Common use of Indemnification of Buyer Indemnified Parties Clause in Contracts

Indemnification of Buyer Indemnified Parties. Subject to the limitations set forth in Section 8.3 below, from and after the Effective Time, each Company Holder will severally (in accordance with each Company Holder’s Pro Rata Percentage), but not jointly, indemnify, defend and hold harmless the Buyer Indemnified Parties from and against any and all Damages incurred by such Person (such Damages, “Indemnifiable Damages”) resulting from: (a) any breach of any representation or warranty made by the Company in this Agreement or in any other certificate executed in connection with this Agreement by the Company as of the Closing; (b) any breach or failure to perform on or prior to the Closing any covenant or agreement herein by the Company that is required to be performed on or prior to the Closing; (c) any inaccuracy contained in the Allocation Schedule as of the Closing; (d) any payments made with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares; (e) the VAT Reclaim Amount to the extent Buyer or the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) shall not have received a payment of the VAT Reclaim Amount from the applicable Governmental Entity prior to the release of the Escrow Fund; and (f) any Taxes of the Company with respect to any Pre-Closing Tax Period; Taxes for which the Company (or any predecessor of the Company) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date; and Taxes imposed on or payable by third parties with respect to which the Company has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the Closing.

Indemnification of Buyer Indemnified Parties. Subject to Following the limitations set forth in Section 8.3 belowClosing, from and after the Effective Time, each Company Holder Seller will severally (in accordance with each Company Holder’s Pro Rata Percentage), but not jointly, indemnify, defend defend, and hold harmless Buyer, the Rangeland Entities and their respective officers, members, partners, directors, employees, Subsidiaries and Affiliates (the “Buyer Indemnified Parties Parties”) from and against any and all Damages incurred by such Person damages, losses, Liabilities, claims and expenses (such Damagesincluding reasonable attorneys’ fees) (collectively, “Indemnifiable Damages”) resulting from: arising, directly or indirectly, from or in connection with any one or more of the following: (ai) any the breach of any representation or warranty made by the Company Seller in this Agreement as of the date hereof or as of the Closing Date as if made as of the Closing Date (other than any representation or warranty made as of a specific date), or in any other closing certificate executed in connection with delivered pursuant to this Agreement by Agreement; (ii) the Company as breach of the Closing; (b) any breach or failure to perform on or prior to the Closing any covenant or agreement herein by the Company that is required made or to be performed on or prior by Seller pursuant to the Closing; this Agreement; and (ciii) any inaccuracy contained in the Allocation Schedule as of the Closing; Seller Taxes; provided, however, that (dx) any payments made with respect to Dissenting Shares Seller shall only be liable under this Section 7.3(a) to the extent that the aggregate amount of Damages from all such paymentsbreaches exceeds $3,750,000 (the “Deductible Amount”) (and only a breach that individually exceeds $50,000 shall be included in such aggregate calculation), in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares; (e) the VAT Reclaim Amount and then only to the extent of such excess, and (y) in no event shall Seller’s aggregate liability to the Buyer or Indemnified Parties under this Section 7.3(a) exceed $42,500,000 (the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) “Cap Amount”). Notwithstanding the foregoing, the Deductible Amount and the Cap Amount shall not have received a payment apply to (A) breaches of the VAT Reclaim Amount from the applicable Governmental Entity prior Seller Fundamental Representations, (B) breaches of any covenants or agreements made by or to be performed by Seller pursuant to this Agreement or (C) any Seller Taxes; provided, however, that in no event shall Seller’s aggregate liability to the release Buyer Indemnified Parties for breach of any of the Escrow Fund; and (f) Seller Fundamental Representations or breach of any Taxes covenant or agreement made or to be performed by Seller pursuant to this Agreement exceed the amount of the Company with respect to any Pre-Closing Tax Period; Taxes for which the Company (or any predecessor of the Company) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date; and Taxes imposed on or payable by third parties with respect to which the Company has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the ClosingFinal Purchase Price.

Indemnification of Buyer Indemnified Parties. Subject to the applicable limitations set forth in Section 8.3 belowof this Article 10, the ESOT shall indemnify and hold the Buyer and its Affiliates (subsequent to the Closing, including the Company and its Subsidiaries) and each of their respective directors, officers, managers, employees, agents and other representatives (the “Buyer Indemnified Parties”) harmless from and after the Effective Timeagainst, each Company Holder will severally (in accordance with each Company Holder’s Pro Rata Percentage), but not jointly, indemnify, defend and hold harmless compensate and reimburse the Buyer Indemnified Parties from for, all claims, Liabilities, obligations, costs, damages, losses and against any expenses (including reasonable attorneys’ fees and all Damages incurred by such Person (such Damages, “Indemnifiable Damages”costs of investigation) resulting from: (a) any breach of any representation nature (and whether direct or warranty made by the Company in this Agreement or in any other certificate executed in connection with this Agreement by the Company as of the Closing; a third party claim) (bcollectively, “Losses”), in any way arising out of, relating to or based on (i) any breach or inaccuracy of any of the representations or warranties set forth in Article 2, Article 3, or the certificate referenced in Section 8.1(c), or any third party claim arising out of or relating to any such breach or inaccuracy or any third party claim alleging facts that, if true, would constitute such a breach or inaccuracy of a representation or warranty set forth in Article 2, Article 3, or the certificate referenced in Section 8.1(c); (ii) any breach or violation of the covenants or agreements of the Company or its Subsidiaries set forth in this Agreement required to be performed prior to or at the Closing; (iii) any breach or violation of the covenants or agreements of the ESOT set forth in this Agreement; (iv) the failure of any portion of the Closing Company Indebtedness, Closing ESOT Indebtedness, the Transaction Expenses to perform on be paid at or prior to the Closing any covenant or agreement herein by and/or deducted from the Company that is required to be performed on or prior to the Closing; Closing Purchase Price; (cv) any inaccuracy contained in the Allocation Schedule as claim by any Person, seeking to assert, or based upon (A) ownership or rights to ownership of the Closing; (d) any payments made with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares; (e) the VAT Reclaim Amount to the extent Buyer or the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) shall not have received a payment of the VAT Reclaim Amount from the applicable Governmental Entity prior to the release of the Escrow Fund; and (f) any Taxes equity of the Company with respect or any Subsidiary or (B) any rights under the governance instruments of the Company or any of its Subsidiaries related to any Prepre-Closing Tax Periodclaims; Taxes for which (vi) Fraud by or on behalf of the Company (or any predecessor a Subsidiary of the CompanyCompany or the ESOT; (vii) is held liable under Treasury Regulations Section 1.1502-6 any Indemnified Taxes; or (or viii) any similar provision of state, local or foreign Law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time the matters set forth on or before the Closing Date; and Taxes imposed on or payable by third parties with respect to which the Company has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the ClosingSchedule 10.2(a).

Indemnification of Buyer Indemnified Parties. Subject (a) From and after the Closing, subject to the limitations set forth in Section 8.3 belowthis ARTICLE VII, from and after the Effective Time, each Company Holder will severally (in accordance with each Company Holder’s Pro Rata Percentage), but not jointly, indemnify, defend Seller hereby agrees to indemnify and hold harmless the Buyer Indemnified Parties from and against any and all Damages Losses sustained or incurred by such Person (such Damagesany Buyer Indemnified Party, “Indemnifiable Damages”) resulting from: (ai) any breach of any a representation or warranty made by the Company Seller in ARTICLE III or ARTICLE IV; (ii) the breach of any covenant made by the Seller in this Agreement Agreement; (iii) any Indebtedness of any Target Group Member existing prior to the Effective Time; (iv) any Taxes which may be payable by any Target Group Member for any Pre-Closing Period; (v) any Transaction Expenses; (vi) any Action, instituted at any time prior to the fifth (5th) anniversary of the Closing Date, alleging that, prior to the Closing Date, any Target Group Member or any officers, directors, agents or employees of any Target Group Member have, directly or indirectly: (A) made any contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment to any person, public or private, regardless of form, whether in money, property or services, to obtain favorable treatment in securing business, to pay for favorable treatment for business which has been secured, to pay for special concessions or for concessions previously or otherwise, in violation of Foreign Corrupt Practices Act of 1977, as amended or any similar Law; or (B) engaged in collusive or otherwise unlawful bidding practices; (vii) any Losses arising from the failure of the Companies to file U.S. Department of Treasury Form 5500 with respect to the group welfare plans of the Companies for the 2013 plan year; (viii) any Losses arising from the failure of Rough Brothers Asia, LLC to obtain approval for a delay in the completion of the contribution to the capital of Rough Brothers Greenhouse Manufacturing (Shanghai) Co., Ltd. from the Chinese Ministry of Commerce or its local equivalent; (ix) any Losses arising from the fact that Renusol GmbH was a wholly owned subsidiary of Centrosolar AG; and (x) any Losses arising from that certain patent infringement litigation commenced against Renusol GmbH on or about June 5, 2015 and relating to the alleged infringement by a product incorporated by Renusol GmbH into its mounting systems (such product being the “Subject Product”) of rights arising under a German patent held by the plaintiff in such patent litigation (hereinafter the “German Plaintiff”) together with any Losses which may arise in the future as a result of any Action which is based on allegations that the sale by any of the Companies, in any jurisdiction other certificate executed in connection with this Agreement by than Germany, of mounting systems containing the Company as Subject Product, violates the patent rights of the Closing;German Plaintiff or its assignee in any such jurisdiction. (b) any breach or failure to perform on or prior Notwithstanding anything provided in this Agreement to the Closing contrary, the indemnification obligations of the Seller pursuant to this Section 7.2 shall be limited as follows: (i) the Seller shall not be liable under this Agreement (including this ARTICLE VII) with respect to any covenant Losses arising out of matters disclosed, provided for, accrued or agreement herein by reserved for in the Company that is required to be performed on Financial Statements, Closing Balance Sheet or prior to the ClosingNet Non-Cash Working Capital Calculation; (cii) no Losses shall be payable under Section 7.2(a)(i) (other than Losses arising from a breach of any inaccuracy contained Fundamental Representations) until the total of all such Losses exceeds an amount equal to the Seller Deductible, and then only the amounts in excess of an amount equal to the Allocation Schedule as of the ClosingSeller Deductible shall be payable; (diii) any payments made with respect to Dissenting Shares no Losses shall be payable under Section 7.2(a)(x) until the total of all such Losses under Section 7.2(a)(x) exceeds $40,000 and then only the amount of such Losses in excess of $40,000 shall be payable (which Losses shall not be subject to the extent that such payments, limitation in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares7.2(b)(ii) above); (eiv) the VAT Reclaim Amount Seller’s aggregate liability for all indemnification under Section 7.2(a)(i) (excluding liability for indemnification for Losses arising from a breach of any Fundamental Representations) and Section 7.2(a)(x) shall be limited to, and shall not exceed, an amount equal to the extent Buyer or the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) shall not have received a payment of the VAT Reclaim Amount from the applicable Governmental Entity prior to the release of the Escrow FundSeller Cap; and (fv) any Taxes of the Company with respect Seller Deductible and the Seller Cap shall not apply to any Pre-Closing Tax Period; Taxes for which the Company (or any predecessor of the Company) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date; and Taxes imposed on or payable by third parties with respect to which the Company has an Seller’s obligation to indemnify such third party pursuant to and hold the Buyer Indemnified Parties harmless from and against Losses arising as a transaction consummated on result of a breach of any Fundamental Representations or prior to as a result of the Closingmatters described in Sections 7.2(a)(ii), (iii), (iv), (v), (vi), (vii), (viii), and (ix).

Indemnification of Buyer Indemnified Parties. Subject to Following the limitations set forth in Section 8.3 belowClosing, from and after the Effective Time, each Company Holder Seller will severally (in accordance with each Company Holder’s Pro Rata Percentage), but not jointly, indemnify, defend defend, and hold harmless Buyer, the Elk City Entities and their officers, members, partners, directors, employees, Subsidiaries and Affiliates (the “Buyer Indemnified Parties Parties”) from and against any and all Damages incurred by such Person damages, losses, Liabilities, claims and expenses (such Damagesincluding reasonable attorneys’ fees) (collectively, “Indemnifiable Damages”) resulting from: arising, directly or indirectly, from or in connection with any one or more of the following: (ai) any the breach of any representation or warranty made by the Company Seller in this Agreement or in any other closing certificate executed in connection with delivered pursuant to this Agreement (without giving effect to any Materiality Qualifier, which shall be disregarded for purposes of this Section 7.3(a)(i)); (ii) the breach of any covenant or agreement made or to be performed by Seller pursuant to this Agreement; (iii) fines, penalties and sanctions asserted, imposed or levied by any Governmental Authority arising out of or related to the Company as ownership, use, maintenance or operation of the Closing; (b) any breach Elk City Entities, Elk City Business or failure to perform on or the Assets prior to the Closing Date, (iv) the Excluded Assets; (v) the Employee Liabilities; or (vi) the matters set forth in Item 1 of Schedule 3.8; provided, however, that (x) Seller shall only be liable under this Section 7.3(a)(i) to the extent that the aggregate amount of Damages exceeds $13,640,000 (the “Deductible Amount”), and then only to the extent of such excess, and (y) in no event shall Seller’s aggregate liability to the Buyer Indemnified Parties under this Section 7.3(a)(i) exceed $161,027,778 (the “Cap Amount”). Notwithstanding the foregoing, the Deductible Amount and the Cap Amount shall not apply to (A) breaches of the Seller Fundamental Representations, (B) breaches of any covenants or agreements made or to be performed by Seller pursuant to this Agreement or (C) breaches of the representations and warranties of Seller set forth in Section 3.13 (Taxes); provided, however, that in no event shall Seller’s aggregate liability to the Buyer Indemnified Parties for breach of any of the Seller Fundamental Representations or breach of any covenant or agreement herein by the Company that is required made or to be performed on or prior by Seller pursuant to this Agreement exceed the Closing; (c) any inaccuracy contained in the Allocation Schedule as amount of the Closing; (d) any payments made with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares; (e) the VAT Reclaim Amount to the extent Buyer or the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) shall not have received a payment of the VAT Reclaim Amount from the applicable Governmental Entity prior to the release of the Escrow Fund; and (f) any Taxes of the Company with respect to any Pre-Closing Tax Period; Taxes for which the Company (or any predecessor of the Company) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date; and Taxes imposed on or payable by third parties with respect to which the Company has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the ClosingFinal Purchase Price.

Indemnification of Buyer Indemnified Parties. Subject to the limitations set forth in Section 8.3 below, from Effective at and after the Effective TimeClosing, Seller hereby indemnifies Buyer and its Affiliates (including after the Closing, the Company) and their respective officers, directors, managers, employees, agents, successors and assignees (collectively, the “Buyer Indemnified Parties”) against, and agrees to hold each Company Holder will severally of them harmless from, any and all Damages (in accordance with each Company Holder’s Pro Rata Percentage), but not jointly, indemnify, defend and hold harmless whether involving a Third-Party Claim or a claim solely between the parties hereto) incurred or suffered by the Buyer Indemnified Parties from and against (regardless of whether such Damages arise as a result of the negligence, strict liability or any and all Damages incurred by such Person (such Damages, “Indemnifiable Damages”other Liability under any theory of law or equity of any Buyer Indemnified Party) arising out of or resulting from: (ai) any inaccuracy, misrepresentation or breach of any representation or warranty made by the Company of Seller in this Agreement or in any certificate or other certificate executed in connection with this Agreement by the Company as of the Closingwriting delivered pursuant hereto (determined without regard to any qualification or exception contained therein relating to materiality or Material Adverse Effect or any similar qualification or standard) (“Seller Warranty Breach”); (bii) any breach or failure to perform on or prior to the Closing of any covenant or agreement herein by of Seller or the Company that is required to be performed on in this Agreement (or any breach of any covenant or agreement of Seller or the Company in this Agreement prior to the Closing); (ciii) any inaccuracy contained in the Allocation Schedule as of the ClosingExcluded Liabilities; (div) any payments made with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares; (e) the VAT Reclaim Amount to the extent Buyer or the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) shall not have received a payment of the VAT Reclaim Amount from the applicable Governmental Entity prior to the release of the Escrow FundCovered Tax; and (fv) the Restructuring, any Taxes element thereof or any action taken by, or transaction entered into or participated in by, the Company, Seller or any of their respective Affiliates in relation to or connection with the Restructuring, constituting a breach of Applicable Law (including, without limitation, section 82 of the Company Companies Act (unlawful financial assistance) and section 117 of the Companies Act (unlawful distributions)); provided that Seller shall not be liable for any Seller Warranty Breach (other than in respect of a breach of any Seller Fundamental Representations) unless the aggregate amount of Damages with respect to any Pre-Closing Tax Period; Taxes for which the Company (or any predecessor of the Company) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of stateall such Seller Warranty Breaches exceeds $1,450,000, local or foreign Law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date; and Taxes imposed on or payable by third parties Seller’s maximum liability with respect to which the Company has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the ClosingSeller Warranty Breaches shall not exceed $14,500,000.

Indemnification of Buyer Indemnified Parties. (a) Subject to the limitations set forth in this Section 8.3 below6.3, from and after the Effective TimeClosing Date, each Company Holder will severally Buyer, Buyer’s Parent, the Surviving Corporation and their respective directors, officers, employees, agents, representatives, Affiliates, successor and assigns (in accordance with each Company Holder’s collectively “Buyer Indemnified Parties”) shall be indemnified and held harmless by, and shall be entitled to payment and reimbursement from, the Shareholders, on a Pro Rata Percentage)Basis and, but not jointlyexcept with respect to the Principal Shareholders, indemnifysolely and exclusively from the Indemnity Escrow, defend and hold harmless with respect to the amount of any Losses suffered, incurred or paid by any Buyer Indemnified Parties from and against any and all Damages incurred Party, by such Person reason of, in whole or in part, or arising from, in whole or in part, (such Damages, “Indemnifiable Damages”i) resulting from: (aA) any breach by any Principal Shareholder of any covenant, agreement or obligation in this Agreement (whether to be performed before, on or after the Closing Date) or by the Company of any covenant, agreement or obligation in this Agreement to be performed on or before the Closing Date, or (B) any misrepresentation or inaccuracy in, or breach of, any representation or warranty made by the Company or any Principal Shareholder in this Agreement or the certificates delivered pursuant to Section 7.2.1, (ii) in respect of Section 2.6.2.5(b)(i) with respect to the Working Capital Indemnity Amount, (iii) ESOP Claims and (iv) all Dissenters’ Rights Claims and Dissenters’ Rights Losses suffered, incurred or paid by any other certificate executed Buyer Indemnified Party. (b) Notwithstanding anything herein to the contrary, in connection with determining if there is a misrepresentation or inaccuracy in, or a breach of, a representation or warranty in this Agreement by the Company or any Principal Shareholder or a certificate given pursuant to Section 7.2.1, each such representation or warranty shall read as if (i) made by such Buyer Indemnifying Party and (ii) all Materiality Qualifications contained in any such representation or warranty shall be ignored. If there is a breach of Section 3.29, Buyer Indemnified Parties shall be entitled to indemnification for the Losses arising from the breaches of the Closing; (b) any individual representations and warranties contributing to such breach or failure to perform on or prior to the Closing any covenant or agreement herein by the Company that is required to be performed on or prior to the Closing; (c) any inaccuracy contained in the Allocation Schedule as of the Closing; (d) any payments made with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares; (e) the VAT Reclaim Amount to the extent Buyer or the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) 3.29 and shall not have received a payment also be entitled to indemnification for such breach of the VAT Reclaim Amount from the applicable Governmental Entity prior to the release of the Escrow Fund; and (f) any Taxes of the Company with respect to any Pre-Closing Tax Period; Taxes for which the Company (or any predecessor of the Company) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date; and Taxes imposed on or payable by third parties with respect to which the Company has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the Closing3.29.

Indemnification of Buyer Indemnified Parties. 10.2.1 Subject to the limitations set forth in Section 8.3 belowthis Article 10, from and after the Effective TimeClosing, each Company Holder will severally (in accordance with each Company Holder’s Pro Rata Percentage), but not jointly, indemnify, defend the Seller agrees to indemnify and hold harmless the Buyer Indemnified Parties from and against any and all Damages Losses suffered, sustained or incurred by such Person (such Damages, “Indemnifiable Damages”) any Buyer Indemnified Party resulting fromfrom or arising in connection with: (a) any breach of any representation or warranty made by the Seller or any Group Company set forth in this Agreement or in any other certificate executed in connection with this Agreement by the Company as of the ClosingAgreement; (b) any breach or failure to perform on or prior to the Closing nonperformance of any covenant or agreement herein made by the Seller in this Agreement or any breach or nonperformance of any covenant made by any Group Company that is required to be performed on or in this Agreement and which requires performance prior to the Closing; (c) any inaccuracy contained Closing Debt (to the extent not included in the Allocation Schedule as calculation of the ClosingClosing Consideration); (d) any payments made with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares; (e) the VAT Reclaim Amount to the extent Buyer or the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) shall not have received a payment of the VAT Reclaim Amount from the applicable Governmental Entity prior to the release of the Escrow Fund; and (fi) any Income Taxes of the Company with respect to Group Companies for any Pre-Closing Tax Period; Period (including any and all Income Taxes for of any member of an affiliated, consolidated, combined or unitary group of which any Group Company is or was treated as a member prior to the Company (Closing Date, or any predecessor of on the Company) is held liable under Closing Date immediately prior to the Closing, including pursuant to Treasury Regulations Section 1.1502-6 (or any analogous or similar provision of state, local or foreign LawLegal Requirement) and (ii) any Income Taxes of the Seller (other than Transfer Taxes governed by reason Section 7.12.8); and (e) any costs or expenses, including fees and disbursements of such entity being included counsel, financial advisors and accountants, incurred in any consolidatedconnection with this Agreement, affiliatedor the transactions contemplated hereby, combined or unitary group at any time on or before incurred by the Closing Date; and Taxes imposed on or payable by third parties with respect to which the Company has an obligation to indemnify such third party pursuant to a transaction consummated on or Group Companies prior to the ClosingClosing and which are not paid by the Seller or one of its Affiliates (other than a Group Company). 10.2.2 (i) The Seller shall not be liable to the Buyer Indemnified Parties pursuant to Section 10.2.1(a) (other than in respect of any breach of any Seller Fundamental Representation or in the case of Fraud) for any Loss in respect of the breach of any representation and warranty unless the amount of such Loss exceeds $20,000, (ii) the Seller shall not be liable to the Buyer Indemnified Parties pursuant to Section 10.2.1(a) (other than in respect of any breach of any Seller Fundamental Representation or in the case of Fraud) unless and until the total of all such Losses exceeds the Threshold, after which the Buyer Indemnified Parties shall be entitled to recover such Losses only to the extent they exceed the Threshold, and (iii) in no event shall the aggregate amount of all payments made by the Seller in satisfaction of Claims for indemnification pursuant to Section 10.2.1(a) (other than in respect of any breach of any Seller Fundamental Representation or in the case of Fraud) exceed the General Indemnity Cap. 10.2.3 Notwithstanding anything herein to the contrary, absent Fraud, the maximum aggregate Liability of the Seller under this Section 10.2 shall not exceed the Purchase Price.

Indemnification of Buyer Indemnified Parties. Subject After the Closing and subject to the limitations and provisions set forth in Section 8.3 9.04, Section 9.07 and Section 9.08 below, from the General Escrow Amount and after the Effective TimeEnvironmental Escrow Amount, each Company Holder will severally (in accordance with each Company Holder’s Pro Rata Percentage)as applicable, but not jointly, shall be available and may be used to indemnify, defend and hold harmless Buyer, Newco and the Surviving Corporation and each of their respective Subsidiaries, officers, directors, managers, employees, agents, shareholders, members, successors, Affiliates and assigns (each individually, a “Buyer Indemnified Party” and collectively, the “Buyer Indemnified Parties”) from and against any Losses that the Buyer Indemnified Parties from and against any and all Damages incurred suffer, sustain or become subject to as a result of or arising out of or by such Person (such Damages, “Indemnifiable Damages”) resulting fromvirtue of: (a) any inaccuracy in any of the representations or breach of any representation of the warranties contained in Article III, or warranty made in any certificates or schedules delivered by the Company in pursuant to this Agreement Agreement, without regard to any materiality or in any other certificate executed in connection with this Agreement by the Company as of the ClosingMaterial Adverse Effect qualification contained therein; (b) any breach of, or failure to perform on perform, any agreement or prior covenant of the Company or the Shareholders Representative contained in this Agreement; or (c) without being limited by subsections (a) or (b) of this Section 9.01 or by Section 9.08 (and without regard to the fact that any one or more of the items referred to in this subsection (c) may be disclosed on the Disclosure Schedules or in any documents included or referred to therein or may be otherwise known to the Buyer at the date of this Agreement or on the Closing Date), any: (i) claim by an applicable Authority, which claim is not the result of a voluntary action by Buyer or any covenant Buyer Indemnified Party designed or agreement herein intended to produce a claim from the applicable Authority, of non-compliance with Environmental Laws by the Company or any of its Subsidiaries or any of the respective properties owned, leased or operated by the Company or its Subsidiaries at any time prior to Closing for damages as a result thereof; (ii) Liabilities relating to conditions existing as of the Closing Date incurred by any Buyer Indemnified Party, as required by an applicable Authority, which Liabilities are not the result of a voluntary action by Buyer or any Buyer Indemnified Party designed or intended to produce such Liabilities, to bring the assets, properties or business of the Company or any of its Subsidiaries into compliance with all applicable Environmental Laws as in effect as of the Closing; (iii) actions Buyer, in its reasonable discretion, deems necessary to either (A) cause all applicable Authorities to (1) discharge or release any and all obligations to perform RCRA Corrective Action at the U.S. Environmental Action Sites; or (2) grant or acknowledge in writing RCRA Corrective Action completion or inapplicability, or (B) perform RCRA Corrective Action and/or comparable voluntary remediation at the U.S. Environmental Action Sites, including whatever soil and/or groundwater investigations, removal actions, corrective actions, corrective measures or other work that is required by an applicable Authority in connection therewith, in each case, to be performed on the extent such RCRA Corrective Action closure or inapplicability shall not have been granted or acknowledged in writing by the applicable Authorities prior to the Closing; ; and (civ) any inaccuracy contained in the Allocation Schedule as of the Closing; (d) any payments made Environmental Claims with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares; (e) the VAT Reclaim Amount to the extent Buyer or the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) shall not have received a payment of the VAT Reclaim Amount from the applicable Governmental Entity prior to the release of the Escrow Fund; and (f) any Taxes of the Company with respect to any Pre-Closing Tax Period; Taxes for which the Company (or any predecessor of the Company) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date; and Taxes imposed on or payable by third parties with respect to which the Company has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the ClosingDutch Environmental Action Site.

Indemnification of Buyer Indemnified Parties. Subject to Upon the limitations set forth in Section 8.3 belowClosing, from and after the Effective Time, each Company Holder will severally (in accordance with each Company Holder’s Pro Rata Percentage), but not jointly, indemnify, defend Seller shall indemnify and hold harmless Buyer and its officers, directors, Affiliates, employees, agents and representatives (each, a “Buyer Indemnified Party” and collectively, the “Buyer Indemnified Parties”) from and against, and shall reimburse any Buyer’s Indemnified Persons for, all claims (including without limitation Third Party Claims), losses, liabilities, damages, diminutions in value, deficiencies, costs, interest, awards, amounts paid in settlement, judgments, penalties, and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any such expenses incurred in connection with investigating, defending against or settling any of the foregoing (hereinafter individually a “Loss” and collectively “Losses”), incurred or sustained by the Buyer Indemnified Parties Parties, or any of them, directly or indirectly, arising out of, related to, or resulting from and against any and all Damages incurred by such Person (such Damages, “Indemnifiable Damages”) resulting from: or based upon (a) any breach or inaccuracy of any representation or warranty made by the Company of Seller contained in this Agreement, any Related Agreement or in any certificate or other certificate executed in connection with instrument delivered pursuant to this Agreement by the Company as of the Closing; Agreement; (b) any breach or failure by Seller to perform or comply with any covenant or agreement contained in this Agreement, any Related Agreement or in any certificate or other instrument delivered pursuant to this Agreement; (c) an Excluded Liability or an Excluded Asset; (d) any Taxes of Seller; (e) any Liabilities with respect to any Seller Employee Plan(s), including Liabilities with respect to Seller contributions required by the terms of such Seller Employee Plan(s); (f) any infringement claims with respect to Seller or the Intellectual Property; (g) any claims by any holders of Seller Membership Equity, employees or independent contractors of Seller that relates to Seller Membership Equity, the allocation of the Purchase Price to such holder of Seller Membership Equity, or any facts, events, transactions, occurrences or actions or inactions of Seller arising on or prior to the Closing any covenant or agreement herein by the Company that is required to be performed on or prior to the Closing; Date; (ch) any inaccuracy contained failure by Seller to obtain a Required Consent; (i) failure by Seller to qualify or be licensed as a foreign corporation in the Allocation Schedule as of the Closing; any jurisdiction; and (dj) any payments made with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the consideration that otherwise would have been payable pursuant Section 2.7, as applicable, upon the exchange of such Dissenting Shares; (e) the VAT Reclaim Amount to the extent Buyer or the Surviving Corporation (after having used commercially reasonable efforts to receive such payment) shall not have received a payment of the VAT Reclaim Amount from the applicable Governmental Entity prior to the release of the Escrow Fund; and (f) any Taxes of the Company with respect to any Pre-Closing Tax Period; Taxes for which the Company (or any predecessor of the Company) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date; and Taxes imposed on or payable by third parties with respect to which the Company has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the ClosingReserved Liability.