Common use of Indemnification of Buyer and the Company Clause in Contracts

Indemnification of Buyer and the Company. The Sellers jointly and severally agree to indemnify and hold harmless Buyer (and, following the Closing, the Company) and each officer, director, employee and affiliate of Buyer (and each person who is an officer, director, employee or affiliate of the Company following the Closing) (collectively, the "Buyer Indemnified Parties") from and against any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs, and expenses (including court costs and attorneys' fees and expenses incurred in investigating and preparing for any litigation or proceeding) (collectively, "Indemnified Costs") which any of the Buyer Indemnified Parties may sustain, or to which any of the Buyer Indemnified Parties may be subjected, arising out of (i) any breach or default by any of the Sellers or (if committed prior to the Closing) the Company of or under any of the representations, warranties, covenants, conditions, agreements, or other provisions of this Agreement or any agreement, document or certificate executed in connection herewith (including, without limitation, the certificates to be delivered pursuant to Sections 5.1(b) and 5.1(h) hereof; (ii) any Taxes owed by the Company or the Subsidiary with respect to any period prior to the Closing or with respect to partial or prorated periods up to and including the Closing Date or with respect to or arising out of the transfer of the Owned Real Property pursuant to this Agreement; or (iii) any claim, litigation proceeding or investigation with respect to which the principal event or events giving rise thereto occurred prior to the Closing (excluding, however, the matter described on Schedule 3.16 hereto); provided, however, that, notwithstanding the foregoing, following the Closing, the liability of the Sellers to indemnify and hold harmless the Buyer Indemnified Parties for Indemnified Costs shall be subject to the following limitations: (a) With respect to the Sellers' obligation to indemnify and hold harmless the Indemnified Parties for Indemnified Costs under clauses (i), (ii) and (iii) of the first sentence of this Section 7.1, (i) the Sellers shall indemnify and hold harmless the Buyer Indemnified Parties for such Indemnified Costs only if and to the extent such Indemnified Costs exceed $100,000 (the "Basket Amount") in the aggregate (after which, subject to the other limitations set forth in this Agreement, all such Indemnified Costs in excess of such $100,000 shall be recoverable), (ii) such Indemnified Costs for which the Buyer Indemnified Parties actually receive indemnification from the Sellers (other than any such indemnification for the breach of any representation or warranty in Section 3.17 hereof or pursuant to clause (ii) of the first sentence of this Section 7.1) shall not exceed $400,000 in the aggregate (the "Non-Tax Cap Amount"), and (iii) such Indemnified Costs for which the Buyer Indemnified Parties actually receive indemnification from the Sellers for the breach of any representation or warranty in Section 3.17 hereof or pursuant to clause (ii) of the first sentence of this Section 7.1 shall not exceed $1,000,000 in the aggregate (the "Tax Cap Amount"); provided that the limitations set forth in clauses (i) and (ii) of this sentence shall not apply to any breach of a representation or warranty contained in any of Sections 3.1, 3.2, 3.3, or any of the initial five sentences of Section 3.6, or due to the actual fraud or any intentional misrepresentation of any Seller. (b) The Company shall remit to the Sellers any amounts actually received by the Company from any governmental authority or other third party in respect of Indemnified Costs for which the Company has previously been indemnified by the Sellers pursuant to this Section 7.1.

Indemnification of Buyer and the Company. The Each of the Sellers jointly and severally agree to indemnify and hold harmless Buyer (and, following the Closing, the Company) and each officer, director, employee employee, and affiliate of Buyer (and each person who is an officer, director, employee or affiliate of the Company following the Closing) (collectively, the "Buyer Indemnified Parties") from and against any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs, and expenses (including court costs and attorneys' fees and expenses incurred in investigating and preparing for any litigation or proceeding) (collectively, "Indemnified Costs") which any of the Buyer Indemnified Parties may sustain, or to which any of the Buyer Indemnified Parties may be subjected, arising out of (i) any breach or default by any of the Sellers or (if committed prior to the Closing) the Company of or under any of the representations, warranties, covenants, conditions, agreements, or other provisions of this Agreement or any agreement, agreement or document or certificate executed in connection herewith (including, without limitation, the certificates certificate to be delivered pursuant to Sections 5.1(b) and 5.1(hSection 5.l(a) hereof); (ii) environmental or health and safety matters arising out of the use or operation of the Company's properties (whether owned or leased) prior to the Closing (whether or not disclosed to Buyer at or prior to the Closing); (iii) any Taxes owed by the Company or the Subsidiary with respect to any period all taxable periods ending on or prior to the Closing or with respect to partial or prorated Date and the pre-Closing portion of all taxable periods up to beginning before and including ending after the Closing Date or with respect to or Date; and (iv) any claim by Xxxxxxx X. Xxxxxxx ("Xxxxxxx") and any matter arising out of the transfer Xxxxxxx'x ownership and/or sale of any securities of the Owned Real Property pursuant to this Agreement; or (iii) any claim, litigation proceeding or investigation with respect to which the principal event or events giving rise thereto occurred prior to the Closing (excluding, however, the matter described on Schedule 3.16 hereto)Company; provided, however, that, notwithstanding the foregoing, following the Closing, the liability of the Sellers to indemnify and hold harmless the Buyer Indemnified Parties for Indemnified Costs shall terminate at the expiration of the relevant survival period provided by Section 8.8, and shall be subject to the following limitations: (a) : With respect to the Sellers' obligation to indemnify and hold harmless the Indemnified Parties for Indemnified Costs under clauses (iarising out Sections 7.1(i), (ii) and (iii) of the first sentence of this Section 7.1above, (i) the Sellers shall indemnify and hold harmless the Buyer Indemnified Parties for such all Indemnified Costs only if and to the extent after such Indemnified Costs exceed $100,000 250,000 (the "Basket Amount") in the aggregate (after whichaggregate, subject to the other limitations set forth in this Agreement, all such Indemnified Costs at which time only those amounts in excess of such $100,000 shall the Basket Amount may be recoverable), (ii) such Indemnified Costs for which the Buyer Indemnified Parties actually receive indemnification from the Sellers (other than any such indemnification for the breach of any representation or warranty in Section 3.17 hereof or pursuant to clause (ii) of the first sentence of this Section 7.1) shall not exceed $400,000 in the aggregate (the "Non-Tax Cap Amount"), and (iii) such Indemnified Costs for which the Buyer Indemnified Parties actually receive indemnification from the Sellers for the breach of any representation or warranty in Section 3.17 hereof or pursuant to clause (ii) of the first sentence of this Section 7.1 shall not exceed $1,000,000 in the aggregate (the "Tax Cap Amount")recovered; provided that the limitations set forth in clauses (i) and (ii) of this sentence foregoing limitation shall not apply to any Indemnified Costs that arise due to (1) any breach of a representation or warranty contained in any of Sections 3.13.1 (capitalization), 3.23.2 (no liens on shares) or 3.3 (other rights to acquire capital stock) (collectively, 3.3the "Basket Exclusions"), or any of the initial five sentences of Section 3.6, or due to (2) the actual fraud or any willful or intentional misrepresentation misconduct of any Seller. Seller or (b3) Section 7.1(iv) above. The Company Sellers shall remit be obligated to pay any amounts for indemnification based on the Basket Exclusions without regard to the Sellers any individual or aggregate amounts actually received by thereof and without regard to whether the Company from any governmental authority or other third party aggregate of all indemnification payments shall have exceeded, in respect the aggregate, the Basket Amount. The aggregate amount of Indemnified Costs for which the Company has previously been indemnified Sellers are obligated to indemnify and hold harmless the Indemnified Parties for Indemnified Costs arising out of Sections 7.1(i), (ii) and (iii) above shall be limited to the amount of $2,500,000 (the "Cap"); provided that the Cap shall not apply to any Indemnified Costs that arise due to (1) any breach of a representation or warranty contained in any of Sections 3.1 (capitalization), 3.2 (no liens on shares) or 3.3 (other rights to acquire capital stock), (2) the actual fraud or willful or intentional misconduct of any Seller or (3) Section 7.1(iv) above. Each of the Basket Amount and the Cap shall be applied without taking into account any qualifications or exceptions contained in any representation or warranty relating to materiality or material adverse effect. The obligation of each Seller to indemnify and hold harmless the Indemnified Parties from and against any and all Indemnified Costs arising out of or related to any of the Basket Exclusions (i) shall be several and not joint and (ii) shall only arise with respect to the Shares owned by such Seller immediately prior to the Closing. The obligation of each Seller to indemnify and hold harmless the Indemnified Parties from and against any and all Indemnified Costs arising out of or related to Section 7.1(iv) above (i) shall be joint and several for any and all Sellers pursuant owning at least 1,000 Shares immediately prior to this Section 7.1the Closing and (ii) shall be several and not joint for any and all Sellers owning less than 1,000 Shares immediately prior to the Closing.

Indemnification of Buyer and the Company. The Sellers jointly and severally agree Subject to the limitations set forth in Section 5.5 below, Seller agrees to indemnify and hold harmless Buyer (and, following the Closing, and the Company) , each of their subsidiaries and affiliates, and each officerof their respective officers, directordirectors, employee shareholders, employees and affiliate of Buyer (and each person who is an officer, director, employee or affiliate of the Company following the Closing) agents (collectively, the "“Buyer Indemnified Parties"”) from and against any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs, and expenses costs (including court costs and attorneys' fees and expenses incurred in investigating and preparing for any litigation or proceedingreasonable attorney’s fees) (collectively, "“Indemnified Costs"”) which that any of the Buyer Indemnified Parties may sustain, or to which any of the Buyer Indemnified Parties may be subjected, arising out of (i) any breach or default by any of the Sellers or (if committed prior to the Closing) the Company of or under any of the representationsof, warranties, covenants, conditions, agreements, or other provisions of this Agreement or any agreement, document or certificate executed in connection herewith (including, without limitation, the certificates to be delivered pursuant to Sections 5.1(b) and 5.1(h) hereof; (ii) any Taxes owed by the Company or the Subsidiary with respect to any period prior to the Closing or with respect to partial or prorated periods up to and including the Closing Date or with respect relating to or arising out of the transfer of the Owned Real Property pursuant to this Agreement; or (iii) any claim, litigation proceeding or investigation with respect to which the principal event or events giving rise thereto occurred prior to the Closing (excluding, however, the matter described on Schedule 3.16 hereto); provided, however, that, notwithstanding the foregoing, following the Closing, the liability of the Sellers to indemnify and hold harmless the Buyer Indemnified Parties for Indemnified Costs shall be subject to the following limitationsresulting from: (a) With respect to the Sellers' obligation to indemnify and hold harmless the Indemnified Parties for Indemnified Costs under clauses (i), (ii) and (iii) of the first sentence of this Section 7.1, (i) the Sellers shall indemnify and hold harmless the Buyer Indemnified Parties for such Indemnified Costs only if and to the extent such Indemnified Costs exceed $100,000 (the "Basket Amount") in the aggregate (after which, subject to the other limitations set forth in this Agreement, all such Indemnified Costs in excess of such $100,000 shall be recoverable), (ii) such Indemnified Costs for which the Buyer Indemnified Parties actually receive indemnification from the Sellers (other than any such indemnification for the breach of any representation or warranty in Section 3.17 hereof or pursuant to clause (ii) of the first sentence of this Section 7.1Seller set forth herein; (b) shall not exceed $400,000 in the aggregate (the "Non-Tax Cap Amount"), and (iii) such Indemnified Costs for which the Buyer Indemnified Parties actually receive indemnification from the Sellers for the any breach of any representation covenant or warranty in Section 3.17 hereof agreement of the Seller set forth herein; (c) any breach by Seller or Company of the Agreement and Plan of Reorganization; (d) [The information redacted herein constitutes sensitive and confidential information. This information has been omitted pursuant to clause (ii) a request for confidential treatment under Rule 24b-2 of the first sentence Securities Exchange Act of 1934, as amended. This information has been filed separately with the Securities and Exchange Commission.] (e) any Environmental, Health and Safety Liability relating to a period prior to the Closing Date, whether or not this Section 7.1 shall not exceed $1,000,000 in the aggregate (the "Tax Cap Amount"); provided that the limitations set forth in clauses (i) and (ii) of this sentence shall not apply to any constitutes a breach of a representation or warranty contained in any of Sections 3.1, 3.2, 3.3, or any of the initial five sentences Seller; (f) any claims or liabilities under the Company’s lease of the Stafford, Texas facility or other liabilities to be assume by Seller pursuant to Section 3.62.4; (g) any product warranty claims asserted on or after the first anniversary date of Closing, or due with respect to products sold prior to the actual fraud or any intentional misrepresentation of any Seller. Closing and (bi) The Company shall remit to the Sellers any amounts actually received by the Company from any governmental authority or other third party in respect of Indemnified Costs for which the Company has previously established a reserve, which products have been indemnified set forth on Schedule 5.2(g) hereto or (ii) for which the Company has not established a reserve, unless Seller demonstrates that such claim is not valid (with respect to which the Company will perform such warranty obligations, according to its current practice and at its standard repair costs, and Buyer shall have a claim hereunder for 110% of the Company’s costs thereof); and (h) any claims, proceedings, actions or investigations made or brought by third parties based on or arising from (i) any of the Sellers pursuant foregoing or any allegation thereof, or (ii) any act, omission or state of fact relating to this Section 7.1the Company or any subsidiary and occurring or in existence prior to the Closing Date, except to the extent accrued as a liability on the Balance Sheet or as otherwise set forth in the Disclosure Schedules.

Indemnification of Buyer and the Company. (a) The Sellers jointly and severally agree Sellers, severally, based on the percentage of the Purchase Price attributable to indemnify each Seller as set forth on Schedule 1.4, shall indemnify, defend and hold harmless Buyer (and, following the Closingeach of Buyer, the Company) , any corporation, partnership, limited liability company or other legal entity affiliated with Buyer, and each officerany stockholder, partner, member, director, employee and affiliate of Buyer (and each person who is an officer, director, employee or affiliate agent of any of them, from and against, and waive any claim for contribution or indemnity from such parties with respect to, all claims, damages, liabilities, losses, costs, deficiencies or expenses, including reasonable attorneys’ fees, interest and penalties in connection therewith and including those incurred in connection with enforcement of this Article VII (“Claims”), which may be sustained by such indemnified party and which arise from: (1) the breach of any agreement, covenant, representation, warranty, or other obligation of the Company following the Closing) (collectively, the "Buyer Indemnified Parties") from and against any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs, and expenses (including court costs and attorneys' fees and expenses made or incurred in investigating and preparing for any litigation under or proceeding) (collectively, "Indemnified Costs") which any of the Buyer Indemnified Parties may sustain, or pursuant to which any of the Buyer Indemnified Parties may be subjected, arising out of (i) any breach or default by any of the Sellers or (if committed prior to the Closing) the Company of or under any of the representations, warranties, covenants, conditions, agreements, or other provisions of this Agreement or any agreement, document or certificate executed in connection herewith (including, without limitation, the certificates to be delivered pursuant to Sections 5.1(b) hereto and 5.1(h) identified in Article VI hereof; or (ii2) any Taxes owed by the liability of the Company or the Subsidiary Buyer, if any, resulting from the assertion by any party of any right or claim to an equity interest in the Company other than the right to receive the Purchase Price pursuant to the terms of this Agreement in the amounts set forth on Schedule 1.4 hereto or the right to receive the Option Consideration. (b) Each Seller, as to such Seller and not as to any other Seller, shall indemnify, defend and hold harmless each of Buyer, the Company, any corporation, partnership, limited liability company or other legal entity affiliated with Buyer, and any stockholder, partner, member, director, officer, employee or agent of any of them, from and against, and waive any claim for contribution or indemnity from such parties with respect to, all Claims which may be sustained by such indemnified party and which arise from the breach of any agreement, covenant, representation, warranty, or other obligation of such Seller made or incurred under or pursuant to this Agreement or any period prior document delivered pursuant hereto and identified in Article VI hereof. (c) The indemnification permitted pursuant to this Section 7.2 is intended to induce Buyer to enter into this Agreement and to provide a means of compensating the Closing indemnified parties for Claims incurred after the Closing. Therefore, the Sellers hereby agree that they shall have no rights of any nature whatsoever against the Company, whether by contribution or otherwise, and forever release the Company from any and all Claims in connection with respect to partial or prorated periods up to and including the Closing Date or with respect to or arising out of the transfer assertion by a claimant of the Owned Real Property pursuant a right to this Agreement; or indemnification (iii) any claim, litigation proceeding or investigation with respect other than statutory rights to which the principal event or events giving rise thereto occurred prior to the Closing (excluding, however, the matter described on Schedule 3.16 hereto); provided, however, that, notwithstanding the foregoing, following the Closing, the liability of the Sellers to indemnify and hold harmless the Buyer Indemnified Parties for Indemnified Costs shall be subject to the following limitations: (a) With respect to the Sellers' obligation to indemnify and hold harmless the Indemnified Parties for Indemnified Costs under clauses (i), (ii) and (iii) of the first sentence of this Section 7.1, (i) the Sellers shall indemnify and hold harmless the Buyer Indemnified Parties for such Indemnified Costs only if and to the extent such Indemnified Costs exceed $100,000 (the "Basket Amount") in the aggregate (after which, subject to the other limitations set forth in this Agreement, all such Indemnified Costs in excess of such $100,000 shall be recoverable), (ii) such Indemnified Costs for which the Buyer Indemnified Parties actually receive indemnification from the Sellers (other than any such indemnification for the breach of any representation Company in their capacities as officers or warranty in Section 3.17 hereof or pursuant to clause (ii) directors of the first sentence of Company). Buyer agrees that all Claims by Buyer and its Affiliates for indemnification under this Section 7.1) Agreement shall not exceed $400,000 in the aggregate (the "Non-Tax Cap Amount"), and (iii) such Indemnified Costs for which the Buyer Indemnified Parties actually receive indemnification from the Sellers for the breach of any representation or warranty in Section 3.17 hereof or pursuant to clause (ii) of the first sentence of this Section 7.1 shall not exceed $1,000,000 in the aggregate (the "Tax Cap Amount"); provided that the limitations set forth in clauses (i) and (ii) of this sentence shall not apply to any breach of a representation or warranty contained in any of Sections 3.1, 3.2, 3.3, or any of the initial five sentences of Section 3.6, or due to the actual fraud or any intentional misrepresentation of any Seller. (b) The Company shall remit to the Sellers any amounts actually received by the Company from any governmental authority or other third party in respect of Indemnified Costs for which the Company has previously been indemnified by be made against the Sellers pursuant to this Section 7.17.2, and shall not be made against the Company or any of its officers and directors in their capacity as such.