Common use of INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS Clause in Contracts

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. Subject to the terms and conditions of this Article XIV, the Company and the Stockholders agree to indemnify, defend and hold APP and the Surviving Corporation and their respective directors, officers, stockholders, employees, agents, attorneys, consultants and Affiliates harmless from and against all losses, claims, obligations, demands, assessments, penalties, liabilities, costs, damages, reasonable attorneys' fees and expenses (including, without limitation, all costs of experts and all costs incidental to or in connection with any appellate process) (collectively, "Damages") asserted against or incurred by such individuals and/or entities arising out of or resulting from: (a) a breach by the Company or any Stockholder of any representation or warranty (without giving effect to any Material Adverse Effect qualifier contained as part of any such representation or warranty) or covenant of the Company or any Stockholder contained in this Agreement or in any Disclosure Schedule or certificate delivered thereunder; (b) any violation (or alleged violation) by the Company and/or any of its past or present directors, officers, partners, Stockholders, employees (including, without limitation, any Physician Employee), agents, attorneys, consultants and Affiliates of any state or federal law governing health care fraud and abuse or prohibition on referral of patients to Persons in which a licensed professional has a financial or other form of interest (including, but not limited to, fraud and abuse in the Medicare and Medicaid Programs) occurring on or before the Closing Date, or any overpayment or obligation (or alleged overpayment or obligation) arising out of or resulting from claims submitted to any Payor on or before the Closing Date; and (c) any liability under the Securities Act, the Exchange Act or any other federal or state "blue sky" or securities law or regulation, at common law or otherwise, arising out of or based upon any untrue statement of material fact in any Registration Statement or any prospectus forming or part thereof, or any amendment thereof or supplement thereto relating to the Company (including any Company Subsidiary) or failure to state information necessary to make the statements required to be stated therein not misleading arising solely from information provided in writing to APP or its counsel by the Company or any Stockholder or their agents specifically for inclusion in any such Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto. Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall relieve the Company of any liability or limit any liability that it may have in the case of fraud in connection with the transactions contemplated by this Agreement.

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. Subject to the terms and conditions of this Article XIV, the The Company and the Stockholders agree to indemnifyStockholders, defend jointly and hold APP and the Surviving Corporation severally on behalf of themselves and their respective successors, executors, administrators, estates, heirs and permitted assigns, agree to indemnify and hold harmless the Parent, BOL, and their respective officers, directors, officersemployees and agents (individually, stockholdersa "Parent Indemnified Party" and collectively, employees, agents, attorneys, consultants and Affiliates harmless the "Parent Indemnified Parties") from and against and in respect of all losses, claimsliabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, orders, judgments, fines, penalties, liabilities, costs, damages, reasonable attorneys' fees costs and expenses (includingincluding the reasonable fees, without limitationdisbursements 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 costs amounts paid in investigation, defense or settlement of experts and all costs incidental to the foregoing) sustained, suffered or incurred by or made against any Parent Indemnified Party (a "Loss" or "Losses"), arising out of, based upon or in connection with any appellate process) (collectively, "Damages") asserted against or incurred by such individuals and/or entities arising out of or resulting fromwith: (a) a any breach of any representation or warranty made by the Company or the Stockholders in this Agreement or in any schedule, exhibit, certificate, agreement or other instrument delivered under or in connection with this Agreement as supplemented or amended pursuant to SECTION 4.7 hereof, or by reason of any claim, action or proceeding asserted or instituted arising out of any matter or thing covered by any such representations or warranties, as so supplemented; or (b) any breach of any covenant or agreement made by the Company or any Stockholder of any representation or warranty (without giving effect to any Material Adverse Effect qualifier contained as part of any such representation or warranty) or covenant of the Company or any Stockholder contained in this Agreement or in any Disclosure Schedule schedule, exhibit, certificate, agreement or certificate other instrument delivered thereunder; (b) any violation (under or alleged violation) in connection with this Agreement, or by the Company and/or any of its past or present directors, officers, partners, Stockholders, employees (including, without limitation, any Physician Employee), agents, attorneys, consultants and Affiliates reason of any state claim, action or federal law governing health care fraud and abuse proceeding asserted or prohibition on referral of patients to Persons in which a licensed professional has a financial or other form of interest (including, but not limited to, fraud and abuse in the Medicare and Medicaid Programs) occurring on or before the Closing Date, or any overpayment or obligation (or alleged overpayment or obligation) instituted arising out of any matter or resulting from claims submitted to thing covered by any Payor on such covenant or before the Closing Date; andagreement. (c) any liability under and all loss, liability, deficiency or damage suffered or incurred by the Securities ActParent or BOL attributable to the use of the acquired assets prior to the Closing Date except for the Assumed Liabilities, or attributable to the Excluded Assets, and any and all actions, suits, proceedings, claims, demands, assessments, encumbrances, investigations, judgments, costs and expenses (including, but no limited to, legal and accounting fees and expenses) incident to any of the foregoing. 1. The Company and the Stockholders shall not be obligated to indemnify the Parent Indemnified Parties in respect of Parent Indemnifiable Claims and no Parent Indemnifiable Claims shall be paid from the Escrow Deposit except to the extent the cumulative amount of Losses to Parent Indemnifiable Parties exceeds $100,000, whereupon all Losses in excess of $50,000 shall be recoverable in accordance with the terms hereof. Notwithstanding the foregoing, the Exchange Act or $100,000/$50,000 threshold/deductible shall not apply to (i) Purchase Price adjustments, (ii) claims with respect to any other federal or state "blue sky" or securities law or regulation, at common law or otherwise, arising out of or based upon any untrue statement of material fact in any Registration Statement or any prospectus forming or part thereoftaxes not specifically assumed by BOL hereunder, or any amendment thereof (iii) as a result of fraud or supplement thereto relating intentional misrepresentation by the Stockholders or the Company. The aggregate indemnification obligations of the Company and the Stockholders hereunder shall be limited to the Company (including Purchase Price of $15,000,000, as adjusted pursuant to Section 2 of this Agreement. After payment of such amount, such indemnification obligations shall terminate. Notwithstanding the foregoing, solely with respect to a breach by a Stockholder of the non-competition provisions contained in Section 10 or the nondisclosure provisions contained in Section 11.1 hereof, the liabilities of the Stockholders for any Company Subsidiary) Losses or failure to state information necessary to make claims arising from such a breach shall be separate, rather than joint and several, such that a Stockholder shall not be liable for any claims or losses of the statements required to be stated therein not misleading Parent or BOL arising solely from information provided in writing the breach of said non-competition or non-disclosure provisions committed by another Stockholder. In the event of a Parent Indemnifiable Claim, the Parent and BOL agree that the Parent Indemnified Parties shall first apply to APP or its counsel by the Escrow Agent under the terms of the Escrow Agreement for satisfaction of any such claims, and that the Company and the Stockholders will not be required to pay such claim directly unless the amount of unpaid Parent Indemnifiable Claim(s) exceeds the value of any then remaining Escrow Deposit (except to the extent such claim is based on a breach of the non-competition or any Stockholder or their agents specifically for inclusion non-disclosure provisions set forth in Sections 10 and 11.1 hereof). The foregoing provision regarding payment from escrow shall not in any such Registration Statement way affect, reduce, limit, decrease or release the Stockholders' liability for any prospectus forming a part thereof, or any amendment thereof or supplement thereto. Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall relieve the Company of any liability or limit any liability that it may have in the case of fraud in connection with the transactions contemplated by this AgreementParent Indemnifiable Claim.

INDEMNIFICATION BY THE COMPANY AND THE STOCKHOLDERS. Subject to The Company shall indemnify the terms Purchaser and conditions of this Article XIVits respective Subsidiaries, the Company and the Stockholders agree to indemnify, defend and hold APP and the Surviving Corporation and their respective officers, directors, officersshareholders, stockholdersagents, employees, agentssubsidiaries, attorneysparents, consultants assigns, successors and Affiliates predecessors (collectively, the "Purchaser Parties") and hold each of them harmless from and against all losses, claims, obligations, demands, assessments, penalties, liabilities, costs, damages, reasonable attorneys' fees and expenses (including, without limitation, all costs of experts and all costs incidental to or in connection with any appellate process) (collectively, "Damages") asserted against or incurred by such individuals and/or entities arising out pay on behalf of or resulting fromreimburse such Purchaser Parties in respect of any Loss which any such Purchaser Party may suffer, sustain, or become subject to, as a result of or relating to: (ai) a the breach by the Company or any Stockholder of any representation or warranty (without giving effect to any Material Adverse Effect qualifier contained as part of any such representation or warranty) or covenant of made by the Company or any Stockholder contained in this Agreement or any other Transaction Document or in any Disclosure Schedule or certificate delivered thereunder; (b) any violation (or alleged violation) by the Company and/or any of its past or present directors, officers, partners, Stockholders, employees (including, without limitation, any Physician Employee), agents, attorneys, consultants and Affiliates of any state or federal law governing health care fraud and abuse or prohibition on referral of patients to Persons in which a licensed professional has a financial or other form of interest (including, but not limited to, fraud and abuse in the Medicare and Medicaid Programs) occurring on or before the Closing Date, or any overpayment or obligation (or alleged overpayment or obligation) arising out of or resulting from claims submitted to any Payor on or before the Closing Date; and (c) any liability under the Securities Act, the Exchange Act or any other federal or state "blue sky" or securities law or regulation, at common law or otherwise, arising out of or based upon any untrue statement of material fact in any Registration Statement or any prospectus forming or part thereof, or any amendment thereof or supplement thereto relating to the Company (including any Company Subsidiary) or failure to state information necessary to make the statements required to be stated therein not misleading arising solely from information provided in writing to APP or its counsel by the Company or any Stockholder with respect thereto in connection with the Closing, as modified by the Company Disclosure Schedules and Schedule Updates; (ii) the breach of any covenant or their agents specifically for inclusion in any such Registration Statement agreement made by the Company or any prospectus forming a part thereof, or any amendment thereof or supplement thereto. Notwithstanding anything herein to the contrary, nothing Stockholder contained in this Agreement shall relieve or any other Transaction Document, other than any such breach occurring prior to Closing with respect to which the Company or a Stockholder provided the Purchaser written notice prior to the Closing Date in accordance with Section 4.1(g) hereof; (iii) any claim by any Person that the use of the "Chippery" trademark and tradename infringes on such Person's Proprietary Rights; (iv) any Excluded Liability or Excluded Asset; (v) the fire at the Company's Chicago-area cold storage facility described in the Financial Statements Schedule, including without limitation the sale, use or consumption of any liability inventory stored at such facility at the time of such fire; or (vi) any claim by The Hershey Company, any of its Affiliates or limit any liability license thereof that it may the use of the word "Whopper" by the Company infringes on such Person's Proprietary Rights. The Stockholders hereby acknowledge that they and their Affiliates will have in no claims or rights to contribution or indemnity from the case Company or its officers and directors with respect to any amounts paid by any of fraud in connection with the transactions contemplated by them pursuant to this AgreementSection 8.2(a).