Common use of Indemnification by Shareholder Clause in Contracts

Indemnification by Shareholder. Shareholder hereby agrees to defend, indemnify and hold harmless Purchaser, the Business, and the respective successors, assigns and affiliates of the foregoing entities (collectively, the “Purchaser Indemnitees”) from and against any and all losses, diminish in value, liabilities, damages, assessments, judgments, costs and expenses, including reasonable attorneys’ fees (both those incurred in connection with the defense or prosecution of an indemnifiable claim and those incurred in connection with the enforcement of this provision) (collectively, “Purchaser Losses”), caused by, or resulting from or in any way arising out of: (a) (i) breaches of representations or warranties hereunder on the part of Shareholder; and (ii) failure by Shareholder to perform or otherwise fulfill any undertaking or other agreement or obligation hereunder; (b) claims occurring on or prior to the Effective Date as a result of, directly or indirectly, the sale of any product, performance, or services, by the Company on or before the Effective Date, or any other claim asserted against Purchaser or the Business arising from any action or inaction of Shareholder or the Business on or before the Effective Date. (c) (i) any and all taxes imposed on Shareholder or any Affiliate of Shareholder (including, without limitation, the Business) for, or relating to, any taxable periods commencing before the Effective Date, including, but not limited to, (a) any liability of the Companies under any tax sharing agreement, whether or not written; and (b) any tax liability resulting from the termination, as of the Effective Date, of the Business as a Shareholder of any consolidated, affiliated, combined, unitary or other similar tax group and (ii) liabilities of the Business or Shareholder as a result of prior filings of tax returns of federal, state, local, or any other tax subdivision thereof, heretofore filed by the Business prior to the Effective Date; and (d) any and all actions, suits, proceedings, claims or demands incident to any of the foregoing for such indemnification.

Indemnification by Shareholder. Except as otherwise provided in Section 6.3 with respect to Taxes, subject to the limitations set forth in Sections 10.1 and 10.3, from and after the Closing Date, Shareholder hereby agrees to defend, shall indemnify and hold harmless PurchaserBuyer and its Affiliates (including, following the Closing, the BusinessCompany), and the in each such case their respective successorsdirectors, assigns officers, employees and affiliates of the foregoing entities agents (collectively, the “Purchaser Indemnitees”"Buyer Indemnified Parties") from and against against, and in respect of, and shall reimburse any Buyer Indemnified Parties for, any and all lossesDamages, diminish in valuesuffered or incurred by any Buyer Indemnified Party resulting from, liabilities, damages, assessments, judgments, costs and expenses, including reasonable attorneys’ fees (both those incurred arising out of or in connection with the defense or prosecution of an indemnifiable claim and those incurred in connection with the enforcement of this provision) (collectively, “Purchaser Losses”), caused by, or resulting from or in any way arising out ofwith: (a) (i) breaches any inaccuracy in or other breach of representations any representation or warranties hereunder warranty made by the Company and/or Shareholder in this Agreement; or (ii) any failure by Shareholder or, prior to the Closing, the Company, to duly perform or comply, in whole or in part, with any covenant, agreement or undertaking on the part of ShareholderShareholder or the Company, as applicable, contained in this Agreement; and or (iiiii) failure any Excluded Assets or the ownership, operation, servicing, lease or use thereof, or any action taken with respect thereto, by Shareholder or any of its Affiliates (including, prior to perform or otherwise fulfill any undertaking or other agreement or obligation hereunder;the Closing, the Company); or (biv) claims occurring any Excluded Liabilities; or (v) any actual or asserted Claims against the Company (whether for indemnification or otherwise) under any Disposition Agreement entered into prior to the Closing related to the sale prior to Closing of any securities, assets, Financing Contracts, Property, operations or business of the Company (other than any obligation arising after the Closing Date under any such Disposition Agreement, solely to the extent any such obligation is required to be performed by theCompany after the Closing Date); or (vi) any violation by the Company on or prior to the Effective Closing Date as a result of any applicable Law; or (vii) any Environmental Loss (including compensatory, punitive and consequential Damages required to be paid by the Company) resulting from, arising out of, directly based on or indirectlyrelating to any (A) Property (including any Portfolio Property but excluding the Excluded Assets) owned, operated, leased for use or controlled by the sale Company or (B) operations or business of the Company or (C) Transferred Asset, in each case, existing as of the Closing or at any producttime prior to the Closing (regardless of whether such Environmental Loss is known or unknown or asserted or unasserted as of the Closing); or (viii) any civil, performancecriminal or administrative Claim (including but not limited to any counterclaims or crossclaims), relating to the Company, any of the Transferred Assets or servicesany of the Excluded Assets arising out of or based on or with respect to any circumstance existing or any action or event occurring prior to the Closing, whether or not pending or threatened on the date hereof or at the Closing, and whether brought, made or instigated by any Governmental Entity or any other Person, including without limitation Claims (A) relating to the employment or termination of employment, including a constructive termination, by the Company on or before the Effective Dateof, or any other claim asserted against Purchaser or failure of the Business arising from any action or inaction of Shareholder or the Business on or before the Effective Date. (c) (i) any and all taxes imposed on Shareholder or any Affiliate of Shareholder (including, without limitation, the Business) for, or relating toCompany to hire, any taxable periods commencing before the Effective Date, individual (including, but not limited to, any Employee) attributable to any actions or inactions prior to the Closing, and (aB) by any Employee for workers' compensation and/or related medical benefits incurred after the Closing which relate to an injury or illness originating prior to the Closing; or (ix) except as provided in Section 6.2, any Employee Benefit Plan (other than a Company Benefit Plan) and any Title IV Plan, including any Multiemployer Plan, that Shareholder, the Company or any ERISA Affiliate maintains, contributes to or is obligated to contribute to, at any time (prior to the Closing), including any liability (A) to the PBGC under Title IV of ERISA; (B) relating to a Multiemployer Plan; (C) with respect to non-compliance with the Companies under notice and benefit continuation requirements of COBRA; (D) with respect to any tax sharing agreementnon-compliance with ERISA or any other applicable Laws; or (E) with respect to any suit, proceeding or Claim which is brought against Buyer or the Company, any Employee Benefit Plan (other than a Company Benefit Plan), Title IV Plan, any fiduciary or former fiduciary of any such Employee Benefit Plan (other than a Company Benefit Plan) or Title IV Plan; or (x) except as provided in Section 6.2, WARN or any other Law or civil law notice, termination pay in lieu thereof or Damages relating to the termination or dismissal (including constructive termination or dismissal) by the Company of any or all Employees (whether or not written; and (bconstituting Transferred Employees) any tax liability resulting from the termination, as of the Effective Date, of the Business as a Shareholder of any consolidated, affiliated, combined, unitary or other similar tax group and (ii) liabilities of the Business or Shareholder as a result of prior filings of tax returns of federal, state, local, or any other tax subdivision thereof, heretofore filed by the Business prior to the Effective Date; and (d) any and all actions, suits, proceedings, claims or demands incident to any of the foregoing for such indemnificationClosing.

Indemnification by Shareholder. Subject to the provisions of paragraph 13.4, Shareholder hereby agrees to shall promptly indemnify, defend, indemnify and hold harmless PurchaserParent, the Business, Surviving Corporation and the respective successorsdirectors, assigns officers, stockholders, employees and affiliates agents of the foregoing entities (collectively, the “Purchaser Indemnitees”) from and each against any and all losses, diminish in valuecosts, liabilitiesand expenses (including reasonable cost of investigation, damages, assessments, judgments, court costs and expenses, including reasonable attorneys’ legal fees (both those incurred in connection with the defense or prosecution of an indemnifiable claim actually incurred) and those incurred in connection with the enforcement of this provision) (collectively, “Purchaser Losses”), caused by, or other damages resulting from or in any way arising out of: (a) (i) breaches of representations or warranties hereunder on the part of Shareholder; and (ii) failure by Shareholder to perform or otherwise fulfill any undertaking or other agreement or obligation hereunder; (b) claims occurring on or prior to the Effective Date as a result of, directly or indirectly, the sale of any product, performance, or services, by the Company on or before the Effective Date, or any other claim asserted against Purchaser or the Business arising from any action or inaction of Shareholder or the Business on or before the Effective Date. (c) (i) any and all taxes imposed on breach by either Company or Shareholder of any of the in covenants, obligations, representations or warranties or untruth of any representation or warranty contained in this Agreement (payment for which is to be initially made pursuant to the offset provisions of Section 2.3 hereof) or any Affiliate certificate or Closing Document of Company and/or Shareholder required to be delivered pursuant to this Agreement (includingwhich Closing Documents are the following: Operating Agreement, without limitationLease, the Business) forEmployment Agreement, or relating toAssumption Agreement, any taxable periods commencing before the Effective DateEscrow Agreement, includingRegistration Rights Agreement, but not limited toLetter Agreement), (aii) any liability of Company not expressly retained by Surviving Corporation or assumed by Parent pursuant to Paragraph 4.11(4) hereof, and (iii) except as relates to the Companies under Continuing Liabilities any tax sharing agreement, claim (whether or not written; and (bdisclosed herein) that is brought or asserted by any tax liability resulting from the termination, as third party(s) against Parent or Surviving Corporation arising out of the Effective Dateownership, of the Business as a Shareholder of any consolidatedlicensing, affiliated, combined, unitary operation or other similar tax group and (ii) liabilities conduct of the Business or Shareholder as a result Assets or the conduct of prior filings any of tax returns Company's employees, agents or independent contractors, relating to all periods of federal, state, local, or any other tax subdivision thereof, heretofore filed by the Business time prior to the Transaction Effective Date; and . Any indemnification payment made pursuant to this Article shall include interest at a floating rate equal to two points over the prime rate of Bankers Trust Company established from time to time (dthe "Rate") any and all actionspayable for the period measured from the date that the loss, suitscost, proceedings, claims expense or demands incident to any damage was incurred until the date of the foregoing for such indemnificationpayment.

Indemnification by Shareholder. Shareholder hereby agrees to defend(a) The Purchaser and the Company and their respective Affiliates and their respective officers, indemnify directors, shareholders, agents, representatives, consultants, employees and hold harmless Purchaser, the Businessaffiliates, and the all of their respective successorsheirs, successors and permitted assigns and affiliates of the foregoing entities (collectively, the “"Purchaser Indemnitees”Indemnified Parties") from shall be indemnified and held harmless by Shareholder solely out of the portion of the Merger Consideration deposited in the Escrow Account, against and in respect of the net amount (determined after deduction of the amount of any insurance proceeds recovered and any benefits inuring to the Purchaser as a result of the timing for income tax purposes of deductions for such losses as compared to the timing of recoveries under insurance or this Section 11.2): (i) of any and all liabilities, obligations, losses, diminish in value, liabilities, damages, assessmentsdiminutions of value, judgmentsliens and deficiencies of any kind or nature ("Losses") not accrued or reserved for in the Final Closing Statement which exist, costs or which are imposed on, incurred by or asserted against any one or more of the Purchaser Indemnified Parties, (A) based upon, resulting from or arising out of, or as to which there was, any breach or inaccuracy of any representation, warranty, statement, certification, agreement or covenant made by the Company or Shareholder in this Agreement, any Related Agreement, any Disclosure Schedule hereto or thereto; (B) based upon, resulting from or arising out of any claim, litigation or proceeding brought by any third-party based upon, resulting from, arising out of or concerning any event, fact or circumstance, if and expensesto the extent that such event, including reasonable attorneys’ fees fact or circumstance arises out of or relates to the ownership or operation of the Company prior to Closing; (both those incurred C) arising out of the cost of any required remediation under Environmental Laws of any of the properties now or previously owned, leased, used, occupied or contaminated by the Company, if the materials and/or conditions requiring such remediation existed as of the Closing; (D) in the nature of Taxes for periods through the Closing for which the Company is liable to the extent that an appropriate tax authority has asserted a claim and (i) such Taxes are not reflected on the Financial Statements and did not arise in the ordinary course of business after the date thereof, (ii) such Taxes should have been but were not reflected in any return filed by the Company prior to the Closing, (iii) such Taxes were required to be paid prior to the Closing and were not so paid, or (iv) such Taxes result from the failure by the Company prior to the Closing to comply with any legal requirements relating to information reporting or withholding and payment over of taxes with respect to payments made to third parties; (E) the amount of any brokerage commission, finder's fee or like payment in connection with the defense or prosecution transactions contemplated in this Agreement to the extent not included in Company Expenses included in the calculation of an indemnifiable claim and those incurred in connection with the enforcement of this provision) (collectively, “Purchaser Losses”), caused by, or resulting from or in any way arising out of:Merger Consideration; (a) (i) breaches of representations or warranties hereunder on the part of Shareholder; and (ii) failure by Shareholder to perform or otherwise fulfill any undertaking or other agreement or obligation hereunder; (b) claims occurring on or prior to the Effective Date as a result of, directly or indirectly, the sale of any product, performance, cost or services, by the Company on or before the Effective Date, or any other claim asserted against Purchaser or the Business arising from any action or inaction of Shareholder or the Business on or before the Effective Date. (c) (i) any and all taxes imposed on Shareholder or any Affiliate of Shareholder expenses (including, without limitation, the Businesssettlement costs and reasonable attorneys', accountants' and experts' fees and court costs) for, or relating to, any taxable periods commencing before the Effective Date, including, but not limited to, (a) any liability of the Companies under any tax sharing agreement, whether or not written; and (b) any tax liability resulting from the termination, as of the Effective Date, of the Business as a Shareholder of any consolidated, affiliated, combined, unitary or other similar tax group and (ii) liabilities of the Business or Shareholder as a result of prior filings of tax returns of federal, state, local, or any other tax subdivision thereof, heretofore filed incurred by the Business prior to the Effective Date; and (d) any and all actions, suits, proceedings, claims or demands incident to Purchaser Indemnified Parties in connection with any of the foregoing (including, without limitation, any reasonable cost or expense incurred by Purchaser Indemnified Parties in enforcing their rights pursuant to this Section 11.2). Each of the above is for purposes of this Agreement a "Purchaser Indemnified Obligation." (b) Claims for indemnification under Section 11.2(a)(i)(B), (C) or (D), above, may be made regardless of whether or not the matter giving rise to such indemnificationclaim would constitute a breach of a representation and warranty made in this Agreement, any Related Agreement, any Disclosure Schedule hereto and thereto or any other written document. No Purchaser Indemnified Party shall be required to make any claim or demand against any other person or entity prior to the making of any claim or demand for indemnification or at any other time. Shareholder agrees that, notwithstanding any other provision of this Agreement, any Related Agreement or applicable Legal Requirements, Purchaser Indemnified Parties shall offset all valid claims for indemnification against the Escrow Account in accordance with the terms of the Escrow Agreement.

Indemnification by Shareholder. Subject to the provisions of paragraph 13.4, Shareholder hereby agrees to shall promptly indemnify, defend, indemnify and hold harmless PurchaserParent, the Business, Surviving Corporation and the respective successorsdirectors, assigns officers, stockholders, employees and affiliates agents of the foregoing entities (collectively, the “Purchaser Indemnitees”) from and each against any and all losses, diminish in valuecosts, liabilitiesand expenses (including reasonable cost of investigation, damages, assessments, judgments, court costs and expenses, including reasonable attorneys’ legal fees (both those incurred in connection with the defense or prosecution of an indemnifiable claim actually incurred) and those incurred in connection with the enforcement of this provision) (collectively, “Purchaser Losses”), caused by, or other damages resulting from or in any way arising out of: (a) (i) breaches of representations or warranties hereunder on the part of Shareholder; and (ii) failure by Shareholder to perform or otherwise fulfill any undertaking or other agreement or obligation hereunder; (b) claims occurring on or prior to the Effective Date as a result of, directly or indirectly, the sale of any product, performance, or services, by the Company on or before the Effective Date, or any other claim asserted against Purchaser or the Business arising from any action or inaction of Shareholder or the Business on or before the Effective Date. (c) (i) any and all taxes imposed on breach by either Company or Shareholder of any of the in covenants, obligations, representations or warranties or untruth of any representation or warranty contained in this Agreement (payment for which is to be initially made pursuant to the 32 38 offset provisions of Section 2.3 hereof) or any Affiliate certificate or Closing Document of Company and/or Shareholder required to be delivered pursuant to this Agreement (includingwhich Closing Documents are the following: Operating Agreement, without limitationLease, the Business) forEmployment Agreement, or relating toAssumption Agreement, any taxable periods commencing before the Effective DateEscrow Agreement, includingRegistration Rights Agreement, but not limited toLetter Agreement), (aii) any liability of Company not expressly retained by Surviving Corporation or assumed by Parent pursuant to Paragraph 4.11(4) hereof, and (iii) except as relates to the Companies under Continuing Liabilities any tax sharing agreement, claim (whether or not written; and (bdisclosed herein) that is brought or asserted by any tax liability resulting from the termination, as third party(s) against Parent or Surviving Corporation arising out of the Effective Dateownership, of the Business as a Shareholder of any consolidatedlicensing, affiliated, combined, unitary operation or other similar tax group and (ii) liabilities conduct of the Business or Shareholder as a result Assets or the conduct of prior filings any of tax returns Company's employees, agents or independent contractors, relating to all periods of federal, state, local, or any other tax subdivision thereof, heretofore filed by the Business time prior to the Transaction Effective Date; and . Any indemnification payment made pursuant to this Article shall include interest at a floating rate equal to two points over the prime rate of Bankers Trust Company established from time to time (dthe "Rate") any and all actionspayable for the period measured from the date that the loss, suitscost, proceedings, claims expense or demands incident to any damage was incurred until the date of the foregoing for such indemnificationpayment.

Indemnification by Shareholder. Shareholder hereby agrees to defend, shall ------------------------------ indemnify and hold harmless Purchaser, the Business, Buyer and the respective successors, assigns and its affiliates of the foregoing entities (collectively, the “Purchaser Indemnitees”) from and against any and all lossesLosses (as defined in Section 8.1(c)) incurred by any of such -------------- indemnified parties in any way relating to, diminish arising out of or resulting from: (i) The breach of any of the material representations or warranties made by Advantage or Shareholder in valuethis Agreement; (ii) The breach or the failure of performance by Advantage or Shareholder of any of the material covenants, liabilitiespromises or agreements that any of them is to perform under this Agreement; (iii) Taxes (including interest, damagespenalties and other additions to tax that may become payable in respect thereof) which are (i) Transfer Taxes (as defined in Section 5.10(d)) that Buyer or Advantage pays (in whole or in part) or which result in liens or encumbrances on any assets of Buyer or Advantage, assessmentsand/or (ii) assessed or imposed on or otherwise become payable by Advantage or Buyer in respect of Advantage's income, judgmentsbusiness, costs and expensesproperty or operations in any period ending prior to or on the Closing Date, including reasonable attorneys’ fees but not limited to any Taxes for which Shareholder is liable in accordance with the provisions of Section 5.10; (both those incurred iv) The death of or injury to any person or damage to property that occurred prior to the Closing and arose out of or in connection with the defense business or prosecution operations of an indemnifiable claim Advantage prior to the Closing; (v) Except as disclosed on Schedule 8.1, all employment- ------------ related claims, except unemployment claims, and those incurred causes of action, and all other claims and causes of action, that have arisen or arise out of or in connection with the enforcement business or operations of this provision) (collectively, “Purchaser Losses”), caused by, or resulting from or in any way arising out of: (a) (i) breaches of representations or warranties hereunder on the part of Shareholder; and (ii) failure by Shareholder to perform or otherwise fulfill any undertaking or other agreement or obligation hereunder; (b) claims occurring on or Advantage conducted prior to the Effective Closing; and (vi) The existence prior to the Closing Date as a result of, directly or indirectly, the sale of any producthazardous or toxic substances, performancewastes or materials, defined as such or governed by any applicable Environmental Law ("Hazardous Materials") upon, about or beneath any property of Advantage or migrating or threatening to migrate from any of such properties, or services, by the Company on or before the Effective Date, or existence of a violation of any other claim asserted against Purchaser Environmental Law pertaining to such properties or the Business arising from any action or inaction operations of Shareholder or the Business on or before the Effective Date. Advantage (c) (i) any and all taxes imposed on Shareholder or any Affiliate of Shareholder (including, without limitation, the Business) for, or relating to, any taxable periods commencing before the Effective Date, including, but not limited to, (a) any liability violations of laws dealing with the Companies under any tax sharing agreementgeneration, whether transport, treatment, storage or not written; and (b) any tax liability resulting from the termination, as disposal of the Effective Date, of the Business as a Shareholder of any consolidated, affiliated, combined, unitary hazardous or other similar tax group and (ii) liabilities regulated material), regardless of whether the Business existence of such Hazardous Materials or Shareholder as a result the violation of prior filings of tax returns of federal, state, local, or any other tax subdivision thereof, heretofore filed by the Business Environmental Law arose prior to the Effective Date; and (d) any and all actionspresent ownership or operation of such properties by Advantage or was disclosed to Buyer by Advantage, suits, proceedings, claims Shareholder or demands incident to any of the foregoing for such indemnificationotherwise.