Common use of Indemnification by the Shareholder Clause in Contracts

Indemnification by the Shareholder. (a) Subject to the limitations set forth in Section 8.2(b) below, from and after the Closing Date, the Shareholder agrees to indemnify fully, hold harmless, protect and defend the Purchaser and their Affiliates (including, after the Closing, the Company), and their respective directors, officers, agents, partners and employees, successors and assigns (“Indemnified Persons”) from and against any and all losses, costs, claims (including, without limitation, third party claims), damages, obligations, judgments, settlements, awards, demands, offsets, actions, suits, proceedings, payments, assessments, Taxes, interests, penalties, expenses, including, without limitation, reasonable out-of-pocket costs and attorneys’ and other professional fees, if any (collectively, “Losses” which term shall include interest accruing on the amount of any Loss from the date Purchaser submits a claim for indemnification hereunder at the prime rate of Citibank, N.A.) actually incurred by any of them arising out of, or relating to: (i) any inaccuracy in, or breach of, any of the representations or warranties of the Shareholder or the Company contained in this Agreement; (ii) any failure to perform, or other breach of, any of the covenants or agreements of the Shareholder and the Company contained in this Agreement; (iii) any Liabilities of the Company arising out of, or relating to, the ownership or operation of any facility or assets, the conduct of any business, or any acts or omissions, by the Company prior to the Closing; (iv) any Liabilities of the Company directly related to the Reorganization; and (v) any Tax imposed on the Company or a member of the Company Group, if any, for a Pre Closing Period (including the portion of any Tax imposed for a Straddle Period that is allocable to the portion of such period ending at the close of the Closing Date (the “Pre Closing Portion”)). In determining the Taxes for a Straddle Period allocable to the Pre Closing Portion, except as provided in the next sentence, the allocation shall be made on the basis of an interim closing of the books as of the end of the Closing Date. In the case of (i) franchise Taxes based on capitalization, debt or shares of stock authorized, issued or outstanding, (ii) ad valorem Taxes and (iii) any Tax other than Taxes based on or related to income, the portion of such Taxes for a Straddle Period allocable to the Pre Closing Portion shall be the amount of such Taxes for the Straddle Period (computed in accordance with past practice), multiplied by a fraction, the numerator of which is the number of such days in such taxable period ending on and including the Closing Date and the denominator of which is the aggregate number of days in such taxable period; provided, however, that if any property, asset or other right of Target Company is sold or otherwise transferred prior to the Closing, then ad valorem Taxes pertaining to such property, asset or other right shall be attributed entirely to the Pre Closing Portion. (b) Notwithstanding anything to the contrary contained herein, none of the Indemnified Persons shall be entitled to be indemnified hereunder (i) in respect of any Liabilities of SMF that are also Liabilities of the Company solely by reason of the Company’s status as a shareholder of SMF, (ii) in respect of any Liability for any Tax resulting (x) from the Merger or the purchase of the Shares (other than a Tax imposed on the Company as a result of a failure to comply with Section 897 or 1445 of the Code) or (y) from any transaction occurring after the Effective Time, (iii) in respect of any obligations of the Company under the Expatriate Compensation Agreement, dated August 4, 2003 between the Company, SMF and Etienne Snollaerts or (iv) any amounts reimbursed by the Shareholder pursuant to Section 8.2(f) hereof. (c) The right of the Indemnified Persons to be indemnified hereunder shall not be limited or affected by any investigation conducted or notice or knowledge obtained by or on behalf of any such Persons. (d) Following the Closing, the indemnity provided in this Section 8.2 shall be the sole and exclusive remedy of the Indemnified Persons with respect to any and all claims for Losses incurred by any of them arising out of, or relating to this Agreement and the transactions contemplated hereby, except for Losses arising from fraud or willful breach of this Agreement. (e) At the Closing, the Shareholder shall cause to be issued a letter of credit (the “Letter of Credit”) in favor of the Purchaser in customary form reasonably satisfactory to the Purchaser of a U.S. domestic bank or a branch of an international commercial bank reasonably satisfactory to the Purchaser, in a stated amount equal to five million dollars ($5,000,000) and with a term of 5 years from the Closing Date as security for the obligations of the Shareholder under this Section 8.2. The terms of the Letter of Credit shall permit the Purchaser to draw on such Letter of Credit only after obtaining a valid judgment that Purchaser is entitled to a payment from the Shareholder pursuant to this Section 8.2, but said terms shall not require that such judgment shall have become final and non-appealable. (f) From time to time after the Closing Date, the Shareholder shall promptly following receipt of a request from the Purchaser, reimburse the Purchaser (or its Affiliates) for amounts actually paid by the Purchaser (or its Affiliates) in respect of rent due under the lease agreement set forth on Schedule 8.2(f) hereof (the “Lease Agreement”) less any income relating to the premises governed by the Lease Agreement, including any sublease income, received by the Purchaser (or its Affiliates), during the periods in respect of which such reimbursement is sought.

Indemnification by the Shareholder. The Shareholder hereby agrees to indemnify, defend and hold harmless the Company and its respective officers, directors, employees and agents (a) Subject to the limitations set forth in Section 8.2(b) below, from and after the Closing Datecollectively, the Shareholder agrees to indemnify fully, hold harmless, protect and defend the Purchaser and their Affiliates (including, after the Closing, the Company), and their respective directors, officers, agents, partners and employees, successors and assigns (“Indemnified Persons”"Indemnitee") from and against and in respect of any and all Losses (as defined below) to the extent resulting from, arising out of, relating to, imposed upon or incurred by the Indemnitee by reason of: (i) the conduct of business by the Corporation prior to the Closing Date (but only to the extent that any such Loss was not a stated liability on the Corporation's most recently dated balance sheet delivered to the Company); or (ii) any inaccuracy in or breach of any of the Corporation's or the Shareholder's representations, warranties, covenants or agreements contained in this Agreement, the Related Agreements or in any other agreement or document entered into or delivered on or after the date hereof in connection with this Agreement or any of the transactions contemplated hereby and/or thereby, provided, however, that the indemnification by the Corporation and the Shareholder under this Section 9.1 shall include direct damages only (and not indirect or consequential damages). For purposes of this Agreement, the term "Losses" means any and all deficiencies, judgments, settlements, demands, claims, actions or causes of action, assessments, liabilities, losses, costsdamages (whether direct, claims indirect or consequential), interest, fines, penalties, costs and expenses (including, without limitation, third party claims)reasonable legal, damagesaccounting and other costs and expenses incurred in connection with investigating, obligationsdefending, judgments, settlements, awards, settling or satisfying any and all demands, offsetsclaims actions, actionscauses of action, suits, proceedings, payments, assessments, Taxesjudgments or appeals, interests, penalties, expenses, including, without limitation, reasonable out-of-pocket costs and attorneys’ in seeking indemnification therefor); and other professional fees, if any (collectively, “the term "Losses” which term " shall not include interest accruing liabilities incurred in the ordinary course of business consistent with the Corporation's past practices to the extent not reflected on the amount of any Loss from Corporation's most recently dated balance sheet, which shall be dated not earlier than the date Purchaser submits a claim for indemnification hereunder at the prime rate of Citibank, N.A.) actually incurred by any of them arising out of, or relating to: (i) any inaccuracy in, or breach of, any of the representations or warranties of the Shareholder or the Company contained in this Agreement; (ii) any failure to perform, or other breach of, any of the covenants or agreements of the Shareholder and the Company contained in this Agreement; (iii) any Liabilities of the Company arising out of, or relating to, the ownership or operation of any facility or assets, the conduct of any business, or any acts or omissions, by the Company last month end prior to the Closing; (iv) any Liabilities of the Company directly related to the Reorganization; and (v) any Tax imposed on the Company or a member of the Company Group, if any, for a Pre Closing Period (including the portion of any Tax imposed for a Straddle Period that is allocable to the portion of such period ending at the close of the Closing Date (the “Pre Closing Portion”)). In determining the Taxes for a Straddle Period allocable to the Pre Closing Portion, except as provided in the next sentence, the allocation shall be made on the basis of an interim closing of the books as of the end of the Closing Date. In the case of (i) franchise Taxes based on capitalization, debt or shares of stock authorized, issued or outstanding, (ii) ad valorem Taxes and (iii) any Tax other than Taxes based on or related to income, the portion of such Taxes for a Straddle Period allocable to the Pre Closing Portion shall be the amount of such Taxes for the Straddle Period (computed in accordance with past practice), multiplied by a fraction, the numerator of which is the number of such days in such taxable period ending on and including the Closing Date and the denominator of which is the aggregate number of days in such taxable period; provided, however, that if any property, asset or other right of Target Company is sold or otherwise transferred prior to the Closing, then ad valorem Taxes pertaining to such property, asset or other right shall be attributed entirely to the Pre Closing Portion. (b) Notwithstanding anything to the contrary contained herein, none of the Indemnified Persons shall be entitled to be indemnified hereunder (i) in respect of any Liabilities of SMF that are also Liabilities of the Company solely by reason of the Company’s status as a shareholder of SMF, (ii) in respect of any Liability for any Tax resulting (x) from the Merger or the purchase of the Shares (other than a Tax imposed on the Company as a result of a failure to comply with Section 897 or 1445 of the Code) or (y) from any transaction occurring after the Effective Time, (iii) in respect of any obligations of the Company under the Expatriate Compensation Agreement, dated August 4, 2003 between the Company, SMF and Etienne Snollaerts or (iv) any amounts reimbursed by the Shareholder pursuant to Section 8.2(f) hereof. (c) The right of the Indemnified Persons to be indemnified hereunder shall not be limited or affected by any investigation conducted or notice or knowledge obtained by or on behalf of any such Persons. (d) Following the Closing, the indemnity provided in this Section 8.2 shall be the sole and exclusive remedy of the Indemnified Persons with respect to any and all claims for Losses incurred by any of them arising out of, or relating to this Agreement and the transactions contemplated hereby, except for Losses arising from fraud or willful breach of this Agreement. (e) At the Closing, the Shareholder shall cause to be issued a letter of credit (the “Letter of Credit”) in favor of the Purchaser in customary form reasonably satisfactory to the Purchaser of a U.S. domestic bank or a branch of an international commercial bank reasonably satisfactory to the Purchaser, in a stated amount equal to five million dollars ($5,000,000) and with a term of 5 years from the Closing Date as security for the obligations of the Shareholder Shareholder's obligation under this Section 8.2. The terms of 9.1(a) to the Letter of Credit Indemnitee shall permit not become effective until the Purchaser Losses to draw on such Letter of Credit only after obtaining a valid judgment that Purchaser is entitled the Indemnitee exceed Ten Thousand Dollars, and the total cost to a payment from the Shareholder pursuant of his obligation to the Indemnitee under this Section 8.2, but said terms 9.1(a) shall not require that such judgment shall have become final and non-appealableexceed One Million Three Hundred Thirty Thousand Dollars ($1,330,000). (f) From time to time after the Closing Date, the Shareholder shall promptly following receipt of a request from the Purchaser, reimburse the Purchaser (or its Affiliates) for amounts actually paid by the Purchaser (or its Affiliates) in respect of rent due under the lease agreement set forth on Schedule 8.2(f) hereof (the “Lease Agreement”) less any income relating to the premises governed by the Lease Agreement, including any sublease income, received by the Purchaser (or its Affiliates), during the periods in respect of which such reimbursement is sought.

Indemnification by the Shareholder. (a) Subject to the limitations set forth in Section 8.2(b) below, from and after the Closing Date, the The Shareholder agrees to indemnify fullyindemnify, hold harmless, protect defend and defend the Purchaser bear all costs of defending Buyer and their Affiliates (includingits respective past, after the Closingpresent and future employees, the Company), and their respective directors, officers, agentsstockholders, partners agents and employeesattorneys (collectively, successors the “Buyer Indemnified Parties”), from, against and assigns (“Indemnified Persons”) from and against with respect to any and all lossesdamage, costsloss, claims deficiency, expense (includingincluding any reasonable attorney and accountant fees, without limitation, third party claimslegal costs or expenses), damagesaction, obligationssuit, judgmentsproceeding, settlementsdemand, awards, demands, offsets, actions, suits, proceedings, payments, assessments, Taxes, interests, penalties, expenses, including, without limitation, reasonable out-of-pocket costs and attorneys’ and other professional fees, if any assessment or judgment to or against the Buyer Indemnified Parties (collectively, “Losses” which term shall include interest accruing on the amount of any Loss from the date Purchaser submits a claim for indemnification hereunder at the prime rate of Citibank, N.A.Buyer’s Aggregate Net Loss”) actually incurred by any of them arising out of, of or relating toin connection with: (i) Any breach or inaccuracy of any inaccuracy in, representation or breach of, any warranty of the representations or warranties of the Shareholder or the Company Sellers contained in this Agreement; (ii) Any claim by any failure person asserting any ownership interest in or rights to perform, the Business or other breach of, to acquire any equity interest of the covenants or agreements of Company and related to the Shareholder and time period prior to the Company contained in this AgreementEffective Date; (iii) any Liabilities Fees and expenses of persons engaged by the Sellers in connection with the negotiation and execution of this Agreement or consummation of the transactions contemplated hereby; (iv) Business activities of the Company arising out ofprior to the Effective Date including, or relating but not limited to, the ownership those arising from any services or operation of any facility or assets, the conduct of any business, or any acts or omissions, products provided by the Company prior to the ClosingEffective Date (excluding however, customary warranty and service work performed by the Company in the Ordinary Course of Business prior to the Effective Date and business activities of the Company related to the Equipment Indebtedness and Vehicle Lease Obligations for the time period after the Effective Date); (ivv) Claims by third parties made against the Buyer Indemnified Parties after the Effective Date but arising from or relating to any Liabilities of action, inaction, event, occurrence or circumstance occurring or existing prior to the Effective Date (excluding however, customary warranty and service work performed by the Company directly in the Ordinary Course of Business prior to the Effective Date and claims related to the ReorganizationEquipment Indebtedness and Vehicle Lease Obligations for the time period after the Effective Date); (vi) Any violation of, or nonperformance by, the Shareholder of any of his covenants or agreements contained in this Agreement or in any Related Document; (vii) That certain personal property tax appeal and proceeding related to the Company’s 2014 taxes; and (vviii) any Tax imposed on the Company or a member of the Company Group, if any, for a Pre Closing Period (including the portion of any Tax imposed for a Straddle Period that is allocable to the portion of such period ending at the close of the Closing Date (the “Pre Closing Portion”)). In determining the Taxes for a Straddle Period allocable to the Pre Closing Portion, except as provided in the next sentence, the allocation shall be made on the basis of an interim closing of the books as of the end of the Closing Date. In the case of (i) franchise Taxes based on capitalization, debt or shares of stock authorized, issued or outstanding, (ii) ad valorem Taxes and (iii) any Tax other than Taxes based on or related to income, the portion of such Taxes for a Straddle Period allocable to the Pre Closing Portion shall be the amount of such Taxes for the Straddle Period (computed in accordance with past practice), multiplied by a fraction, the numerator of which is the number of such days in such taxable period ending on and including the Closing Date and the denominator of which is the aggregate number of days in such taxable period; provided, however, that if any property, asset or other right of Target Company is sold or otherwise transferred prior to the Closing, then ad valorem Taxes pertaining to such property, asset or other right shall be attributed entirely to the Pre Closing Portion. (b) Notwithstanding anything to the contrary contained herein, none of the Indemnified Persons shall be entitled to be indemnified hereunder (i) in respect of any Liabilities of SMF that are also Liabilities of the Company solely by reason of the Company’s status as a shareholder of SMF, (ii) in respect of any Liability for any Tax resulting (x) from the Merger or the purchase of the Shares (other than a Tax imposed on the Company as a result of a failure to comply with Section 897 or 1445 of the Code) or (y) from any transaction occurring after the Effective Time, (iii) in respect of any obligations of the Company Any claim arising under the Expatriate Compensation Agreement, dated August 4, 2003 between the Company, SMF and Etienne Snollaerts or (iv) any amounts reimbursed by the Shareholder pursuant to Section 8.2(f) hereof. (c) The right of the Indemnified Persons to be indemnified hereunder shall not be limited or affected by any investigation conducted or notice or knowledge obtained by or on behalf of any such Persons. (d) Following the Closing, the indemnity provided in this Section 8.2 shall be the sole and exclusive remedy of the Indemnified Persons with respect to any and all claims for Losses incurred by any of them arising out of, or relating to this Agreement and the transactions contemplated hereby, except for Losses arising from fraud or willful breach of this Settlement Agreement. (e) At the Closing, the Shareholder shall cause to be issued a letter of credit (the “Letter of Credit”) in favor of the Purchaser in customary form reasonably satisfactory to the Purchaser of a U.S. domestic bank or a branch of an international commercial bank reasonably satisfactory to the Purchaser, in a stated amount equal to five million dollars ($5,000,000) and with a term of 5 years from the Closing Date as security for the obligations of the Shareholder under this Section 8.2. The terms of the Letter of Credit shall permit the Purchaser to draw on such Letter of Credit only after obtaining a valid judgment that Purchaser is entitled to a payment from the Shareholder pursuant to this Section 8.2, but said terms shall not require that such judgment shall have become final and non-appealable. (f) From time to time after the Closing Date, the Shareholder shall promptly following receipt of a request from the Purchaser, reimburse the Purchaser (or its Affiliates) for amounts actually paid by the Purchaser (or its Affiliates) in respect of rent due under the lease agreement set forth on Schedule 8.2(f) hereof (the “Lease Agreement”) less any income relating to the premises governed by the Lease Agreement, including any sublease income, received by the Purchaser (or its Affiliates), during the periods in respect of which such reimbursement is sought.

Indemnification by the Shareholder. (a) Subject to the limitations set forth in Section 8.2(b) below, from and after the Closing Date, the The Shareholder agrees to indemnify fullyand hold harmless Buyer against and in respect to all damages (as hereinafter defined) up to the amount of the Purchase Price. Damages, hold harmlessas used herein shall include any claim, protect salary, wage, action, tax, demand, loss, cost, expense, liability (joint or several), penalty, and defend the Purchaser and their Affiliates (other damage, including, after without limitation, counsel fees and other costs and expenses reasonably incurred in investigating or attempting to avoid same or in opposition to the imposition thereof, or in enforcing this indemnity, resulting to Buyer from any inaccurate representation made by or on behalf of the Shareholder in or pursuant to this Agreement, breach of any of the warranties made by or on behalf of the Shareholder in or pursuant to this Agreement, or breach or default in the performance by the Shareholder of any of the obligations to be performed by it hereunder. Notwithstanding the scope of the Shareholder's representations and warranties herein, or of any individual representation or warranty, or any disclosure to Buyer herein or pursuant hereto, or the definition of damages contained in the preceding sentence, or Buyer's knowledge of any fact or facts at or prior to the Closing, damages shall also include all debts, liabilities, and obligations of any nature whatsoever (whether absolute, accrued, contingent, or otherwise, and whether due or to become due) of the Company), as of the date hereof, whether known or unknown by the Shareholder; all claims, actions, demands, losses, costs, expenses, and their respective directorsliabilities resulting from any litigation from causes of action arising prior to the Closing involving the Company or any stockholders thereof other than the Shareholder, officerswhether or not disclosed to Buyer; all claims, agentsactions, partners demands, losses, costs, expenses, liabilities and employeespenalties resulting from (i) the Company's infringement or claimed infringement upon or acting adversely to the rights or claimed rights of any person under or in respect to any copyrights, successors and assigns trademarks, trademark rights, patents, patent rights or patent licenses; or (“Indemnified Persons”ii) any claim or pending or threatened action with respect to the matters described in clause (i); all claims, actions, demands, losses, costs, expenses, liabilities or penalties resulting from and against the Company's failure in any respect to perform any obligation required by it to be performed at or prior to the Closing, or by reason of any default of the Company, at the Closing, under any of the contracts, agreements, leases, documents, or other commitments to which it is a party or otherwise bound or affected; and all losses, costs, claims (including, without limitation, third party claims), damages, obligations, judgments, settlements, awards, demands, offsets, actions, suits, proceedings, payments, assessments, Taxes, interests, penalties, expenses, including, without limitation, reasonable out-of-pocket costs and attorneys’ and other professional fees, if any (collectively, “Losses” which term shall include interest accruing on the amount of any Loss from the date Purchaser submits a claim for indemnification hereunder at the prime rate of Citibank, N.A.) actually incurred by any of them arising out of, or relating to: (i) any inaccuracy in, or breach of, any of the representations or warranties of the Shareholder or the Company contained in this Agreement; (ii) any failure to perform, or other breach of, any of the covenants or agreements of the Shareholder and the Company contained in this Agreement; (iii) any Liabilities of the Company arising out of, or relating to, the ownership or operation of any facility or assets, the conduct of any business, or any acts or omissions, by the Company prior to the Closing; (iv) any Liabilities of the Company directly related to the Reorganization; and (v) any Tax imposed on the Company or a member of the Company Group, if any, for a Pre Closing Period expenses (including the portion without limitation all fees and disbursements of any Tax imposed for a Straddle Period that is allocable counsel) relating to the portion of such period ending at the close of the Closing Date (the “Pre Closing Portion”))damages. In determining the Taxes for a Straddle Period allocable to the Pre Closing Portion, except as provided in the next sentence, the allocation The Shareholder shall be made on the basis of an interim closing of the books as of the end of the Closing Date. In the case of (i) franchise Taxes based on capitalization, debt or shares of stock authorized, issued or outstanding, (ii) ad valorem Taxes and (iii) any Tax other than Taxes based on or related to income, the portion of such Taxes for a Straddle Period allocable to the Pre Closing Portion shall be the amount of such Taxes for the Straddle Period (computed in accordance with past practice), multiplied by a fraction, the numerator of which is the number of such days in such taxable period ending on and including the Closing Date and the denominator of which is the aggregate number of days in such taxable period; provided, however, that if any property, asset or other right of Target Company is sold or otherwise transferred prior to the Closing, then ad valorem Taxes pertaining to such property, asset or other right shall be attributed entirely to the Pre Closing Portion. (b) Notwithstanding anything to the contrary contained herein, none of the Indemnified Persons shall be entitled to be indemnified hereunder (i) in respect of any Liabilities of SMF that are also Liabilities of the Company solely by reason of the Company’s status as a shareholder of SMF, (ii) in respect of any Liability for any Tax resulting (x) from the Merger or the purchase of the Shares (other than a Tax imposed on the Company as a result of a failure to comply with Section 897 or 1445 of the Code) or (y) from any transaction occurring after the Effective Time, (iii) in respect of any obligations of the Company under the Expatriate Compensation Agreement, dated August 4, 2003 between the Company, SMF and Etienne Snollaerts or (iv) any amounts reimbursed by the Shareholder pursuant to Section 8.2(f) hereof. (c) The right of the Indemnified Persons to be indemnified hereunder shall not be limited or affected by any investigation conducted or notice or knowledge obtained by or reimburse and/or pay on behalf of Buyer and/or the Company on demand for any such Persons. (d) Following the Closing, the indemnity provided in this Section 8.2 shall be the sole and exclusive remedy of the Indemnified Persons with respect to any and all claims for Losses incurred by any of them arising out of, payment made or relating to this Agreement and the transactions contemplated hereby, except for Losses arising from fraud or willful breach of this Agreement. (e) At the Closing, the Shareholder shall cause required to be issued a letter of credit (made by Buyer and/or the “Letter of Credit”) in favor of the Purchaser in customary form reasonably satisfactory to the Purchaser of a U.S. domestic bank or a branch of an international commercial bank reasonably satisfactory to the Purchaser, in a stated amount equal to five million dollars ($5,000,000) and with a term of 5 years from the Closing Date as security for the obligations of the Shareholder under this Section 8.2. The terms of the Letter of Credit shall permit the Purchaser to draw on such Letter of Credit only after obtaining a valid judgment that Purchaser is entitled to a payment from the Shareholder pursuant to this Section 8.2, but said terms shall not require that such judgment shall have become final and non-appealable. (f) From time to Company at any time after the Closing Datebased upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands or actions, in respect to the damages to which the foregoing indemnity relates. Buyer shall give, or Buyer shall cause the Company to give, the Shareholder shall promptly following receipt written notice within 30 days after notification of any litigation threatened or instituted against the Company which might constitute the basis of a request from claim for indemnity by Buyer and/or the Purchaser, reimburse Company against the Purchaser (or its Affiliates) for amounts actually paid by the Purchaser (or its Affiliates) Shareholder. Notwithstanding anything contained in respect of rent due under the lease agreement set forth on Schedule 8.2(f) hereof (the “Lease Agreement”) less any income relating this Agreement to the premises governed by contrary, the Lease Agreement, including any sublease income, received by right to indemnification described in this paragraph shall expire 24 months after the Purchaser (or its Affiliates), during the periods in respect of which such reimbursement is soughtClosing.