Common use of Indemnification by the Equityholders Clause in Contracts

Indemnification by the Equityholders. Subject to the limitations set forth in this Article IX, the Equityholders agree to jointly and severally indemnify and hold harmless Xxxx.xxx, its Affiliates, its Subsidiaries and its and their officers, directors, employees, agents and representatives (the “Xxxx.xxx Indemnified Parties”) against all Damages incurred, sustained or suffered by Xxxx.xxx Indemnified Parties, or any of them, as a result of, arising from, caused by or related to (i) any breach or inaccuracy of a representation or warranty of any Equityholder or the Company contained in this Agreement or in any agreement or certificate delivered by or on behalf of any Equityholder or the Company pursuant to this Agreement as of the date of this Agreement and as of the Closing Date (as if such representation or warranty was made anew at and as of the Closing Date (other than representations or warranties that are specifically made as of a specific date, which shall be true and correct as of such date)) (except to the extent Xxxx.xxx has obtained a recovery for such Damages under Section 1.4), (ii) any failure by any Equityholder to perform or comply (following the Closing) with any covenant applicable to it contained in this Agreement or in any agreement or certificate delivered by or on behalf of any Equityholder in connection with this Agreement and (iii) any third-party claims related to professional services liability of the Company prior to the Closing, including without limitation claims by customers of the Company that the Company’s products or services failed to accurately calculate their tax liability. Notwithstanding anything to the contrary in this Section 9.2(a) or any similar rights to indemnification or contribution the Equityholders have by statute, in the Company’s Formation Documents or by agreement, the Equityholders (including any officer or director) shall not have any right of contribution, indemnification or right of advancement from the Company (following the Closing) or Xxxx.xxx with respect to any Damages claimed by a Xxxx.xxx Indemnified Party that gives rise to an indemnification obligation hereunder.

Indemnification by the Equityholders. Subject to the limitations set forth in this Article IXThe Equityholders, the Equityholders agree to jointly and severally severally, shall defend, indemnify and hold harmless Xxxx.xxxeach Company, its AffiliatesPurchaser, its Subsidiaries and its IBP and their respective managers, officers, directors, employees, agents agents, equityholders, partners, Affiliates and representatives successors and assigns (collectively, the “Xxxx.xxx Purchaser Indemnified Parties”) from and against and pay or reimburse the Indemnified Parties for any and all Damages incurredIndemnified Losses resulting from, sustained or suffered by Xxxx.xxx Indemnified Partiesrelating to, or any of them, as a result arising directly or indirectly out of, arising from, caused by or related to : (ia) any inaccuracy in or breach or inaccuracy of a any representation or warranty made by any of any Equityholder or the Company contained Equityholders in this Agreement or in any agreement or certificate Transaction Document delivered by or on behalf any of any Equityholder or the Company pursuant to this Agreement Equityholders as of the date of this Agreement and as of the Closing Date (such representation or warranty was made or as if such representation or warranty was made anew at on and as of the Closing Date (other than except for representations or and warranties that are specifically made as of expressly relate to a specific specified date, the inaccuracy in or breach of which shall will be true and correct as of determined with reference to such specified date); (b) any breach of any covenant or obligation of any of the Equityholders pursuant to this Agreement or any Transaction Document delivered by any of the Equityholders; (except c) for a period of 10 years following the Closing Date, any product manufactured, installed, shipped or sold, and any services provided (or the alleged failure to provide such services), by any Company prior to or on the Closing Date; (d) for a period of seven years following the Closing Date: (i) any Employee Claim or any failure by any Company to comply with all Applicable Law regarding employees or Service Providers, including, without limitation, ERISA and laws related to the extent Xxxx.xxx has obtained a recovery for such Damages under Section 1.4), immigration status or classification as exempt or non-exempt of any employee of or Service Provider utilized by any Company prior to or on the Closing Date; (ii) any failure by any Equityholder to perform debts, obligations, trade payables or comply (following the Closing) with any covenant applicable to it contained in this Agreement or in any agreement or certificate delivered by or on behalf other liabilities of any Equityholder in connection with this Agreement and Company that are not fully reflected or reserved for on the Closing Balance Sheet; (iii) any third-party claims related claim, litigation, investigation or proceeding relating to professional services liability of the any Company or Equityholder with respect to events or matters occurring on or prior to the ClosingClosing Date and to the extent not resulting from an act or omission of any Purchaser Indemnified Parties, including including, without limitation claims by customers limitation, any of the Company that litigation matters listed on Schedule 5.13. (e) the Company’s products or services failed to accurately calculate their tax liability. Notwithstanding anything Professional Fees and Selling Expenses; (f) to the contrary extent not fully reflected or reserved for on the Closing Balance Sheet, any liability or obligation for Taxes of (i) any Company, or Taxes relating to the business of any Company, or (ii) any Equityholder, in this Section 9.2(a) each case for all Pre-Closing Tax Periods (including, without limitation, portions of a Straddle Period allocable to a Pre-Closing Tax Period), including, but not limited to, Taxes subsequently assessed against any Company or any similar rights to indemnification or contribution the Equityholders have by statute, in the Company’s Formation Documents or by agreement, of the Equityholders (including including, without limitation, based upon a Taxing Authority’s re-characterization of a reported transaction); (g) to the extent not fully reflected or reserved for on the Closing Balance Sheet, any officer liability or director) shall not have obligation for unpaid Taxes of any right member of contributionan affiliated, indemnification consolidated, combined or right unitary group of advancement from the which any Company (following or any predecessor of any Company) is or was a member on or prior to the ClosingClosing Date by reason of a liability under Treasury Regulation §1.1502-6 or any comparable provisions of foreign, state or local law; or (h) or Xxxx.xxx with respect the Equityholders’ failure to pay any Damages claimed by a Xxxx.xxx Indemnified Party that gives rise to an indemnification obligation hereunderTransfer Taxes.

Indemnification by the Equityholders. Subject to From and after the limitations set forth in this Article IXEffective Time, the Equityholders agree to shall, jointly and severally severally, indemnify and fully defend, save and hold harmless Xxxx.xxxParent, its Affiliatesany subsidiary of Parent, its Subsidiaries any Affiliate of Parent and its and any of their respective directors, officers, directors, employees, representatives and agents and representatives (the “Xxxx.xxx Indemnified PartiesIndemnitees”) against all Damages incurred), sustained harmless if any Indemnitee shall at any time or suffered by Xxxx.xxx Indemnified Partiesfrom time to time suffer any Loss arising out of or resulting from, or shall pay or become obliged to pay any of them, as a result sum on account of, arising any suit, action, investigation, claim or proceeding (each, a “Proceeding”), which Proceeding arises out of or results from, caused by or related to : (ia) any untruth, inaccuracy or breach of any representation or inaccuracy warranty of the Company or the Equityholders contained in this Agreement or any certificate required to be delivered pursuant to Section 10.2; provided, however, that for purposes of determining whether there has been a breach of a representation or warranty and for purposes of calculating Losses hereunder in the event of such a breach any materiality, Company Material Adverse Effect and similar qualifications shall be disregarded; (b) any failure of the Company or any Equityholder to duly perform or observe any term, provision, covenant or agreement contained in this Agreement, other than as set forth in Section 11.2(a); (c) any and all Honduran withholding (and similar) Taxes for all Tax periods (or portions thereof) ending on or prior to the Closing Date; or (d) any claim by an Equityholder against the Equityholders’ Representative, any other Equityholder or the Company contained or Surviving Corporation, with respect to the delivery, effectiveness or enforcement (in whole or in part) of this Agreement or in any agreement or certificate delivered by or on behalf the Equityholders Distribution of any Equityholder or the Company pursuant to this Agreement as of the date of this Agreement and as of the Closing Date (as if such representation or warranty was made anew at and as of the Closing Date (other than representations or warranties that are specifically made as of a specific date, which shall be true and correct as of such date)) (except to the extent Xxxx.xxx has obtained a recovery for such Damages under Section 1.4), (ii) any failure by any Equityholder to perform or comply (following the Closing) with any covenant applicable to it contained in this Agreement or in any agreement or certificate delivered by or on behalf of any Equityholder in connection with this Agreement and (iii) any third-party claims related to professional services liability of the Company prior to the Closing, including without limitation claims by customers of the Company Proceeds Agreement. The Parties hereto acknowledge that the Company’s products or services failed to accurately calculate their tax liability. Notwithstanding anything to the contrary in this Section 9.2(a) or any similar rights to indemnification or contribution the Equityholders have by statute, in the Company’s Formation Documents or by agreement, the Equityholders (including any officer or director) shall Indemnitees may incur Loss that would be indemnifiable hereunder that does not have any right of contribution, indemnification or right of advancement from the Company (following the Closing) or Xxxx.xxx with respect to any Damages claimed by a Xxxx.xxx Indemnified Party that gives rise to an indemnification obligation hereunderadversely affect 2011 Adjusted EBITDA.

Indemnification by the Equityholders. (a) Subject to the other terms and conditions of this Agreement, the Equityholders shall, jointly and severally, indemnify, defend and hold harmless Parent, MergerCo and, effective at the Closing, without duplication, the Surviving Company and their respective officers, directors and members of their boards or representatives (each a “Parent/MergerCo Indemnified Party”) to the extent of any Losses asserted against, imposed upon or incurred or sustained by any of the Parent/MergerCo Indemnified Parties, as the same are incurred, arising out of, relating to, resulting from, or in whole or in part sustained in connection with: (i) the breach of any representation or warranty of the Company contained herein or contained in any Schedule to this Agreement or any certificate delivered pursuant to this Agreement, other than in respect of the Specified Representations; provided, however, that any Company Material Adverse Effect, materiality or any similar qualifications contained in such representations and warranties shall be disregarded for the purpose of assessing any indemnification obligation under this Section 9.2(a)(i); (ii) the breach of any representation or warranty of the Company in respect of the Specified Representations; provided, however, that any Company Material Adverse Effect, materiality or any similar qualifications contained in such representations and warranties shall be disregarded for the purpose of assessing any indemnification obligation under this Section 9.2(a)(ii); (iii) any breach of any covenant or agreement of the Company contained herein; (iv) Taxes of the Company in respect of any period ending, or any transaction or business occurring, on or before the close of business on the Closing Date which have not been properly accrued for on the Final Closing Balance Sheet; (v) any adjustment of any labor rates, in connection with an audit by the Defense Contract Audit Agency, for work or services performed prior to the Closing Date, regardless of whether, when and in what form, such labor rates were submitted to the Defense Contract Audit Agency prior to or after the Closing Date; or (vi) any of the Company’s fees, costs and expenses in connection with the negotiation and the consummation of the transactions contemplated by this Agreement and not included in the calculation of the Estimated Net Working Capital. (b) The Parent/MergerCo Indemnified Parties’ indemnification rights pursuant to Section 9.2(a) shall be limited as follows: (i) The Parent/MergerCo Indemnified Parties shall not be entitled to any indemnification pursuant to Sections 9.2(a)(i), 9.2(a)(ii) or 9.2(a)(v) until the aggregate dollar amount of all such Losses that would otherwise be indemnifiable equals or exceeds $100,000 (the “Threshold”), at which time the Parent/MergerCo Indemnified Parties shall be entitled to indemnification of all Losses that would otherwise be indemnifiable pursuant to Section 9.2(a)(i), Section 9.2(a)(ii) or 9.2(a)(v) (including all Losses incurred prior to exceeding the Threshold), subject to the other limitations and qualifications set forth in this Article IX. (ii) The Parent/MergerCo Indemnified Parties shall not be able to seek indemnification pursuant to Sections 9.2(a)(i), for any amount of indemnifiable Losses pursuant to Section 9.2(a)(i) in excess of the Equityholders agree Escrow Amount and the right of the Parent/MergerCo Indemnified Parties to jointly recover for any indemnifiable Losses shall be limited solely and severally indemnify and hold harmless Xxxx.xxxexclusively to the Escrow Amount; provided, its Affiliateshowever, its Subsidiaries and its and their officers, directors, employees, agents and representatives (that the “Xxxx.xxx Indemnified Parties”foregoing provisions of this Section 9.2(b)(ii) against all Damages incurred, shall not apply to Losses sustained or suffered by Xxxx.xxx Indemnified Parties, incurred due to fraud or any of them, as a result of, arising from, caused by willful misconduct or related to (i) any breach or inaccuracy of a representation or warranty of any Equityholder or the Company contained in this Agreement or in any agreement or certificate delivered willful concealment by or on behalf of any Equityholder or the Company Company. (iii) The Parent/MergerCo Indemnified Parties shall not be able to seek indemnification pursuant to this Agreement as Sections 9.2(a)(ii), 9.2(a)(iii), 9.2(a)(iv) or 9.2(a)(v) for any amount of indemnifiable Losses in excess of the date aggregate amount of the Merger Consideration; provided, however, that the foregoing provisions of this Agreement and as of the Closing Date (as if such representation Section 9.2(b)(iii) shall not apply to Losses sustained or warranty was made anew at and as of the Closing Date (other than representations incurred due to fraud or warranties that are specifically made as of a specific date, which shall be true and correct as of such date)) (except to the extent Xxxx.xxx has obtained a recovery for such Damages under Section 1.4), (ii) any failure by any Equityholder to perform willful misconduct or comply (following the Closing) with any covenant applicable to it contained in this Agreement or in any agreement or certificate delivered willful concealment by or on behalf of the Company. (iv) No indemnification shall be payable to a Parent/MergerCo Indemnified Party with respect to claims asserted by such Parent/MergerCo Indemnified Party pursuant to Section 9.2(a)(i) after the Indemnification Cut-Off Date. (c) Promptly after the receipt by any Equityholder in connection with Parent/MergerCo Indemnified Party of notice of any claim or the commencement of any action or proceeding by a third party, as to which such Parent/MergerCo Indemnified Party may request indemnification hereunder, the Parent/MergerCo Indemnified Party will give the Members Representative written notice of such claim or the commencement of such action or proceeding; provided that failure of the Parent/MergerCo Indemnified Party to give notice of any claim or claims shall not release, waive or otherwise affect the obligations under this Agreement with respect thereto except and only to the extent that the Equityholders can demonstrate actual loss or material prejudice as a result of such failure. The Parent/MergerCo Indemnified Party shall have the right to direct, through counsel of its own choosing (iii) with the consent of the Members Representative, which consent shall not be unreasonably withheld), the defense or settlement of any third-party claims related to professional services liability claim or proceeding. The fees and expenses of the Company Parent/MergerCo Indemnified Party in connection with the defense or settlement of any third-party claim or proceeding shall be Losses for which such Parent/MergerCo Indemnified Party shall be able to seek indemnification pursuant to this Section 9.2. If the Parent/MergerCo Indemnified Party elects to assume the defense of any such third-party claim or proceeding, the Parent/MergerCo Indemnified Party shall consult with the Members Representative for the purpose of allowing the Members Representative to participate in such defense. The fees and expenses of the Parent/MergerCo Indemnified Party in connection with the defense or settlement of any third-party claim or proceeding shall be Losses for which such Parent/MergerCo Indemnified Party shall be able to seek indemnification pursuant to this Section 9.2. The Members Representative shall cooperate with the Parent/MergerCo Indemnified Party in the defense or settlement of any third-party claim. If the Parent/MergerCo Indemnified Party elects to direct the defense of any such third-party claim or proceeding, the Members Representative shall not pay, or permit to be paid, any part of such third-party claim unless the Parent/MergerCo Indemnified Party consents in writing to such payment. If the Parent/MergerCo Indemnified Party fails to defend or if, after commencing or undertaking any such defense, the Parent/MergerCo Indemnified Party fails to prosecute or withdraws from such defense, the Members Representative shall have the right to undertake the defense or settlement thereof, at the Equityholders’ expense. If the Members Representative assumes the defense of any such third-party claim or proceeding pursuant to this Section 9.2(d) and proposes to settle such third-party claim or proceeding prior to a final judgment thereon or to forego any appeal with respect thereto, then the ClosingMembers Representative shall give the Parent/MergerCo Indemnified Party prompt written notice thereof, including without limitation claims by customers of and the Company that Parent/MergerCo Indemnified Party shall have the Company’s products or services failed right to accurately calculate their tax liability. Notwithstanding anything to the contrary in this Section 9.2(a) or any similar rights to indemnification or contribution the Equityholders have by statute, participate in the Company’s Formation Documents settlement or by agreement, assume or reassume the Equityholders (including any officer defense of such third-party claim or director) proceeding. The Members Representative shall not have settle or pay, or permit to be settled or paid, any right part of contribution, indemnification or right of advancement from such third-party claim unless the Company (following the Closing) or Xxxx.xxx with respect to any Damages claimed by a Xxxx.xxx Parent/MergerCo Indemnified Party that gives rise consents in writing to an indemnification obligation hereundersuch settlement or payment.