Common use of Indemnification by the Shareholder Clause in Contracts

Indemnification by the Shareholder. The Shareholder hereby agrees to indemnify, defend and hold harmless the Company and its respective officers, directors, employees and agents (collectively, the "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, damages (whether direct, indirect or consequential), interest, fines, penalties, costs and expenses (including, without limitation, reasonable legal, accounting and other costs and expenses incurred in connection with investigating, defending, settling or satisfying any and all demands, claims actions, causes of action, suits, proceedings, assessments, judgments or appeals, and in seeking indemnification therefor); and the term "Losses" shall not include liabilities incurred in the ordinary course of business consistent with the Corporation's past practices to the extent not reflected on the Corporation's most recently dated balance sheet, which shall be dated not earlier than the last month end prior to the Closing Date. The Shareholder's obligation under this Section 9.1(a) to the Indemnitee shall not become effective until the Losses to the Indemnitee exceed Ten Thousand Dollars, and the total cost to the Shareholder of his obligation to the Indemnitee under this Section 9.1(a) shall not exceed One Million Three Hundred Thirty Thousand Dollars ($1,330,000).

Indemnification by the Shareholder. (a) The Shareholder hereby agrees to indemnify, hold harmless, defend and hold harmless the Company bear all costs of defending Buyer and its respective officerspast, present and future employees, directors, employees officers, stockholders, agents and agents attorneys (collectively, the "Indemnitee") from and “Buyer Indemnified Parties”), from, against and in with respect of to any and all Losses damage, loss, deficiency, expense (as defined belowincluding any reasonable attorney and accountant fees, legal costs or expenses), action, suit, proceeding, demand, assessment or judgment to or against the Buyer Indemnified Parties (collectively, “Buyer’s Aggregate Net Loss”) to the extent resulting from, arising out of, relating to, imposed upon of or incurred by the Indemnitee by reason of: in connection with: (i) Any breach or inaccuracy of any representation or warranty of the conduct Sellers contained in this Agreement; (ii) Any claim by any person asserting any ownership interest in or rights to the Business or to acquire any equity interest of business by the Corporation Company and related to the time period prior to the Closing Effective Date; (iii) 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 prior to the Effective Date including, but not limited to, those arising from any services or products provided by the Company prior to the Effective Date (but only excluding however, customary warranty and service work performed by the Company in the Ordinary Course of Business prior to the extent that any such Loss was not a stated liability on Effective Date and business activities of the Corporation's most recently dated balance sheet delivered Company related to the CompanyEquipment Indebtedness and Vehicle Lease Obligations for the time period after the Effective Date); ; (v) Claims by third parties made against the Buyer Indemnified Parties after the Effective Date but arising from or relating to any action, inaction, event, occurrence or circumstance occurring or existing prior to the Effective Date (iiexcluding however, customary warranty and service work performed by the Company in the Ordinary Course of Business prior to the Effective Date and claims related to the Equipment Indebtedness and Vehicle Lease Obligations for the time period after the Effective Date); (vi) any inaccuracy in Any violation of, or breach nonperformance by, the Shareholder of any of the Corporation's or the Shareholder's representations, warranties, his covenants or agreements contained in this Agreement, the Related Agreements Agreement 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 Related Document; (vii) That certain personal property tax appeal 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, damages (whether direct, indirect or consequential), interest, fines, penalties, costs and expenses (including, without limitation, reasonable legal, accounting and other costs and expenses incurred in connection with investigating, defending, settling or satisfying any and all demands, claims actions, causes of action, suits, proceedings, assessments, judgments or appeals, and in seeking indemnification therefor); and the term "Losses" shall not include liabilities incurred in the ordinary course of business consistent with the Corporation's past practices proceeding related to the extent not reflected on Company’s 2014 taxes; and (viii) Any claim arising under the Corporation's most recently dated balance sheet, which shall be dated not earlier than the last month end prior to the Closing Date. The Shareholder's obligation under this Section 9.1(a) to the Indemnitee shall not become effective until the Losses to the Indemnitee exceed Ten Thousand Dollars, and the total cost to the Shareholder of his obligation to the Indemnitee under this Section 9.1(a) shall not exceed One Million Three Hundred Thirty Thousand Dollars ($1,330,000)Settlement Agreement.

Indemnification by the Shareholder. The Shareholder hereby agrees to indemnify, defend indemnify and hold harmless the Company and its respective officers, directors, employees and agents (collectively, the "Indemnitee") from and Buyer against and in respect to all damages (as hereinafter defined) up to the amount of the Purchase Price. Damages, as used herein shall include any claim, salary, wage, action, tax, demand, loss, cost, expense, liability (joint or several), penalty, and other damage, including, 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 all Losses (as defined below) 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 extent resulting fromClosing, arising out ofdamages shall also include all debts, relating toliabilities, imposed upon and obligations of any nature whatsoever (whether absolute, accrued, contingent, or incurred otherwise, and whether due or to become due) of the Company, as of the date hereof, whether known or unknown by the Indemnitee by reason of: Shareholder; all claims, actions, demands, losses, costs, expenses, and liabilities resulting from any litigation from causes of action arising prior to the Closing involving the Company or any stockholders thereof other than the Shareholder, whether or not disclosed to Buyer; all claims, actions, demands, losses, costs, expenses, liabilities and penalties resulting from (i) the conduct of business by the Corporation prior Company's infringement or claimed infringement upon or acting adversely to the Closing Date (but only rights or claimed rights of any person under or in respect 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)copyrights, trademarks, trademark rights, patents, patent rights or patent licenses; or (ii) any inaccuracy claim or pending or threatened action with respect to the matters described in clause (i); all claims, actions, demands, losses, costs, expenses, liabilities or breach penalties resulting from 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 Corporation's contracts, agreements, leases, documents, or other commitments to which it is a party or otherwise bound or affected; and all losses, costs, and expenses (including without limitation all fees and disbursements of counsel) relating to damages. The Shareholder shall reimburse and/or pay on behalf of Buyer and/or the Company on demand for any payment made or required to be made by Buyer and/or the Company at any time after the Closing based 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 written notice within 30 days after notification of any litigation threatened or instituted against the Company which might constitute the basis of a claim for indemnity by Buyer and/or the Company against the Shareholder's representations, warranties, covenants or agreements . Notwithstanding anything contained in this AgreementAgreement to the contrary, the Related Agreements or right to indemnification described in any other agreement or document entered into or delivered on or this paragraph shall expire 24 months 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, damages (whether direct, indirect or consequential), interest, fines, penalties, costs and expenses (including, without limitation, reasonable legal, accounting and other costs and expenses incurred in connection with investigating, defending, settling or satisfying any and all demands, claims actions, causes of action, suits, proceedings, assessments, judgments or appeals, and in seeking indemnification therefor); and the term "Losses" shall not include liabilities incurred in the ordinary course of business consistent with the Corporation's past practices to the extent not reflected on the Corporation's most recently dated balance sheet, which shall be dated not earlier than the last month end prior to the Closing Date. The Shareholder's obligation under this Section 9.1(a) to the Indemnitee shall not become effective until the Losses to the Indemnitee exceed Ten Thousand Dollars, and the total cost to the Shareholder of his obligation to the Indemnitee under this Section 9.1(a) shall not exceed One Million Three Hundred Thirty Thousand Dollars ($1,330,000)Closing.

Indemnification by the Shareholder. The (a) Subject to the limitations set forth in Section 8.2(b) below, from and after the Closing Date, the Shareholder hereby agrees to indemnifyindemnify fully, hold harmless, protect and defend the Purchaser and hold harmless their Affiliates (including, after the Company Closing, the Company), and its their respective directors, officers, directorsagents, employees partners and agents employees, successors and assigns (collectively, the "Indemnitee"“Indemnified Persons”) 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, damages (whether directcosts, indirect or consequential), interest, fines, penalties, costs and expenses claims (including, without limitation, reasonable legalthird party claims), accounting and other costs and expenses incurred in connection with investigatingdamages, defendingobligations, settling or satisfying any and all judgments, settlements, awards, demands, claims offsets, actions, causes of action, suits, proceedings, payments, assessments, judgments 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 appealsrelating to: (i) any inaccuracy in, and or breach of, any of the representations or warranties of the Shareholder or the Company contained in seeking indemnification therefor); this Agreement; (ii) any failure to perform, or other breach of, any of the covenants or agreements of the Shareholder and the term "Losses" shall not include liabilities incurred 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 ordinary course of business consistent with next sentence, the Corporation's past practices to the extent not reflected allocation shall be made on the Corporation's most recently dated balance sheet, which shall be dated not earlier than basis of an interim closing of the last month books as of the end prior to 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 Shareholder's obligation 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 9.1(a8.2. 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 Indemnitee shall not become effective until premises governed by the Losses to Lease Agreement, including any sublease income, received by the Indemnitee exceed Ten Thousand DollarsPurchaser (or its Affiliates), and during the total cost to the Shareholder periods in respect of his obligation to the Indemnitee under this Section 9.1(a) shall not exceed One Million Three Hundred Thirty Thousand Dollars ($1,330,000)which such reimbursement is sought.