Common use of Indemnification by the Stockholder Clause in Contracts

Indemnification by the Stockholder. The Stockholder will, and hereby does, indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 6) the Company, each director and officer of the Company, and each other Person, if any, who controls the Company, within the meaning of the Securities Act, with respect to any untrue statement or alleged untrue statement of a material fact in or omission or alleged omission to state a material fact from such Registration Statement, any Prospectus contained therein, or any amendment or supplement thereto, if such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by the Stockholder for use in the preparation of such Registration Statement, Prospectus, or amendment or supplement thereto; PROVIDED, HOWEVER, that the Stockholder shall not be liable to the extent that the losses, liabilities or expenses arise out of or are based upon (i) the use by the Company of any Prospectus after such time as the obligation of the Company to keep the same effective and current has expired or (ii) the use by the Company of any Prospectus after such time as the Stockholder has advised the Company that the filing of a post-effective amendment or supplement thereto is required with respect to any information contained in such Prospectus concerning the Stockholder, except such Prospectus as so amended or supplemented. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company, or any such director, officer, or controlling person and shall survive the transfer of such securities by the Stockholder.

Indemnification by the Stockholder. The Stockholder will, and hereby does, indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 6) the Company, each director and officer of the Company, and each other Person, if any, who controls the Company, within the meaning of the Securities Act, with respect to any untrue statement or alleged untrue statement of a material fact in or omission or alleged omission to state a material fact from such Registration Statement, any Prospectus contained therein, or any amendment or supplement thereto, if such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by the Stockholder for use in the preparation of such Registration Statement, Prospectus, or amendment or supplement thereto; PROVIDED, HOWEVER, that the Stockholder shall not be liable to the extent that the losses, liabilities or expenses arise out of or are based upon (i) the use by the Company of any Prospectus after such time as the obligation of the Company to keep the same effective and current has expired or (ii) the use by the Company of any Prospectus after such time as the Stockholder has advised the Company that the filing of a post-effective amendment or supplement thereto is required with respect to any information contained in such Prospectus concerning the Stockholder, except such Prospectus as so amended or supplemented. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company, or any such director, officer, officer or controlling person and shall survive the transfer of such securities by the Stockholder.

Indemnification by the Stockholder. The 8.1.1 From and after the Closing, the Stockholder will, and hereby doesshall defend, indemnify and hold Purchaser and its Affiliates harmless (from and against and in respect of any and all actual losses, liabilities, damages, judgments, settlements and expenses, including interest and penalties recovered by a third party with respect thereto and reasonable attorneys' fees and expenses and reasonable accountants' fees and expenses incurred in the same manner and to investigation or defense of any of the same extent as or in asserting, preserving or enforcing any of Purchaser's rights arising under this Article 8 (collectively, "Purchaser Losses"), incurred by Purchaser and its Affiliates (the "Purchaser Indemnitees") which arise out of: (a) any breach by the Stockholder of any of its representations and warranties contained in this Agreement and the Additional Documents; provided, however, that for purposes of this Article 8 only, all references in Article 4 to "Material Adverse Effect" shall be deemed to be references to "Adverse Effect"; and (b) any breach by the Stockholder of any of its covenants in this Agreement (other than the covenant set forth in subdivision Section 6.6) which survive the Closing. The Purchaser shall give the Stockholder prompt written notice of any third party claim which may give rise to any indemnity obligation under this Section 8.1, together with the estimated amount of such claim, and the Stockholder shall have the right to assume the defense (aat its expense) of this Section 6) any such claim through counsel of its own choosing, by so notifying Purchaser within 30 days of receipt of Purchaser's written notice; provided, however, that the CompanyStockholder's counsel shall be reasonably satisfactory to Purchaser. Failure to give prompt notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If Purchaser desires to participate in any such defense assumed by the Stockholder, each director it may do so at its sole cost and officer expense, provided that if, under applicable standards of professional conduct, a conflict on any significant issue between any of the CompanyPurchaser Indemnitees and the Stockholder exists in respect of such third party claim, the Stockholder shall pay the reasonable fees and each expenses of one such additional counsel as may be required to be retained in order to resolve such conflict. The Stockholder shall be liable for the fees and expenses of counsel employed by Purchaser for any period during which the Stockholder has not assumed the defense thereof (other Person, if any, who controls the Company, within the meaning than during any period in which Purchaser shall have failed to give notice of the Securities Actthird party claim as provided above). If the Stockholder assumes such defense, with respect Purchaser shall have the right to any untrue statement or alleged untrue statement of a material fact participate in or omission or alleged omission the defense thereof and to state a material fact employ counsel, at its own expense, separate from such Registration Statement, any Prospectus contained therein, or any amendment or supplement thereto, if such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company counsel employed by the Stockholder for use in the preparation of such Registration StatementStockholder, Prospectus, or amendment or supplement thereto; PROVIDED, HOWEVER, it being understood that the Stockholder shall control such defense. If the Stockholder chooses to defend or prosecute a third party claim, the Purchaser shall cooperate in the defense or prosecution thereof, which cooperation shall include the retention and the provision to the Stockholder of records and information which are reasonably relevant to such third party claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Stockholder chooses to defend or prosecute any third party claim, Purchaser will agree to any settlement, compromise or discharge of such third party claim which the Stockholder may recommend and which by its terms obligates the Stockholder to pay the full amount of liability in connection with such third party claim; provided, however, that, without Purchaser's consent, which shall not be liable unreasonably withheld, the Stockholder shall not consent to entry of any judgment or enter into any settlement (x) that provides for injunctive or other nonmonetary relief affecting Purchaser or any Affiliate thereof, or (y) that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Purchaser Indemnitee that is the subject of such third party claim of a release from all liability with respect to such claim. 8.1.2 The foregoing obligation to indemnify Purchaser and its Affiliates set forth in Sections 8.1.1 and 8.1.5 shall be subject to each of the following limitations: (a) The Stockholder's indemnification obligation (i) for any breach of the representations and warranties contained in this Agreement and in the Additional Documents shall survive only until (A) November 15, 1999, in the case of Purchaser Losses for which the Stockholder would be entitled to recover under the Seessel's Purchase Agreement and (B) December 31, 1999, in the case of all other Purchaser Losses (as the case may be, the "Applicable Indemnification Period"), and (ii) under Section 8.1.5 shall survive until the expiration of the applicable statute of limitations, and thereafter all such representations and warranties and other indemnities of the Stockholder under this Agreement shall be extinguished. No claim for the recovery of such Purchaser Losses may be asserted by Purchaser or any of its Affiliates after the Applicable Indemnification Period; provided, however, that claims first asserted in writing with reasonable specificity within the Applicable Indemnification Period shall not thereafter be barred. (b) No reimbursement for Purchaser Losses asserted against the Stockholder under Section 8.1.1 or other liabilities under Section 8.1.5 (other than Sections 8.1.5(a)(iii) and 8.1.5(b)) above shall be required unless and until the cumulative aggregate amount of such Purchaser Losses equals or exceeds $1,760,000 (the "Threshold") and then only to the extent that the lossescumulative aggregate amount of Purchaser Losses, liabilities or expenses arise out of or are based upon as finally determined, exceeds said Threshold; provided, however, that (i) the use by the Company limitations set forth in this clause (b) shall not apply to Purchaser Losses arising out of any Prospectus after such time as the obligation a breach of the Company to keep the same effective Section 4.1(a) and current has expired or (ii) in calculating whether Purchaser Losses exceed such Threshold, any Purchaser Losses which individually total less than $10,000 each ("De Minimis Purchaser Losses") shall be excluded in their entirety and the use Stockholder in any event shall have no liability hereunder to Purchaser and its Affiliates for any such De Minimis Purchaser Losses. To the extent any Purchaser Loss is not a De Minimis Purchaser Loss, the full amount of such Purchaser Loss individually or, in the aggregate with the full amount of such other Purchaser Losses that are not De Minimis Purchaser Losses, shall be included in any calculation to determine whether the cumulative aggregate amount of Purchaser Losses equals or exceeds the Threshold. (c) The Stockholder's liability to Purchaser and its Affiliates under Section 8.1.1 for Purchaser Losses (other than Purchaser Losses arising out of a breach of Section 4.1(a)) and under Section 8.1.5 (other than Sections 8.1.5(a)(iii) and 8.1.5(b)) in excess of the Threshold shall not exceed $20,000,000. 8.1.3 The indemnities provided in this Section 8.1 shall survive the Closing. Except for actual fraud (including securities and tax fraud), the indemnity provided in this Section 8.1 and the adjustment provided by Section 2.3 shall be the sole and exclusive remedy of the indemnified party against the Stockholder at law or equity for any matter covered by paragraphs 8.1.1(a) and (b). 8.1.4 In no event shall the Stockholder be liable to Purchaser or its Affiliates for special, indirect, incidental, consequential or punitive damages (except for special, indirect, incidental, consequential or punitive damages that are asserted by a third party in a bona fide third party claim). 8.1.5 The Stockholder shall indemnify, defend, and hold harmless the Purchaser Indemnitees from and against (a) any and all Taxes imposed upon the Company of (other than any Prospectus after such time amount for Taxes specifically identified and reflected as a reserve on the Stockholder has advised the Company that the filing of a post-effective amendment or supplement thereto is required Interim Balance Sheet) with respect to (i) any information contained period ending prior to the Closing Date ("Pre-Closing Period"), (ii) any taxable period beginning before the Closing Date and ending after the Closing Date (such periods are hereinafter referred to as "Straddle Periods"), but only with respect to the portion of such Straddle Period ending on the Closing Date and in such Prospectus concerning the Stockholdermanner provided in Section 8.1.6 hereof and (iii) Taxes, except such Prospectus as so amended or supplemented. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf other than Taxes of the Company, imposed on the Company pursuant to Treasury Regulations Section 1.1502-6 (or any such directorcomparable provision of state or local law or regulation imposing several liability on members of a consolidated, officercombined, affiliated or controlling person and shall survive unitary group) for any Pre-Closing Period or Straddle Period (but only with respect to the transfer portion of such securities Straddle Period ending on the Closing Date) and (b) any withdrawal liability to which the Company becomes liable arising solely as a result of any complete or partial withdrawal from any multiemployer plan (as defined in Section 3(37) or Section 4001(a)(3) of ERISA or Section 414(f) of the Code) by the StockholderStockholder or any Person that is or at any time within the five year period prior to the date of this Agreement was under common control (within the meaning of subsections 414(b), (c), (m) or (o) of the Code) with the Stockholder (other than the Company); provided, however, that no recovery under this Section 8.1.5 shall be duplicative of any recovery under Section 8.1.1 with respect to a breach of any representation or warranty contained in Section 4.16 or 4.27.2. 8.1.6 For purposes of determining the amount of Taxes for or which relate to a Straddle Period, the Closing Date shall be treated as the last day of a taxable period, and the portion of any such Tax that is allocable to the taxable period that is so deemed to end on and include the Closing Date shall be determined by means of a closing of the books and records of the Company as of the close of business on the Closing Date and, to the extent not susceptible to such allocation, by apportionment on the basis of elapsed days. Any credits shall be taken into account as though the relevant taxable period ended on the Closing Date. All determinations, income, deduction, gain, loss and credits necessary to give effect to the foregoing allocations shall be made in a manner consistent with prior Tax Returns of the Company. 8.1.7 No recovery under this Section 8.1 shall be duplicative of any adjustment that Purchaser obtains pursuant to Section 2.3.

Indemnification by the Stockholder. The Parent may require, as a condition to including any Registrable Securities of the Stockholder willin any registration statement filed pursuant to Section 2, and hereby does, that Parent shall have received an undertaking reasonably satisfactory to it from the Stockholder to indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 6) the CompanyParent, each director and officer of the CompanyParent, and each other Person, if any, who controls the CompanyParent, within the meaning of the Securities Act, with respect to any untrue statement or alleged untrue statement of a material fact in or omission or alleged omission to state a material fact from such Registration Statementregistration statement, any Prospectus preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, if such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company Parent by the Stockholder for use in the preparation of such Registration Statementregistration statement, Prospectuspreliminary prospectus, or final prospectus, summary prospectus, amendment or supplement thereto; PROVIDED, HOWEVER, that the Stockholder shall not be liable to the extent that the losses, liabilities or expenses arise out of or are based upon (i) the use by the Company Parent of any Prospectus prospectus after such time as the obligation of the Company Parent to keep the same effective and current has expired or (ii) the use by the Company Parent of any Prospectus prospectus after such time as the Stockholder has advised the Company Parent that the filing of a post-effective amendment or supplement thereto is required with respect to any information contained in such Prospectus prospectus concerning the Stockholder, except such Prospectus prospectus as so amended or supplemented. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the CompanyParent, or any such director, officer, or controlling person and shall survive the transfer of such securities by the Stockholder.