Common use of Indemnification by Seller and the Shareholders Clause in Contracts

Indemnification by Seller and the Shareholders. Seller and the Shareholders hereby jointly and severally agree to indemnify, defend and hold Buyer harmless from and against any Losses (defined below) in respect of the following: (a) Losses resulting in bodily injury, wrongful death, and/or property damages, including without limitation, actual, punitive, direct, indirect, or consequential damages and all attorney’s fees and court costs recoverable by the injured party or parties arising out of litigation that is currently pending against Seller or arising from facts which occurred prior to Closing which, in the case of litigation, the defense of which is not being defended by Seller’s insurance carrier or, if the same results in or has resulted in a verdict or damages to be paid, the same is not being paid by Seller’s insurance company. (b) Losses resulting from the breach of any representations, warranties, covenants or agreements made by Seller or the Shareholders in this Agreement or the Other Agreements. Any Loss for which an Indemnified Person (as defined below) is entitled to be indemnified under this Section 10.1 shall be promptly set off against the shares held in the Indemnity Escrow Account and cancelled. The number of shares to be cancelled shall be equal to the Share Price on the date on which such shares are cancelled; provided, however, that the indemnification provided herein by the Minority Shareholder shall be limited to thirty percent (30%) of any Losses for which an Indemnified Person is entitled to be indemnified under this Section 10.1, that the sole recourse of such Indemnified Person with respect to the Minority Shareholder’s share of such Losses shall be the set off of such Losses against the Minority Shareholder Shares held in the Minority Shareholder Escrow Account and that the Minority Shareholder shall have no further liability, personal or otherwise, under such indemnification.

Indemnification by Seller and the Shareholders. (a) Seller and the Shareholders hereby jointly and severally agree to indemnify, defend shall indemnify and hold harmless Buyer harmless and Probex and each director, officer, employee, agent and affiliate of Buyer and Probex (each, a "Buyer Indemnified Party"), from and against, and agree promptly to defend each Buyer Indemnified Party from and reimburse each Buyer Indemnified Party for, any and all actions, suits, proceedings (including any investigations or inquiries), losses, damages, costs, expenses, liabilities, obligations and claims of any kind or nature whatsoever which may be incurred by or asserted against or involve a Buyer Indemnified Party, whether or not disclosed, including, without limitation, reasonable attorneys' fees and other legal costs and expenses ("Buyer's Losses"), arising out of or in any Losses (defined below) in respect of the followingway relating to: (ai) any breach by Seller or the Shareholders of any representation or warranty set forth in this Agreement or in any document delivered hereunder; (ii) any Excluded Obligations; or (iii) any failure by Seller or the Shareholders to carry out, perform, satisfy and discharge any covenants, agreements, undertakings, liabilities or obligations to be performed by any of them pursuant to the terms of this Agreement or any of the documents delivered by them pursuant to this Agreement. Notwithstanding any other provision of this Section 9.2, Seller and the Shareholders shall not have any liability to Probex or Buyer for a breach of any representation, warranty or covenant (other than with respect to Excluded Obligations and the matters contained in Sections 4.16 and 4.19) unless and until the aggregate Buyer's Losses resulting incurred by Seller for all breaches of such provisions total more than $15,000 (the "Seller's Floor"), and in bodily injurythe event that the Buyer's Losses exceed the Seller's Floor, wrongful deathSeller shall be liable to Buyer and Probex for the entirety of the amount of the Buyer's Losses. Furthermore, and/or property damagesSeller and the Shareholders acknowledge that the covenants set forth in Section 10.3 and 10.4 are essential and fundamental to Buyer's acquisition of the Purchased Assets hereunder. If Seller and the Shareholders shall breach the covenants set forth in such sections, including without limitation, actual, punitive, direct, indirectthe parties acknowledge that the minimum amount of Buyer's Loss shall be an amount equal to the Probex Stock. Nothing herein shall be construed as limiting the amount of Buyer's Loss in the event of such a breach, or consequential damages and all attorney’s fees and court costs recoverable by limiting any other remedies available to the injured party Buyer at law or parties arising out of litigation that is currently pending against Seller or arising from facts which occurred prior to Closing which, in the case of litigation, the defense of which is not being defended by Seller’s insurance carrier or, if the same results in or has resulted in a verdict or damages to be paid, the same is not being paid by Seller’s insurance companyequity. (b) Losses resulting from In the breach event a claim against a Buyer Indemnified Party arises to which the indemnity of any representationsSection 9.2(a) of this Agreement is applicable, warranties, covenants or agreements made notice shall be given promptly by the Buyer Indemnified Party to Seller or and the Shareholders in this Agreement or and Seller and the Other Agreements. Any Loss for which an Indemnified Person (as defined below) is entitled to be indemnified under this Section 10.1 shall be promptly set off against the shares held in the Indemnity Escrow Account and cancelled. The number of shares to be cancelled shall be equal to the Share Price on the date on which such shares are cancelled; provided, however, that the indemnification provided herein by the Minority Shareholder shall be limited to thirty percent (30%) of any Losses for which an Indemnified Person is entitled to be indemnified under this Section 10.1, that the sole recourse of such Indemnified Person with respect to the Minority Shareholder’s share of such Losses shall be the set off of such Losses against the Minority Shareholder Shares held in the Minority Shareholder Escrow Account and that the Minority Shareholder shall have no further liability, personal or otherwise, under such indemnification.Shareholders shall

Indemnification by Seller and the Shareholders. (a) Seller and the Shareholders hereby jointly and severally agree to indemnify, defend shall indemnify and hold harmless Buyer harmless and USDATA and each director, officer, employee, agent and affiliate of Buyer and USDATA (each, a "Buyer Indemnified Party"), from and against, and agree promptly to defend each Buyer Indemnified Party from and reimburse each Buyer Indemnified Party for, any and all actions, suits, proceedings (including any investigations or inquiries), losses, damages, costs, expenses, liabilities, obligations and claims of any kind or nature whatsoever which may be incurred by or asserted against or involve a Buyer Indemnified Party, whether or not disclosed, including, without limitation, reasonable attorneys' fees and other legal costs and expenses ("Buyer's Losses"), arising out of or in any Losses (defined below) in respect of the followingway relating to: (ai) Losses resulting in bodily injury, wrongful death, and/or property damages, including without limitation, actual, punitive, direct, indirect, or consequential damages and all attorney’s fees and court costs recoverable any breach by the injured party or parties arising out of litigation that is currently pending against Seller or arising from facts which occurred prior the Shareholders of any representation or warranty set forth in this Agreement or in any document delivered hereunder; (ii) any Excluded Obligations; or (iii) any failure by Seller or the Shareholders to Closing whichcarry out, perform, satisfy and discharge any covenants, agreements, undertakings, liabilities or obligations to be performed by any of them pursuant to the terms of this Agreement or any of the documents delivered by them pursuant to this Agreement. Notwithstanding any other provision of this Section 9.2, Seller and the Shareholders shall not have any liability to USDATA or Buyer for a breach of any representation, warranty or covenant (other than with respect to Excluded Obligations and the matters contained in Sections 4.16 and 4.19) unless and until the aggregate Buyer's Losses incurred by Seller for all breaches of such provisions total more than $100,000 (the "Seller's Floor"), and in the case event that the Buyer's Losses exceed the Seller's Floor, Seller shall be liable to Buyer and USDATA for the entirety of litigation, the defense amount of which is not being defended by Seller’s insurance carrier or, if the same results in or has resulted in a verdict or damages to be paid, the same is not being paid by Seller’s insurance companyBuyer's Losses. (b) Losses resulting from In the breach event a claim against a Buyer Indemnified Party arises to which the indemnity of any representationsSection 9.2(a) of this Agreement is applicable, warranties, covenants or agreements made notice shall be given promptly by the Buyer Indemnified Party to Seller or and the Shareholders in this Agreement or and Seller and the Other Agreements. Any Loss for which an Shareholders shall have the right to control all settlements (unless the Buyer Indemnified Person (as defined belowParty agrees to assume the cost of settlement) is entitled and to be indemnified under this Section 10.1 shall be promptly set off against the shares held in the Indemnity Escrow Account select lead counsel to defend any and cancelled. The number of shares to be cancelled shall be equal to the Share Price on the date on which all such shares are cancelled; provided, however, that the indemnification provided herein by the Minority Shareholder shall be limited to thirty percent (30%) of any Losses for which an Indemnified Person is entitled to be indemnified under this Section 10.1, that claims at the sole recourse cost and expense of such Indemnified Person with respect to the Minority Shareholder’s share of such Losses shall be the set off of such Losses against the Minority Shareholder Shares held in the Minority Shareholder Escrow Account and that the Minority Shareholder shall have no further liability, personal or otherwise, under such indemnification.Seller and

Indemnification by Seller and the Shareholders. Seller Subject to the limitations contained in this Section 6, Seller, each of Xxxxxxx Xxxx, Xxxxxx X. Xxxx, Xxxx Xxxx Xxxxxxx and Xxxxx Xxxx Xxxxxxxxx (collectively, the Shareholders hereby “Xxxx Family Shareholders”), and their respective successors and permitted assigns will subsequent to the Closing, jointly and severally agree to indemnify, defend indemnify and hold harmless Buyer, its subsidiaries and their affiliates and their respective officers, directors, employees and agents (individually, a “Buyer harmless Indemnified Party” and collectively, the “Buyer Indemnified Parties”) from and against any Losses (defined below) and in respect of all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, orders, judgments, fines, penalties, costs and expenses (including the followingreasonable fees, disbursements and expenses of attorneys, accountants and consultants) 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) sustained, suffered or incurred by or made against (collectively “Losses” and individually a “Loss”) any Buyer Indemnified Party arising out of, based upon or in connection with: (a) Losses resulting in bodily injury, wrongful death, and/or property damages, including without limitation, actual, punitive, direct, indirect, fraud or consequential damages and all attorney’s fees and court costs recoverable an intentional misrepresentation by the injured party or parties arising out of litigation that is currently pending against Seller or arising from facts which occurred prior to Closing which, any Shareholder of any of its representations or warranties in the case of litigation, the defense of which is not being defended by Seller’s insurance carrier or, if the same results this Agreement or in any Schedule or has resulted agreement delivered under or in a verdict or damages to be paid, the same is not being paid by Seller’s insurance company.connection with this Agreement; (b) Losses resulting from the any breach of any representations, warranties, covenants representation or agreements warranty made by Seller or the Shareholders any Shareholder in this Agreement or in any Schedule or agreement delivered under or in connection with this Agreement; (c) any breach of any covenant or agreement made by Seller or any Shareholder in this Agreement or in any Schedule or agreement delivered under or in connection with this Agreement; (d) any liability relating to Seller’s failure to comply with the Other Agreements. Any Loss provisions of any applicable bulk sales, fraudulent conveyance or other law for the protection of creditors; (e) any Excluded Liability ; or (f) any liability for (i) any and all Taxes imposed on Seller (or any predecessor) or the Subject Assets or for which an Indemnified Person Seller may otherwise be liable (as defined below) is entitled to be indemnified under this Section 10.1 shall be promptly set off against by reason of transferee liability or otherwise), for any taxable year or period that ends on or before the shares held in the Indemnity Escrow Account and cancelled. The number of shares to be cancelled shall be equal to the Share Price on the date on which such shares are cancelled; providedClosing Date and, however, that the indemnification provided herein by the Minority Shareholder shall be limited to thirty percent (30%) of any Losses for which an Indemnified Person is entitled to be indemnified under this Section 10.1, that the sole recourse of such Indemnified Person with respect to any period that includes (but does not end on) the Minority Shareholder’s share Closing Date, the portion of such period deemed to end on and include the Closing Date, (ii) any and all Taxes imposed on a member of a consolidated, combined or unitary group of which Seller or any predecessor is or was a member prior to the Closing Date; and (iii) any failure to timely pay any and all Taxes required to be borne by Seller pursuant to Section 1.10 or Section 1.2(b)(v). Subject to the limitations contained in this Section 6, each of Xxxxxx Xxxxxx, Xxxx Xxxxxxx , Xxxx Xxxxxxx (collectively, the “Raport Family Shareholders”), and their respective successors and permitted assigns, will subsequent to the Closing, jointly and severally indemnify and hold harmless the Buyer Indemnified Parties from and against and in respect of all Losses sustained, suffered or incurred by or made against any Buyer Indemnified Party arising out of, based upon or in connection with any breach of any representation or warranty made by any Raport Family Shareholder in Section 2A of this Agreement. Claims under clauses (a) through (f) of this Section 6.1 and under the preceding paragraph against the Raport Family Shareholders shall be the set off hereinafter collectively referred to as “Buyer Indemnifiable Claims,” and Losses in respect of such Losses against the Minority Shareholder Shares held in the Minority Shareholder Escrow Account and that the Minority Shareholder claims shall have no further liability, personal or otherwise, under such indemnificationbe hereinafter collectively referred to as “Buyer Indemnifiable Losses.”

Indemnification by Seller and the Shareholders. Seller and each of the Shareholders hereby jointly and severally agree agrees subsequent to indemnify, defend the Closing to indemnify and hold Buyer, Nextera, Holdings, and their respective subsidiaries and affiliates and persons serving as officers, directors, partners, managers, shareholders, members, employees and agents thereof (other than the Shareholders, except to the extent of Liabilities incurred in their capacities as an officer, director or employee of Buyer after the Closing) (individually a "Buyer Indemnified Party" and collectively the "Buyer Indemnified Parties") harmless from and against any Losses (defined below) in respect Damages which may be sustained or suffered by any of them arising out of or based upon any of the followingfollowing matters: (a) Losses resulting in bodily injuryfraud, wrongful death, and/or property damages, including without limitation, actual, punitive, direct, indirect, intentional misrepresentation or consequential damages and all attorney’s fees and court costs recoverable by the injured party cause or parties arising out knowledge of litigation that is currently pending against Seller a deliberate or arising from facts which occurred prior to Closing which, in the case of litigation, the defense of which is not being defended by Seller’s insurance carrier or, if the same results in or has resulted in a verdict or damages to be paid, the same is not being paid by Seller’s insurance company. (b) Losses resulting from the willful breach of any representations, warrantieswarranties or covenants of Seller or any of the Shareholders under this Agreement or in any certificate, covenants schedule or agreements made by exhibit delivered pursuant hereto (collectively, "Fraud Claims"); (b) any breach of any representation or warranty of the Shareholders set forth in Section 5.1 of this Agreement (collectively, "Ownership Claims"); (c) except for the Assumed Liabilities, any liability of Seller or the Shareholders for Taxes arising from the activities of Seller and all events and transactions on or prior to the Closing and any breach of the representations and warranties set forth in Section 4.22 hereof and any covenant with respect to Taxes or tax related matters (collectively, "Tax Claims"); (d) except for the Assumed Liabilities, any Excluded Liability and any Liability imposed upon Buyer by reason of Buyer's status as transferee of the Business or the Assets (collectively, "Excluded Liability Claims"); (e) other than Fraud Claims, Ownership Claims, Tax Claims or Excluded Liability Claims, any other breach of any representation, warranty or covenant of Seller or the Shareholders under this Agreement or the Other Agreementsin any schedule or exhibit delivered pursuant hereto, or by reason of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting a breach of such representations, warranties or covenants (collectively, "General Claims"). Any Loss for which an Indemnified Person (as defined below) is entitled to be indemnified under this Section 10.1 shall be promptly set off against the shares held in the Indemnity Escrow Account and cancelled. The number of shares to be cancelled shall be equal In addition, each Shareholder severally, but not jointly, agrees subsequent to the Share Price on the date on which such shares are cancelled; providedClosing to indemnify and hold all Buyer Indemnified Parties harmless from and against any damages, howeverliabilities, that the indemnification provided herein by the Minority Shareholder shall be limited to thirty percent losses, taxes, fines, penalties, costs, and expenses (30%including, without limitation, reasonable fees of counsel) of any Losses for 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 an Indemnified Person is entitled to may be indemnified under this Section 10.1sustained or suffered by any of them arising out of or based upon fraud, that the sole recourse intentional misrepresentation or any breach (whether or not deliberate or willful) of any representation or warranty of such Indemnified Person with respect to the Minority Shareholder’s share Shareholder contained in Section 5, or by reason of any claim, 56 action or proceeding asserted or instituted growing out of any matter or thing constituting a breach of such Losses shall be the set off of such Losses against the Minority Shareholder Shares held in the Minority Shareholder Escrow Account and that the Minority Shareholder shall have no further liabilityrepresentation or warranty (collectively, personal or otherwise, under such indemnification"Individual Claims").

Indemnification by Seller and the Shareholders. Subject to the limitations set forth in SECTION 7.4, Seller, Kilat and each of the Shareholders, jointly and severally, unconditionally, absolutely and irrevocably agree to and shall defend, indemnify and hold harmless Buyer, Centerpost, and each of the officers, directors, employees, counsel, successors, assigns, and legal representatives of Buyer and Centerpost (Buyer, Centerpost and such persons are collectively referred to as the "BUYER'S INDEMNIFIED PERSONS") from and against, and shall reimburse Buyer's Indemnified Persons for, each and every Loss paid, imposed on or incurred by Buyer's Indemnified Persons, directly or indirectly, relating to, resulting from or arising out of any inaccuracy in any representation or warranty of Seller, Kilat or the Shareholders under the Option Agreement, the Transaction Agreements or the Exhibits thereto or any agreement, certificate or document delivered by Seller, Kilat or the Shareholders pursuant hereto in any respect, or any breach or nonfulfillment of any covenant, agreement or other obligation of Seller, Kilat or the Shareholders under the Option Agreement, the Transaction Agreements or the Exhibits thereto or any agreement, certificate or document to be delivered by Seller, Kilat or the Shareholders pursuant hereto (including, without limitation, Seller s obligation to pay Taxes pursuant to SECTION 1.7). With respect to matters not involving Proceedings brought or asserted by third parties against Buyer's Indemnified Persons, within thirty (30) days after notification from Buyer's Indemnified Persons supported by reasonable documentation setting forth the nature of the circumstances entitling Buyer's Indemnified Persons to indemnity hereunder, Seller, Kilat and the Shareholders hereby jointly shall, at no cost or expense to Buyer's Indemnified Persons, diligently commence resolution of such matters in a manner reasonably acceptable to Buyer's Indemnified Persons and severally agree shall diligently and timely prosecute such resolution to indemnifycompletion; PROVIDED, defend HOWEVER, with respect to those valid claims that may be satisfied by payment of a liquidated sum of money and hold which are not disputed reasonably and in good faith by Seller, Kilat and the Shareholders, Seller, Kilat and the Shareholders shall promptly pay the amount so claimed. If litigation or any other Proceeding is commenced or threatened, the provisions of SECTION 7.3 shall control over the immediately preceding sentence. Buyer harmless from and Centerpost shall be entitled to offset against any Losses (defined below) in respect of the following: (a) Losses resulting in bodily injuryamounts owed by Buyer or Centerpost, wrongful death, and/or property damages, including without limitation, actual, punitive, direct, indirect, or consequential damages and all attorney’s fees and court costs recoverable by the injured party or parties arising out of litigation that is currently pending against Seller or arising from facts which occurred prior to Closing which, in as the case of litigationmay be, the defense of which is not being defended by to Seller’s insurance carrier or, if the same results in or has resulted in a verdict or damages to be paid, the same is not being paid by Seller’s insurance company. (b) Losses resulting from the breach of any representations, warranties, covenants or agreements made by Seller Kilat or the Shareholders in this under any Transaction Agreement any amounts owed by Seller, Kilat or the Other Agreements. Any Loss for which an Indemnified Person (as defined below) is entitled Shareholders, respectively, to be indemnified under this Section 10.1 shall be promptly set off against the shares held in the Indemnity Escrow Account and cancelled. The number of shares to be cancelled shall be equal to the Share Price on the date on which such shares are cancelled; provided, however, that the indemnification provided herein by the Minority Shareholder shall be limited to thirty percent (30%) of any Losses for which an Indemnified Person is entitled to be indemnified under this Section 10.1, that the sole recourse of such Indemnified Person with respect to the Minority Shareholder’s share of such Losses shall be the set off of such Losses against the Minority Shareholder Shares held in the Minority Shareholder Escrow Account and that the Minority Shareholder shall have no further liability, personal Buyer or otherwise, under such indemnificationCenterpost hereunder.