether as a result of bankruptcy proceedings or otherwise and whether as an account payable by Seller or Stockholders or as a claim of alleged fraudulent conveyance or preferential payments within the meaning of the United States Bankruptcy Code or otherwise; and (i) the existence of creditors of Seller which are not disclosed to Buyer; (j) any of the matters described in the event Section 8.1(a)-(k) hereof; and (k) subject to Section 8.5 hereof, any claim by a third party alleges facts that, if true, would mean Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim condition for indemnification against Seller pursuant set forth in this Section 8.3 had been satisfied. Buyer shall be deemed to have suffered such loss, claim, action, cause of action, damage, liability, expense or other cost, or to have paid or to have become obligated to pay any sum on account, of, the matters referred to in subparagraphs (a) - (l) of this Section 12.03 below8.3 if the same shall be suffered, then Seller agrees to indemnify Parent and Purchaser from and against the entirety paid or incurred by Buyer or any parent, subsidiary, affiliate, or successor of any Adverse Consequences Parent or Purchaser may suffer through and after the date Buyer. The amount of the claim for indemnification resulting fromloss, arising out ofclaim, relating toaction, in cause of action, damage, liability, expense or other cost deemed to be suffered, paid or incurred by Buyer shall be an amount equal to the nature ofloss, claim, action, cause of action, damage, liability, expense or other cost suffered, paid or incurred by such parent, subsidiary, affiliate, or caused by the breach (or the alleged breach)successor. (b) In the event any Stockholder breaches (or in the event any third party alleges facts that, if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (c) Seller and each of the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by: (i) any liability of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect to any Tax year or portion thereof ending on or before the Closing Date (or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date).

Indemnification by Seller and Stockholders. (a) In the event Seller breaches (or in the event any third party alleges facts that, if true, would mean Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then Seller hereby agrees to indemnify Parent and hold harmless Purchaser, and Purchaser's stockholders, officers and directors, employees and agents and their respective successors and assigns (collectively, the "Purchaser Indemnified Parties") from and against any and all claims, damages, liabilities, obligations, losses, costs, expenses (including, without limitation, reasonable legal costs and expenses) and judgments (at equity or at law) arising out of or resulting from (i) the entirety breach of any Adverse Consequences Parent representation, warranty or Purchaser may suffer through and after the date covenant of the claim for indemnification resulting fromSeller or the Stockholders under this Agreement or the Seller's Clean-Op Transaction Documents or the Seller's Drape Business Transaction Documents, arising out of, relating to, (ii) the operation of the Clean-Op Business or the ownership or use of the Purchased Assets used in the nature ofClean-Op Business prior to the Clean-Op Closing, or caused other than the Assumed Liabilities assumed by Purchaser at the breach Clean-Op Closing, (iii) the operation of the Seller's Drape Business or the alleged breachownership or use of the Purchased Assets prior to the Drape Business Closing, other than the Assumed Liabilities, (iv) any liabilities of the Seller's Business not expressly assumed by Purchaser, (v) any action, claim, suit or proceeding based on the failure of Seller or Stockholders to comply with Section 5.10 above, (vi) the Excluded Assets, and (vii) any creditors rights or debtor relief laws or actions with respect to Seller (including, without limitation, any claims of avoidance of transfers or rejections of contracts). (b) In the event any Stockholder breaches (or in the event any third party alleges facts that, if true, would mean any Each of the Stockholders has breached) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, hereby agrees to indemnify and hold harmless the Purchaser and Parent Indemnified Parties from and against any Adverse Consequences Parent and all claims, damages, liabilities, obligations, losses, costs, expenses (including, without limitation, reasonable legal costs and expenses) and judgments (at equity or Purchaser may suffer through and after the date of the claim for indemnification resulting from, at law) arising out of, relating to, in the nature of, of or caused by the breach (or the alleged breach). (c) Seller and each of the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent resulting from and against any Adverse Consequences either Parent or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by: (i) any liability of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law the breach of any jurisdictionrepresentation, warranty or covenant of such Stockholder under any common law doctrine of de facto merger this Agreement or successor liability, under Environmental Requirements, representatives the Seller's Clean-Op Transaction Documents or employees do not exacerbate the Drape Business Transaction Documents and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability creditors rights or debtor relief laws (including without limitation Title 11 of any of Seller for unpaid Taxes the United States Code) or actions with respect to Seller (including, without limitation, any Tax year claims of avoidance of transfers or portion thereof ending rejections of contracts). The Stockholders' indemnification obligations under Subsection 6.2(b)(ii) shall be limited to that amount set forth on or before Schedule 6.2(b) with respect to each of the Closing Date (or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date)Stockholders.

Indemnification by Seller and Stockholders. (a) In Subject to the event Seller breaches (or in the event any third party alleges facts that, if true, would mean Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then Seller agrees to indemnify Parent and Purchaser from and against the entirety of any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (b) In the event any Stockholder breaches (or in the event any third party alleges facts that, if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained limitations set forth in this AgreementArticle XI, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agreeSellers and the Stockholders, jointly and severally, to indemnify Purchaser shall indemnify, defend and Parent hold harmless Buyer, its managers, members, officers, directors, agents, attorneys and employees, (hereinafter “Buyer Indemnified Parties”) from and against any Adverse Consequences Parent and all Damages incurred or Purchaser may suffer through and after sustained by Buyer Indemnified Parties as a result of: (a) the date breach of any representation or warranty of Seller contained in this Agreement or in any certificate or other instrument furnished to Buyer pursuant to this Agreement; (b) the claim for indemnification resulting from, arising out breach of, relating todefault under or nonfulfillment of any covenant, in the nature of, obligation or caused by the breach (agreement of Seller under this Agreement or the alleged breach).agreements and instruments contemplated herein; (c) Seller and each a claim for Damages asserted with respect to the ownership or use of the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by: Excluded Assets; (id) any liability of Seller which that is not an Assumed Liability Liability, including the Excluded Liabilities; (including e) amounts paid by the Buyer or its Affiliates in respect of Contingent Initial Fee Refunds to the extent such amounts exceed the amount of the funds released from the Escrow Accounts (based on the balance of such accounts as of the Closing Date) to the Buyer, if any liability (it being agreed among the parties that Buyer agrees to delay making any such claim until the balance of Seller that becomes a liability the Escrow Accounts as of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect to any Tax year or portion thereof ending on or before the Closing Date have been distributed and the funds released to Buyer are insufficient to satisfy Contingent Initial Fee Refunds (and Seller shall not object to such delay in making a claim)); or (f) any and all actions, suits, or for proceedings, incident to any Tax year beginning before and ending after of the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date)foregoing.

Indemnification by Seller and Stockholders. Seller and the Stockholders jointly and severally agree to defend, indemnify and hold Buyer and its directors, officers, stockholders, successors and assigns harmless from and against any and all damages, claims, suits, liabilities, fines, penalties, costs, losses, diminution in value, deficiencies, and expenses (including without limitation reasonable counsel fees) of any kind or nature whatsoever, whether or not involving a third-party claim (collectively “Buyer Damages”) which may be sustained or suffered by Buyer arising from or related to: (a) In a breach of any representation, warranty or covenant made by Seller or the event Stockholders in this Agreement or any other agreement, certificate or document delivered by or on behalf of Seller breaches (or in the event any third party alleges facts that, if true, would mean Stockholder of Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim for indemnification against Seller to Buyer pursuant to Section 12.03 below, then Seller agrees to indemnify Parent and Purchaser from and against the entirety of any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach).this Agreement; (b) In any product liability claim or negligence, strict tort or any other claim arising in connection with any product manufactured, shipped, sold or leased by, or any services provided by Seller before the event Closing Date, but specifically excluding any Stockholder breaches individual product warranty claims of less than $1,500 (or in the event any third party alleges facts that, if true, would mean any inclusive of the Stockholders has breachedlabor and parts) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim each for indemnification which Buyer shall not have recourse against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach).Stockholders; (c) Seller and each of obligations relating to the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent Business or Purchaser may suffer resulting from, Acquired Assets arising out of, relating to, in or accruing prior to the nature of, or caused by: Closing which have not been expressly assumed by Buyer; (id) any liability “qualification failure” (as defined in Section 5.01 of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (iiIRS Revenue Procedure 98-22) any liability of any of Seller for unpaid Taxes with respect to the Bytewise Employee Savings Plan (Principal Financial Group Prototype Basic Savings Plan). The manner of correction of any Tax year such qualification failure shall be in the sole discretion of the Buyer and shall include the filing and prosecution of an application for a “favorable determination letter” in connection with the reinstatement of the qualified status, or portion thereof ending on or before the termination, of any such plan(s); or (e) Any Accounts Receivable due Seller as of the Closing Date Date, net of any applicable allowance for doubtful accounts which has not been collected by that date which is eighteen (or for any Tax year beginning before and ending 18) months after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date).

Indemnification by Seller and Stockholders. Notwithstanding investigation at any time made by or on behalf of Buyer, Seller and Stockholders, jointly and severally, agree to defend, indemnify and hold harmless Buyer, its officers, shareholders, directors, divisions, subdivisions, affiliates, parent, employees, agents, successors, assigns and the Assets from and against all losses, claims, actions, causes of action, damages, liabilities, expenses and other costs of any kind or amount whatsoever (including, without limitation, reasonable attorneys' fees), whether equitable or legal, matured or contingent, known or unknown, foreseen or unforeseen, ordinary or extraordinary, patent or latent, which result, either before or after the date of this Agreement, from: (a) In inaccuracy in any representation or warranty made by Seller or Stockholders in this Agreement; (b) breach of any representation or warranty under this Agreement by Seller or Stockholders; (c) failure of Seller or Stockholders duly to perform and observe any term, provision, covenant, agreement or condition under this Agreement; (d) liability of Seller or Stockholders imposed upon Buyer (including, without limitation, all liability for the event generation, collection, transportation, storage or disposal of any materials, including, without limitation, Hazardous Materials, whether or not disclosed on Schedule 5.1(m) hereof); (e) misrepresentation in or omission from any Schedule to this Agreement; (f) failure of Seller breaches or Stockholders to obtain consent to a Customer Account requiring such consent (including, without limitation, reimbursement to Buyer of the value of such nonassigned Customer Account); (g) liability of Seller or Stockholders imposed upon Buyer as a result of Seller's failure to comply with the bulk transfer law of Texas; (h) liability of Seller or Stockholders resulting from one or more pending or threatened lawsuits whether or not listed on Schedule 5.1(h); (i) liability of Seller or Stockholders to creditors of Seller or Stockholders which is imposed on Buyer whether as a result of bankruptcy proceedings or otherwise and whether as an account payable by Seller or Stockholders or as a claim of alleged fraudulent conveyance or preferential payments within the meaning of the United States Bankruptcy Code or otherwise; and (j) the existence of creditors of Seller which are not disclosed to Buyer; (k) any of the matters described in the event Section 8.1(a)-(l) hereof; and (l) any claim by a third party alleges facts that, if true, would mean Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim condition for indemnification against Seller pursuant set forth in this Section 8.3 had been satisfied. Buyer shall be deemed to have suffered such loss, claim, action, cause of action, damage, liability, expense or other cost, or to have paid or to have become obligated to pay any sum on account, of, the matters referred to in subparagraphs (a) - (l) of this Section 12.03 below8.3 if the same shall be suffered, then Seller agrees to indemnify Parent and Purchaser from and against the entirety paid or incurred by Buyer or any parent, subsidiary, affiliate, or successor of any Adverse Consequences Parent or Purchaser may suffer through and after the date Buyer. The amount of the claim for indemnification resulting fromloss, arising out ofclaim, relating toaction, in cause of action, damage, liability, expense or other cost deemed to be suffered, paid or incurred by Buyer shall be an amount equal to the nature ofloss, claim, action, cause of action, damage, liability, expense or other cost suffered, paid or incurred by such parent, subsidiary, affiliate, or caused by the breach (or the alleged breach)successor. (b) In the event any Stockholder breaches (or in the event any third party alleges facts that, if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (c) Seller and each of the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by: (i) any liability of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect to any Tax year or portion thereof ending on or before the Closing Date (or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date).

Indemnification by Seller and Stockholders. Except as hereinafter set forth, Seller and each Stockholder shall indemnify and hold harmless on an after-tax basis Buyer and Parent and each of its successors, assigns, officers, directors, shareholders, employees and agents, against, and in respect of, any and all damages, claims, losses, liabilities and expenses, including, without limitation, reasonable legal, accounting and other expenses, which may arise out of: (a) In the event any breach or violation of this Agreement by Seller breaches (or in the event any third party alleges facts that, if true, would mean Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then Seller agrees to indemnify Parent and Purchaser from and against the entirety of any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). Stockholder; (b) In the event any Stockholder breaches (or in the event any third party alleges facts that, if true, would mean breach of any of the Stockholders has breached) any of his representations, warranties, and warranties or covenants contained made in this Agreement, and, Purchaser Agreement by Seller or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent Stockholder; or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (c) Seller's conduct of the Business or use or operation of the Purchased Assets prior to the Closing; provided however, that Seller and each of the Stockholders agree toshall be liable for indemnification hereunder only when, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by: (i) any liability of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes only with respect to any Tax year or portion thereof ending on or before amounts by which, the Closing Date aggregate of all claims exceeds $20,000 (or other than liabilities that are not Included Liabilities, which are not subject to this threshold), and shall not be liable for any Tax year beginning before an aggregate amount of all claims in excess of the Parent Shares and ending after the Closing Date to Option (valued at the extent allocable to the portion per share closing price of such period beginning before and ending Parent’s Common Stock on the Closing Date). The amount of any claim subject to Indemnification under this Section 5.1 may be referred to as a “Seller Indemnification Amount.” Subject to Section 5.3(c) below, (A) Indemnification under this Section 5.1 shall be (i) joint and several as between Seller and all Stockholders, but (ii) strictly several, and not joint, as between Stockholders based on Stockholders’ respective numbers of shares and options in Seller’s capital stock immediately prior to Closing, and (B) all Seller Indemnification Amounts shall be recovered exclusively from the Parent Shares and the Option in accordance with Section 5.4 below.

Indemnification by Seller and Stockholders. (aSubject only to Sections 7.1(b) In the event and 7.5, Seller breaches (or in the event any third party alleges facts thatand Stockholders shall, if truejointly and severally, would mean Seller has breached) any of its representationsindemnify, warrantiesdefend, and covenants contained hold harmless Parent, Buyer, its Affiliates, and their officers, directors, employees, stockholders, agents, and other representatives (collectively, “Buyer Indemnitees”) against and in the Agreement, and, provided that Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then Seller agrees to indemnify Parent and Purchaser from and against the entirety respect of any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting fromall losses, costs, expenses, claims, damages, lost revenue, Proceedings, charges, complaints, demands, injunctions, judgments, orders, decrees, rulings, directions, dues, penalties, fines, amounts paid in settlement, Taxes, liens, losses, and fees, court costs, obligations, and liabilities, including interest, penalties, and attorneys fees, and disbursements (“Damages”), arising out of, relating to, based upon or otherwise in the nature respect of, : (a) any inaccuracy in or caused by the breach (of any representation or warranty of Seller or any Stockholder made in or pursuant to this Agreement or the alleged breach).Disclosure Statement; (b) In the event any breach or nonfulfillment of any covenant or obligation of Seller or any Stockholder breaches (contained in this Agreement or any other Transaction Document; provided, however, that, subject to Section 7.5(d), in the event any third party alleges facts thata Stockholder breaches his non-competition obligations under Section 6.6(c), if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim for indemnification Buyer Indemnified Parties may not seek recourse therefor against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach).non-breaching Stockholders; (c) Seller and each any liability arising out of the Stockholders agree toBusiness and the ownership or operation of the Purchased Assets before the Effective Time, jointly and severallyany liabilities of Seller arising after the Effective Time; (d) any liability for or with respect to Taxes (whether or not reserved against or contested) for taxable periods up to and including the Closing Date; (e) any liability for or with respect to Seller’s misclassification of any Person as a consultant, indemnify Purchaser independent contractor or the like and Parent from not as an ‘employee’ of Seller for purposes of tax, employment and/or other laws and against regulations; (f) any Adverse Consequences either Parent warranty or Purchaser may suffer resulting fromproduct liability claim for or with respect to any product sold, arising out ofdistributed or licensed, relating toor any services provided by Seller with respect to the Business, in whole or in part, before the nature of, Effective Time; (g) any obligation to provide additional services (including any liability associated therewith) or caused by: to pay any compensation or other remuneration pursuant to any Contract entered into by Seller prior to the Closing; (h) any noncompliance with or liability under any bulk sales Laws or fraudulent transfer law in respect of the any of the Contemplated Transactions or under the WARN Act or any similar Law; (i) any liability of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law)Liabilities; or (ii) any liability of any of Seller for unpaid Taxes with respect to any Tax year or portion thereof ending on or before the Closing Date (or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date).and

Indemnification by Seller and Stockholders. Seller and Stockholders shall jointly and severally indemnify and hold harmless Buyer, and shall reimburse Buyer for, any loss, liability, claim, damage, expense (including, but not limited to, costs of investigation and defense and reasonable attorneys' fees, provided that the reimbursement of costs of investigation, defense and reasonable attorneys' fees shall be subject to Section 11.7) or diminution of value (collectively, "Damages") arising from or in connection with (a) In any inaccuracy in any of the event representations and warranties of Seller breaches (or Stockholders in this Agreement or in the event any third party alleges facts that, if true, would mean certificate delivered by Seller has breached) any of its representations, warranties, and covenants contained in the or Stockholders pursuant to this Agreement, andor any actions, provided that Purchaser omissions or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 belowstatements of facts inconsistent with any such representation or warranty, then Seller agrees to indemnify Parent and Purchaser from and against the entirety of any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (b) In the event any Stockholder breaches (failure by Seller or in the event Stockholders to perform or comply with any third party alleges facts that, if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained agreement in this Agreement, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (c) any and all liabilities and obligations of Seller and each that are not expressly assumed by Buyer under the terms of this Agreement, (d) any claim by any person based on any act or omission occurring prior to the Closing Date, except for claims base on Buyer's failure to pay or perform the Assumed Liabilities, (e) any claims by creditors of Seller (including any taxing authority) under any applicable bulk sales laws (it being understood that neither Seller nor Buyer shall require compliance with any such bulk transfer laws), (f) any claim by any Person for 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 the Seller or the Stockholders (or any Person acting on their behalf) in connection with any of the Stockholders agree toContemplated Transactions, jointly and severally(g) claims by any taxing authorities with respect to Taxes with respect to the period prior to the Closing, indemnify Purchaser and Parent from and (h) any claims made against any Adverse Consequences either Parent the Seller alleging violation of ERISA or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, otherwise premised on an ERISA claim or caused by: (i) any liability of Seller which is claims relating to the dispute listed on Schedule 5.8, provided that any damages or amount payable in settlement in such claim shall be paid by Buyer to the extent that such amount does not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate result in the liabilities set forth in Section 2.5(a)(i) and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect plus additional liabilities referred to any Tax year or portion thereof ending on or before the Closing Date in Section 2.5(b) (or for any Tax year beginning before ii) and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date)(v) exceeding $375,000.

Indemnification by Seller and Stockholders. Notwithstanding investigation at any time made by or on behalf of Buyer, Seller and each Stockholder, severally (and not jointly and severally), agree to defend, indemnify and hold harmless Buyer, its officers, shareholders, directors, divisions, subdivisions, affiliates, parent, employees, agents, successors, assigns and the Assets from and against all losses, claims, actions, causes of action, damages, liabilities, expenses and other costs of any kind or amount whatsoever (including, without limitation, reasonable attorneys' fees), whether equitable or legal, matured or contingent, known or unknown, foreseen or unforeseen, ordinary or extraordinary, patent or latent, which result, either before or after the date of this Agreement, from: (a) In inaccuracy in any representation or warranty made by Seller or Stockholders in this Agreement; (b) breach of any representation or warranty under this Agreement by Seller or Stockholder; (c) failure of Seller or Stockholders duly to perform and observe any term, provision, covenant, agreement or condition under this Agreement; (d) liability of Seller or Stockholders imposed upon Buyer (including, without limitation, all liability for the event generation, collection, transportation, storage or disposal of any materials, including, without limitation, Hazardous Materials, whether or not disclosed on Schedule 5.1(m) hereof); (e) misrepresentation in or omission from any Schedule to this Agreement; (f) failure of Seller breaches or Stockholders to obtain consent to a Customer Account requiring such consent (including, without limitation, reimbursement to Buyer of the value of such nonassigned Customer Account); (g) liability of Seller or Stockholders imposed upon Buyer as a result of Seller's failure to comply with the bulk transfer law of Texas; (h) liability of Seller or Stockholders resulting from one or more pending or threatened lawsuits whether or not listed on Schedule 5.1(h); (i) liability of Seller or any Stockholder to creditors of Seller or any Stockholder which is imposed on Buyer whether as a result of bankruptcy proceedings or otherwise and whether as an account payable by Seller or any Stockholder or as a claim of alleged fraudulent conveyance or preferential payments within the meaning of the United States Bankruptcy Code or otherwise; and (j) the existence of creditors of Seller which are not disclosed to Buyer; (k) any of the matters described in the event Section 7.1(a)-(k) hereof; and (l) any claim by a third party alleges facts that, if true, would mean Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim condition for indemnification against Seller pursuant set forth in this Section 7.3 had been satisfied. Buyer shall be deemed to have suffered such loss, claim, action, cause of action, damage, liability, expense or other cost, or to have paid or to have become obligated to pay any sum on account, of, the matters referred to in subparagraphs (a) - (l) of this Section 12.03 below7.3 if the same shall be suffered, then Seller agrees to indemnify Parent and Purchaser from and against the entirety paid or incurred by Buyer or any parent, subsidiary, affiliate, or successor of any Adverse Consequences Parent or Purchaser may suffer through and after the date Buyer. The amount of the claim for indemnification resulting fromloss, arising out ofclaim, relating toaction, in cause of action, damage, liability, expense or other cost deemed to be suffered, paid or incurred by Buyer shall be an amount equal to the nature ofloss, claim, action, cause of action, damage, liability, expense or other cost suffered, paid or incurred by such parent, subsidiary, affiliate, or caused by the breach (or the alleged breach)successor. (b) In the event any Stockholder breaches (or in the event any third party alleges facts that, if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (c) Seller and each of the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by: (i) any liability of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect to any Tax year or portion thereof ending on or before the Closing Date (or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date).

Indemnification by Seller and Stockholders. From and after the Closing, Seller and the Stockholders shall hold harmless and indemnify each of the Purchaser Indemnitees from and against, and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are suffered or incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise from or as a result of: (a) In any inaccuracy in or breach of any representation or warranty of Seller or any Stockholder set forth in this Agreement, the event Seller breaches (Disclosure Schedule or in any Ancillary Document; (b) any breach of any covenant or obligation of Seller or any Stockholder set forth in this Agreement or in any Ancillary Document; (c) any Liability other than the event Assumed Liabilities or Additional Liabilities; (d) any third party alleges Liability for Excluded Taxes; (e) any Liability to which Purchaser or any of the other Purchaser Indemnitees may become subject and that arises from or relates to any failure to comply with any bulk transfer law or similar Legal Requirement in connection with any of the Transactions; (f) any Fraud on the part of Seller, any Stockholder, any Representative of Seller, any Representative of any Stockholder or any other equityholder of Seller in connection with or relating directly or indirectly to (i) the negotiation, execution, delivery or performance of this Agreement and (ii) any of the Transactions; (g) any claim or Legal Proceeding alleging the occurrence of facts or circumstances that, if true, would mean Seller has breachedentitle a Purchaser Indemnitee to indemnification hereunder; or (h) any successful Legal Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim for indemnification against Seller pursuant to rights under this Section 12.03 below, then Seller agrees to indemnify Parent and Purchaser from and against the entirety of any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach7.2). (b) In the event any Stockholder breaches (or in the event any third party alleges facts that, if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent from and against any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (c) Seller and each of the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by: (i) any liability of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect to any Tax year or portion thereof ending on or before the Closing Date (or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date).

Indemnification by Seller and Stockholders. (a) In the event Seller breaches (or in the event any third party alleges facts that, if true, would mean Seller has breached) any of its representations, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then Seller agrees to indemnify Parent and Purchaser from and against the entirety of any Adverse Consequences Parent or Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). (b) In the event any Stockholder breaches (or in the event any third party alleges facts that, if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agreeStockholders, jointly and severally, hereby indemnify and agree to indemnify Purchaser hold ESI and Parent from its affiliates and their respective stockholders, officers, directors, employees and agents (all of which are included in any reference to ESI in this Section) harmless from, against and in respect of (and shall on demand reimburse ESI for): (i) any Adverse Consequences Parent and all losses, liabilities or Purchaser may suffer through damages suffered or incurred by ESI by reason of any untrue representation, breach of warranty or nonfulfillment of any covenant by Seller or Stockholders contained herein or in any certificate, document or instrument delivered to ESI hereunder; (ii) [Reserved]; (iii) any and after all losses, damages, debts, liabilities or obligations of Seller, direct or indirect, fixed, contingent or otherwise, which exist at or as of the date of the claim for indemnification resulting fromClosing hereunder or which arise after the Closing but which are based upon or arise from any act, arising out ofomission, relating totransaction, in the nature ofcircumstance, providing of goods or caused by the breach (services, state of facts or the alleged breach). (c) Seller and each of the Stockholders agree to, jointly and severally, indemnify Purchaser and Parent from and against any Adverse Consequences either Parent other condition which occurred or Purchaser may suffer resulting from, arising out of, relating to, in the nature of, or caused by: (i) any liability of Seller which is not an Assumed Liability (including any liability of Seller that becomes a liability of Purchaser under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect to any Tax year or portion thereof ending existed on or before the Closing Date (date of the Closing, whether or for any Tax year beginning before and ending after the Closing Date not then known, due or payable, except to the extent allocable (A) reflected or reserved against on the face of the Balance Sheet (excluding the notes thereto) or incurred after the Balance Sheet Date in connection with the purchase of goods or services in the ordinary course of Seller's business and in conformity with the representations, warranties and covenants of Seller contained in this Agreement (or a Schedule hereto) and (B) expressly assumed by ESI pursuant to the portion terms of such period beginning before the Liabilities Undertaking; -35- (iv) any and ending all losses, liabilities or damages suffered or incurred by ESI (a) by reason of any claim for severance or vacation pay accruing or incurred or triggered by a discharge at any time on or after the Closing Date)date hereof or (b) relating to employee benefits attributable to services performed prior to the Closing, except to the extent set forth on Schedule 16(a)(vi) annexed hereto; (v) any and all losses, liabilities or damages suffered or incurred by ESI by reason of or in connection with any claim for a finder's fee or brokerage or other commission arising by reason of any services alleged to have been rendered to or at the instance of Seller or Stockholders with respect to this Agreement or any of the transactions contemplated hereby; and (vi) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and reasonable expenses, including, without limitation, reasonable legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity.

Indemnification by Seller and Stockholders. (a) In From and after the event Closing Date, Seller breaches (or in the event any third party alleges facts thatshall indemnify, if truesave and hold harmless Phoenix and Buyer, would mean Seller has breached) and their respective directors, officers and stockholder and Representatives of any of its representationsthem (collectively, warranties, and covenants contained in the Agreement, and, provided that Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then Seller agrees to indemnify Parent and Purchaser "BUYER INDEMNITEES") from and against any and all Losses asserted against, resulting to, imposed on, sustained, incurred or suffered by any of them (except to the entirety of any Adverse Consequences Parent or Purchaser may suffer through and after extent included in the date of the claim for indemnification resulting fromAssumed Liabilities) based upon, arising out of, relating related to or otherwise in respect of any of the following: (i) subject to the limitations set forth in Section 9.06, (A) the inaccuracy in or breach of any representation or warranty of Seller or any Stockholder (or any allegation by any third party which if true would constitute such a breach) contained in this Agreement or any certificate delivered by Seller in connection with this Agreement, and (B) any action, suit or proceeding based upon, arising out of, related to or otherwise in respect of any thereof; (ii) subject to the limitations set forth in Section 9.06 with respect only to a breach of Section 5.08 to the extent based on the inaccuracy or breach of any representations or warranties of Seller, (A) any failure to perform or observe or any breach of any covenant or agreement made by Seller or any Stockholder or any of their respective Affiliates in or pursuant to this Agreement or any Ancillary Agreement (other than the Employment Agreements and the Non-Competition Agreements) and (B) any action, suit or proceeding based upon, arising out of, related to or otherwise in respect of any thereof; (A) any failure by Seller to pay, perform or discharge when due any Liability of Seller not constituting Assumed Liabilities and (B) any action, suit or proceeding based upon, arising out of, related to or otherwise in respect of any thereof; or (iv) Taxes assessed on, or expenses attributable to, any of the Leases included in the nature ofAssigned Contracts for the period prior to the Closing Date (such that Seller shall have borne all real property Taxes and all expenses attributable thereto allocable to the period prior to the Closing Date), or caused by the breach (or the alleged breachin each case net of any amount previously paid under Section 2.03(c). (b) In Subject only to the event any limitations set forth in Section 9.06(b) and (c), from and after the Closing Date each Stockholder breaches (or in shall indemnify, save and hold harmless the event any third party alleges facts that, if true, would mean any of the Stockholders has breached) any of his representations, warranties, and covenants contained in this Agreement, and, Purchaser or Parent makes a written claim for indemnification against Seller pursuant to Section 12.03 below, then the Stockholders agree, jointly and severally, to indemnify Purchaser and Parent Buyer Indemnitees from and against any Adverse Consequences Parent and all Losses asserted against, resulting to, imposed on, sustained, incurred or Purchaser may suffer through and after the date suffered by any of the claim for indemnification resulting fromthem based upon, arising out of, relating related to or otherwise in respect of the inaccuracy in or breach of any representation or warranty of such Stockholder contained in the first paragraph of Article III and any action, suit or proceeding based upon, arising out of, related to or otherwise in respect of any breach of any such representation or warranty of such Stockholder. From and after the Closing Date, each Stockholder severally agrees on a Pro Rata Share basis amongst themselves to indemnify, save and hold harmless the Buyer Indemnitees from and against any and all Losses asserted against, resulting to, imposed on, sustained, incurred or suffered by any them based upon, arising out of, related to or otherwise in respect of any of the following: (i) subject to the limitations set forth in Section 9.06, (A) the inaccuracy in or breach of any representation or warranty of Seller contained in this Agreement (or any allegation by any third party which if true would constitute such a breach) or any -66- certificate delivered by Seller in connection with this Agreement, and (B) any action, suit or proceeding based upon, arising out of, related to or otherwise in respect of any thereof; (ii) subject to the limitations set forth in Section 9.06 solely with respect to any breach of Section 5.08 based on the inaccuracy or breach of any representations or warranties of Seller, (A) any failure to perform or observe or breach any covenant or agreement made by Seller or any Stockholder or any of their respective Affiliates in or pursuant to this Agreement or any Ancillary Agreement (other than the Employment Agreements and the Non-Competition Agreements) and (B) any action, suit or proceeding based upon, arising out of, related to or otherwise in respect of any thereof; (A) any failure by Seller to pay, perform or discharge when due any Liability of Seller not constituting Assumed Liabilities and (B) any action, suit or proceeding based upon, arising out of, related to or otherwise in respect of any thereof; or (iv) Taxes assessed on, or expenses attributable to, any of the Leases included in the nature ofAssigned Contracts for the period prior to the Closing Date (such that Seller shall have borne all real property Taxes and all expenses attributable thereto allocable to the period prior to the Closing Date), or caused by the breach (or the alleged breachin each case net of any amount previously paid under Section 2.03(c). (c) Without limiting the generality of the foregoing, from and after the Closing and subject to the limitations set forth in Section 9.06(b) and (c), Seller and each of and, on a several basis amongst themselves based on their respective Pro Rata Shares, the Stockholders agree to, jointly to indemnify and severally, indemnify Purchaser and Parent hold harmless Buyer Indemnitees from and against any Adverse Consequences either Parent or Purchaser may suffer all Losses asserted against, resulting from, arising out of, relating to, imposed on, sustained, incurred or suffered by any of Buyer Indemnitees, directly or indirectly (except to the extent included in the nature ofAssumed Liabilities), by reason of or caused by: resulting from (i) any liability Liability of Seller which is not an Assumed Liability (including Buyer Indemnitees arising from the non-compliance with any liability of Seller that becomes a liability of Purchaser under any applicable bulk transfer law laws or Article 6 of any jurisdictionthe Uniform Commercial Code, under any common law doctrine of de facto merger or successor liability, under Environmental Requirements, representatives or employees do not exacerbate and as to which they exercise due care and caution under the circumstances or otherwise by operation of law); or (ii) any liability of any of Seller for unpaid Taxes with respect claim relating to any Tax year failure to comply with Environmental, Health and Safety Requirements, or portion thereof ending pollution or threat to human health or the environment that is related in any way to the management, use, control, ownership or operation of the Business, including all on-site and off-site activities, and that occurred, existed, arises out of conditions or circumstances that occurred or existed, or was caused, on or before the Closing Date Date, regardless of whether learned or disclosed to Buyer, (iii) any and all Liabilities relating to employment of persons by Seller or for wages, salary, bonuses, commissions, fees, vacation or sick pay and payroll overheads except for wages of any Tax year beginning before Transferred Employees for the last pay period immediately prior to Closing to the extent accrued for and ending disclosed in the Closing Working Capital Statement, (iv) any and all Taxes of Seller for all taxable periods, whether before, on or after the Closing Date (except to the extent allocable allocated to Buyer with respect to the portion Leased Real Property or the Leases pursuant to Sections 2.03(c) of this Agreement), (v) any and all Liability relating to any Benefit and Compensation Plans sponsored, maintained or contributed to or required to be contributed to by Seller, (vi) any conflict, violation, breach or default by Seller described in Section 3.03(a) or 3.03(b) and (vii) any unauthorized use, misappropriation, dilution or infringement of any trademarks by Seller at any time. (d) The liquidation or dissolution of Seller shall not terminate or adversely modify or affect the rights of Buyer against any Stockholder under this Agreement, including pursuant to this Article IX. Notwithstanding anything herein to the contrary, it shall be a condition to the dissolution of Seller, that the Stockholders (i) jointly and severally assume Seller's liability under this Article IX to the extent of the Phoenix Closing Shares and other assets held by the Escrow Agent and (ii) severally on a Pro Rata Share basis amongst themselves with respect to all other assets (including the Phoenix Closing Shares and other assets held by the Escrow Agent following their release by Escrow Agent), in each case limited to the extent such period beginning before and ending assets or rights thereto are distributed by Seller to the Stockholders. Subject to the aggregate dollar limitations in Section 9.06, the obligations of Seller, on the Closing Date)one hand, and the obligations of the Stockholders, on the other hand, as set forth herein are independent of one another and Buyer shall not be limited as to which Party it may pursue for any obligations of Seller and Stockholders hereunder.