Common use of Indemnification by Shareholder Clause in Contracts

Indemnification by Shareholder. Subject to the terms and conditions of this Article and Section 9.6, Shareholder agrees to indemnify, defend and hold Parent, Merger Sub and Merger Sub II and their respective directors, officers, agents, attorneys and affiliates (collectively, "Parent Indemnitees") harmless from and against all losses, claims, obligations, demands, assessments, penalties, liabilities, costs, damages, attorneys' fees and expenses (collectively, "Damages"), asserted against or incurred by any Parent Indemnitee by reason of or resulting from: (i) a breach of any representation, warranty or covenant of the Company or Shareholder contained herein (excluding the representations set forth in the second sentence of Section 3.9 above) or in any agreement executed in connection with the transactions contemplated hereby; (ii) any amounts not collected in cash or as an offsetting credit to the Company and/or Surviving Corporation with respect to the Macmillan Holdback Receivables; (iii) any Damages in excess of $25,000 pertaining to the matter described in Item 2 of Schedule 3.1 of the Company Disclosure Statement; and (iv) the matter described in Item 2 of Schedule 3.16 of the Company Disclosure Statement; provided, however, that no claim shall be made for Damages under this Section 8.1 until, and such claims may be made only to the extent that, the dollar amount of all such claims for Damages shall exceed in the aggregate $100,000 (the "Threshold"); and provided further, however, that Shareholder's aggregate liability for Damages may not exceed fifty percent (50%) of the Merger Consideration. In addition, Shareholder (i) any fees, commissions or expenses of any financial advisor, investment banker, business broker or similar person or entity engaged by the Company or Shareholder; and (ii) any Company Liability not set forth on Schedule 3.9(b) of the Company Disclosure Statement (collectively, "Undisclosed Company Liabilities"), but only to the extent that such Undisclosed Company Liabilities, individually or in the aggregate, exceed the amount of any cash in the Company as of the Closing Date and not transferred to Shareholder and/or accounts receivable as of the Closing Date which are not included in Schedule 7.7 of the Company Disclosure Statement (excluding the Macmillan Holdback Receivables) and are subsequently collected; it being agreed that such indemnification is not subject to the Threshold and will be payable by Shareholder first, and not first deducted from the earn-out consideration. If Shareholder becomes liable for Damages, he shall be entitled, in his sole discretion, to satisfy any judgment or settlement of Damages, in whole or in part, by transferring Parent Common Stock to any Parent Indemnitee. For purposes of this Section 8.1, if Shareholder elects to so transfer Parent Common Stock, a share of Parent Common Stock shall be considered to have a value equal to the average closing price of the Parent Common Stock on the Nasdaq NMS for the trading days during the 60 calendar days immediately preceding the Closing Date.

Indemnification by Shareholder. (a) Subject to the terms and conditions of this Article and Section 9.610, after the Closing, Shareholder agrees to shall indemnify, defend and hold ParentBuyer and each of its affiliates, Merger Sub and Merger Sub II and their respective directors, officersofficers and employees and the successors and assigns of any of them (including, agentswithout limitation, attorneys the Company, the Subsidiaries and affiliates the Real Property Purchaser) (collectively, "Parent Indemnitees"the “Buyer Group”) harmless from and against all lossesdemands, claims, obligations, demandsactions or causes of action, assessments, penaltieslosses, damages, liabilities, costscosts and expenses (including, damageswithout limitation, attorneys' reasonable fees and expenses of counsel) (collectively, "“Damages"”), asserted against against, resulting to, imposed upon or incurred by any Parent Indemnitee member of the Buyer Group, directly or indirectly, by reason of or resulting from: : (i) a breach any misrepresentation or inaccuracy of any representationrepresentation or warranty made by Shareholder in this Agreement; provided, warranty however, that the matter described in item 8 on Schedule 3.20 (Environmental Matters) shall not be considered disclosed for purposes of this Section 10.01(a)(i); (ii) any breach by the Company prior to the Closing, or covenant any breach by Shareholder, any Affiliate Seller, or the Company of any covenant, agreement or obligation of contained in this Agreement; (iii) (A) all Taxes of the Company and the Subsidiaries with respect to any period ending on or prior to the Closing Date, (B) all real and personal property Taxes of the Company or Shareholder contained herein any Subsidiary or relating to the Amherst Property or the Xxxxxx Property, with a Lien date prior to the Closing Date, (excluding C) all Taxes of the representations set forth Company or the Subsidiaries for any Straddle Period (insofar as they are not allocable to a period after the Effective Time, determined as provided in Section 8.01), and (D) all Taxes of any Entity (other than the second sentence Company or any Subsidiary) which currently is or has been an affiliate of Section 3.9 abovethe Company which may be imposed on the Company or any Subsidiary; (iv) any defective or in nonstandard Food or other product manufactured, processed or sold by the Company or any agreement executed Subsidiary on or before the Closing; (v) any legal or accounting fees or expenses incurred by the Company prior to the Closing Date in connection with the transactions contemplated hereby; by this Agreement and not either paid prior to the Effective Time or reflected as a Liability on the Final Working Capital Statement; (iivi) any amounts not collected in cash liability or as an offsetting credit obligation arising out of or relating to the release or leak of ammonia by the Company, any Subsidiary, Shareholder or any Affiliate Seller on or before the Closing Date; (vii) any liability or obligation arising out of or relating to any suit or allegation that any product, product-line, equipment or method, used, manufactured, sold, owned, or operated by Shareholder, the Company, any Subsidiary, or the Business infringes any patent or other intellectual property of Xxxxxxx’x Fruit Processing Company and/or Surviving Corporation or The X.X. Xxxxxxx Company (or any of their respective assignees or successors in interest), including but not limited to, U.S. Xxx. No. 6,004,596 and U.S. Xxx. No. 6,874,409 (including any re-examination certificate(s) which may be issued with respect to the Macmillan Holdback Receivables; (iiieither) or any Damages in excess of $25,000 pertaining associated reissued patent(s) or any United States patent claiming priority thereto, whether relating to the matter described in Item 2 of Schedule 3.1 of use, manufacture, sale, ownership or operation before or after the Company Disclosure Statement; and (iv) the matter described in Item 2 of Schedule 3.16 of the Company Disclosure StatementClosing Date; provided, however, that no claim shall be made for Damages the indemnification obligations under this Section 8.1 until, and such claims may be made only to the extent that, the dollar amount of all such claims for Damages clause shall exceed in the aggregate $100,000 (the "Threshold"); and provided further, however, that Shareholder's aggregate liability for Damages may not exceed fifty percent (50%) of the Merger Consideration. In addition, Shareholder (i) any fees, commissions or expenses of any financial advisor, investment banker, business broker or similar person or entity engaged by the Company or Shareholder; and (ii) any Company Liability not set forth on Schedule 3.9(b) of the Company Disclosure Statement (collectively, "Undisclosed Company Liabilities"), but only apply to the extent that such Undisclosed Company Liabilitiesthe same arise from any changes implemented by Buyer; and (viii) any liability or obligation arising out of or relating to (A) the ownership or use of the real property, individually or buildings and improvements formerly used in the aggregateBusiness and located in Lorain, exceed Ohio, (B) the amount of any cash in the Company as ownership or use of the Closing Date and not transferred to Shareholder and/or accounts receivable as Chocolate Line, or (C) the Xxxxx Agreement (other than payment of the Closing Date which are not included in Schedule 7.7 of the Company Disclosure Statement (excluding the Macmillan Holdback Receivables) and are subsequently collected; it being agreed that such indemnification is not subject Xxxxx Indebtedness pursuant to the Threshold and will be payable by Shareholder first, and not first deducted from the earn-out consideration. If Shareholder becomes liable for Damages, he shall be entitled, in his sole discretion, to satisfy any judgment or settlement of Damages, in whole or in part, by transferring Parent Common Stock to any Parent Indemnitee. For purposes of this Section 8.1, if Shareholder elects to so transfer Parent Common Stock, a share of Parent Common Stock shall be considered to have a value equal to the average closing price of the Parent Common Stock on the Nasdaq NMS for the trading days during the 60 calendar days immediately preceding the Closing Date8.11).

Indemnification by Shareholder. Subject Shareholders, jointly and severally (except for subparagraph (i) below, for which the Jean Offill Grandchildren's Xxxxxxxxxxe Trust shall be solely liable, and subparagraph (j) below, for which the JMO Group shall be solely liable), indemnify AFI and each of its shareholders, officers, directors, subsidiaries, agents, employees and attorneys against any loss, damage, or expense (including, but not limited to, reasonable attorneys' fees) ("Damages"), incurred or sustained by AFI or any of its shareholders, officers, directors, or subsidiaries, agents, employees and attorneys (a) as a result of any breach of any term, provision, covenant or agreement contained in this Agreement by Shareholder and/or Corporation; (b) as a result of any inaccuracy in any of the representations or warranties made by Shareholders and/or Corporation in Article II of this Agreement; (c) as a result of any inaccuracy or misrepresentation in any certificate or other document or instrument delivered by Shareholders and/or Corporation in accordance with any provision of this Agreement; (d) arising out of any violation or claimed violation of any environmental laws and regulations associated with the Leased Premises and occurring (although the claim may be later asserted) prior to Closing; (e) any taxes of Corporation, for taxable periods ending on or before the Closing Date, not included in the Closing Balance Sheet, including, but not limited to, taxes as a result from audits by any taxing authority of Corporation's taxes for taxable periods ending prior to the Closing Date and any expenses incurred by AFI and/or Corporation in connection with said audits; (f) as a result of the existence of any liabilities or obligations of Corporation not included on the Closing Balance Sheet of Corporation attached hereto; (g) as a result of the operation of Corporation prior to Closing; (h) as a result of ownership of Shares prior to Closing. The obligations of Shareholders as set forth in Section 11.01(b) shall be subject to and limited by the following: (i) as a result of the violation by the Jean Offill Grandchildren'x Xxxxxxxxxle Trust of its representations, warranties and covenants contained in Section 2.36 herein; or (j) as a result of the violation by the JMO Group of its representations, warranties and covenants contained in Section 2.36 herein: (i) AFI shall give written notice to Shareholders stating specifically the basis for the claim for Damages, the amount thereof and shall tender defense thereof to Shareholders as provided in Section 11.02; and (ii) The parties hereto agree that Shareholders' indemnity hereunder shall not go into effect until at least Five Thousand Dollars ($5,000) in aggregate damages have occurred during the period of indemnity hereunder. (iii) AFI hereby agrees that, except as set forth in Section 1.03(c) herein and in Section 7.05 herein, Shareholders' indemnity pursuant to this Agreement shall be nonrecourse to Shareholders personally and corporately. Except for Shareholders' obligation under Section 1.03(c) and except for violations of Section 7.05 hereunder, AFI agrees that its only remedy in connection with Shareholders' indemnity hereunder shall be to accept a forfeiture of Shareholders' shares pursuant to the terms and conditions of this Article the Escrow Agreement attached hereto. 41 (iv) The parties agree that the indemnity under Section 11.01, with respect to all items which can cause "damages" to occur thereunder, shall be limited to those items that are discovered and Section 9.6, Shareholder agrees for which AFI provides notice to indemnify, defend and hold Parent, Merger Sub and Merger Sub II and their respective directors, officers, agents, attorneys and affiliates (collectively, "Parent Indemnitees") harmless from and against all losses, claims, obligations, demands, assessments, penalties, liabilities, costs, Shareholders of its claim for damages, attorneys' fees and expenses which notification occurs within two (collectively, "Damages"), asserted against or incurred by any Parent Indemnitee by reason of or resulting from: (i2) a breach of any representation, warranty or covenant years of the Company or Shareholder contained herein (excluding date of Closing hereunder. However, notwithstanding the representations set forth in the second sentence of Section 3.9 above) or in any agreement executed in connection with the transactions contemplated hereby; (ii) any amounts not collected in cash or as an offsetting credit to the Company and/or Surviving Corporation foregoing, with respect to the Macmillan Holdback Receivables; (iii) any Damages in excess indemnity that arises out of $25,000 pertaining to the matter described in Item 2 of Schedule 3.1 of the Company Disclosure Statement; and (iv) the matter described in Item 2 of Schedule 3.16 of the Company Disclosure Statement; provided, however, that no claim shall be made for Damages under this Section 8.1 until, and such claims may be made only to the extent thatsubparagraph 11.01(e), the dollar amount of all such claims indemnity shall continue for Damages shall exceed in the aggregate $100,000 (the "Threshold"); and provided further, however, that Shareholder's aggregate liability for Damages may not exceed fifty percent (50%) of the Merger Consideration. In addition, Shareholder (i) any fees, commissions or expenses of any financial advisor, investment banker, business broker or similar person or entity engaged by the Company or Shareholder; and (ii) any Company Liability not set forth on Schedule 3.9(b) of the Company Disclosure Statement (collectively, "Undisclosed Company Liabilities"), but only to the extent that such Undisclosed Company Liabilities, individually or in the aggregate, exceed the amount of any cash in the Company as of the Closing Date and not transferred to Shareholder and/or accounts receivable as of the Closing Date which are not included in Schedule 7.7 of the Company Disclosure Statement (excluding the Macmillan Holdback Receivables) and are subsequently collected; it being agreed that such indemnification is not subject to the Threshold and will be payable by Shareholder first, and not first deducted from the earn-out consideration. If Shareholder becomes liable for Damages, he shall be entitled, in his sole discretion, to satisfy any judgment or settlement of Damages, in whole or in part, by transferring Parent Common Stock to any Parent Indemnitee. For purposes of this Section 8.1, if Shareholder elects to so transfer Parent Common Stock, a share of Parent Common Stock shall be considered to have a value period equal to the average closing price applicable statute of the Parent Common Stock on the Nasdaq NMS limitations period for the trading days during the 60 calendar days immediately preceding the Closing Dateparticular tax involved.

Indemnification by Shareholder. Subject to the terms and conditions of this Article and Section 9.6Article, Shareholder agrees to indemnify, defend and hold Parent, Merger Sub Purchaser and Merger Sub II and their respective its directors, officers, agents, attorneys and affiliates (collectively, "Parent Indemnitees") harmless from and against all losses, claims, causes of action, obligations, demands, assessments, penalties, liabilities, costs, damages, attorneys' fees and expenses (collectively, "Damages"), asserted against or incurred by any Parent Indemnitee such indemnitees by reason of or resulting from: (ia) a breach of any representation, warranty or covenant of the Company Corporation or Shareholder contained herein (excluding the representations set forth herein, in the second sentence of Section 3.9 above) any exhibit, schedule, certificate or financial statement delivered hereunder, or in any agreement executed in connection with the transactions contemplated hereby; (iib) any amounts not collected in cash studies, audits, investigation, testing, clean-up or as an offsetting credit remediation work on, or permits required for, the properties owned or leased by the Corporation which is necessary or advisable under or pursuant to the Company and/or Surviving Corporation with respect to the Macmillan Holdback Receivables; Environmental Laws (iii) including, without limitation, any Damages in excess of $25,000 pertaining to the matter described in Item 2 of Schedule 3.1 of the Company Disclosure Statement; and (iv) the matter described in Item 2 of Schedule 3.16 foregoing which may arise out of the Company Disclosure Statement; provided, however, that no claim shall be made for Damages under this Section 8.1 until, and such claims may be made only to the extent that, the dollar amount of all such claims for Damages shall exceed matters set forth in the aggregate $100,000 reports provided or obtained pursuant to Section 5.04) (the "Threshold"); and provided further, however, that Shareholder's aggregate liability for Damages may not exceed fifty percent (50%) of the Merger Consideration. In addition, Shareholder (i) any fees, commissions or expenses of any financial advisor, investment banker, business broker or similar person or entity engaged by the Company or Shareholder; and (ii) any Company Liability not set forth on Schedule 3.9(b) of the Company Disclosure Statement (collectively, "Undisclosed Company LiabilitiesEnvironmental Matters"), but only excluding the costs and expenses to be borne by Purchaser for certain Phase I environmental studies as provided in Section 12.07; (c) any liabilities of the extent Corporation, contingent or otherwise (known or unknown and asserted or unasserted), except for the Assumed Liabilities; (d) any tax filing or return or payment made, or position taken, by the Corporation that such Undisclosed Company Liabilitiesany governmental authority challenges and that results in an assertion of Damages against Purchaser; (e) all income, individually excise, corporate, franchise, property, sales, use, payroll, withholding and other taxes of the Corporation and/or Shareholder related to taxable periods or in the aggregate, exceed the amount of any cash in the Company as of portions thereof ending on or before the Closing Date and not ("Taxes"), except for the Taxes deducted in computing the net working capital transferred to Shareholder and/or accounts receivable Purchaser; (f) the purchase price adjustment, if any, as determined pursuant to Section 2.03; (g) any failure to comply with any applicable bulk transfer laws; (h) the Corporation's past and present arrangements with its dealers, including any violations of applicable franchise laws or any rights of any such dealers under any applicable franchise law; and (i) Purchaser's having to register a new federal service mark xx the Closing Date which are not included in Schedule 7.7 event the application for the "CHOICENTER" service mark xx rejected or materially modified or limited or, during the lapse of the Company Disclosure Statement such registration, some other person or entity utilizes such service mark xx a materially similar service mark (excluding the Macmillan Holdback Receivables) and are subsequently collected; it being agreed that xxth such indemnification is not subject being limited to search fees, filing fees and the Threshold like incurred by Purchaser in reviewing and will be payable by Shareholder first, obtaining a new federal service mark xxx attorneys fees and not first deducted from the earn-out consideration. If Shareholder becomes liable for Damages, he shall be entitled, in his sole discretion, to satisfy any judgment or settlement of Damages, in whole or in part, by transferring Parent Common Stock to any Parent Indemnitee. For purposes of this Section 8.1, if Shareholder elects to so transfer Parent Common Stock, a share of Parent Common Stock shall be considered to have a value equal to the average closing price of the Parent Common Stock on the Nasdaq NMS for the trading days during the 60 calendar days immediately preceding the Closing Dateexpenses related thereto).