Common use of Indemnification of Buyer Indemnified Parties Clause in Contracts

Indemnification of Buyer Indemnified Parties. From and after the Closing, each Indirect Member (severally and not jointly, in accordance with its Pro Rata Portion) shall indemnify and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (including the Company), and their respective direct and indirect partners, members, shareholders, directors, officers, employees and agents (collectively, the “Buyer Indemnified Parties”) from and against any and all Losses directly or indirectly arising out of, related to, accrued or incurred in connection with: (i) any breach of or inaccuracies in any representation or warranty made by the Members in this Agreement or in any certificate delivered to Buyer at the Closing (including the Members’ Closing Certificate) (other than Losses arising out of, related to, accrued or incurred in connection with any breach of or inaccuracies in any representations or warranties made in Article II by an Indirect Member, for which only the applicable Member responsible for such breach shall indemnify and hold harmless the Buyer Indemnified Parties); (ii) any breach or nonperformance of any covenant or obligation in this Agreement to be performed by the Members or the Company hereunder (other than Losses arising out of, related to, accrued or incurred in connection with any breach or nonperformance of any covenant or obligation in this Agreement to be performed by an Indirect Member in his, her, or its capacity as an Indirect Member, for which only the applicable Indirect Member responsible for such breach or nonperformance shall indemnify and hold harmless the Buyer Indemnified Parties); (iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any information, or breach of any representation or warranty, set forth in a Consideration Spreadsheet, including any failure to properly calculate the portion of the Purchase Price payable to any Member; (iv) any Member Transaction Expenses (to the extent not taken into account in determining the amount of the Closing Payment pursuant to Section 1.5(b)); (A) any fraud or intentional misrepresentation committed by the Company (other than at the direction of the Buyer), the Member Representative, the Members or any of its or their Representatives or Affiliates in connection with the Transactions or (B) any willful breach of this Agreement or any Transaction Documents committed by the Company (other than at the direction of the Buyer), the Member Representative, the Members or any of its or their Representatives or Affiliates; (vi) any Member-Related Claims; (vii) the fraud, gross negligence or willful misconduct prior to the Closing of the Company or any member of the Company’s senior management or, to the extent known to any member of the Company’s senior management, of its employees, agents or representatives; (viii) any indemnifiable loss of the Company based upon a Third Party Claim under the Pearl Acquisition Agreement, including as a result of or arising from (A) any breach of the Fundamental Representations (as defined in the Pearl Acquisition Agreement) of Pearl set forth therein or in the other Transaction Documents, Schedules or certificates delivered in connection therewith (each capitalized term as defined in the Pearl Acquisition Agreement), (B) any breach or nonfulfillment of any covenant or agreement on the part of Pearl under the Pearl Acquisition Agreement or the other Transaction Documents (as defined in the Pearl Acquisition Agreement), recognizing that the Company delayed the wind-down of Pearl and its subsidiaries, which is now addressed in Section 6.15, (C) the Excluded Liabilities (as defined in the Pearl Acquisition Agreement), or (D) all Taxes arising from the transactions contemplated by the Pearl Acquisition Agreement; and (ix) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Article IX.

Indemnification of Buyer Indemnified Parties. From Subject to the provisions set forth in this Article IX, from and after the Closing, each Indirect Member (severally 1) the Buyer Indemnified Parties shall be entitled to indemnification from the Indemnification Escrow Fund (and, to the extent provided in Section 9.4(i), the Chargeback Escrow Fund) and not jointly, in connection with the right of set off against the Contingent Consideration in accordance with its Pro Rata Portionthe terms of Section 9.8 and, (2) shall indemnify solely with respect to Direct Indemnification Matters and subject to the limitations set forth in this Article IX and Annex A, each of the Indemnifying Holders will severally (but not jointly and severally) in proportion to their Indemnifying Percentages as set forth on Annex A, indemnify, defend and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (including the Company), and their respective direct and indirect partners, members, shareholders, directors, officers, employees and agents (collectively, the “Buyer Indemnified Parties”) from and against Parties for, any and all Losses directly Damages that Buyer Indemnified Parties incur as a result of (and whether or indirectly arising out of, related to, accrued or incurred not in connection with:with any third-party claim): (ia) any the inaccuracy or breach of or inaccuracies in any representation or warranty made by Company contained in or made pursuant to Article V, including the Members Disclosure Schedules; (b) the non-compliance with or failure to perform any agreement or covenant of (i) prior to the Closing, any Company Group Member or (ii) Representative contained in or made pursuant to this Agreement or the Escrow Agreement; (c) any Liabilities relating to Chargebacks resulting from transactions entered into prior to the Effective Time in accordance with the terms (and subject to the limitations, including Section 2.14(e)) set forth in Section 2.14; (d) any and all Transaction Expenses and any Transaction Bonuses (except, in any certificate delivered to Buyer at the Closing (including the Members’ Closing Certificate) (other than Losses arising out ofsuch case, related to, accrued or incurred as otherwise taken into account in connection with the calculation of the Closing Merger Consideration or the Final Adjustment Calculation), or otherwise as a reduction in the amount payable to the equityholders of Company under Section 2.9; (e) any breach and all of or inaccuracies any Company Group Member’s Indebtedness (except, in any representations such case, as otherwise taken into account in connection with the calculation of the Closing Merger Consideration or warranties made in Article II by an Indirect Member, for which only the applicable Member responsible for such breach shall indemnify and hold harmless the Buyer Indemnified PartiesFinal Adjustment Calculation); (iif) any breach Indemnified Taxes; (g) any claim by any Securityholder related to the allocation or nonperformance payment of any covenant of the Merger Consideration, including any claims related to the Distribution Schedule or obligation in this Agreement to be performed other action brought by the Members or the Company hereunder (other than Losses arising out of, related to, accrued or incurred any Securityholder in connection with the Contemplated Transactions; (h) any breach dissenting shareholder or nonperformance appraisal rights of any covenant or obligation Stockholder under the DGCL (including any amounts paid to such Stockholders with respect to such demands) (except to the extent, in any such case, any payment by Buyer pursuant to this Agreement Section 9.2(h) represents a portion of the Merger Consideration that was required to be performed paid by an Indirect Member Buyer in his, her, accordance with Section 2.8 and was not paid by Buyer or its capacity the Exchange Agent as an Indirect Member, for which only the applicable Indirect Member responsible for result of the shares of Company Capital Stock held by any such breach or nonperformance shall indemnify and hold harmless the Buyer Indemnified PartiesStockholder being Dissenting Shares); (iiii) regardless any payments made by any Company Group Member to any D&O Indemnified Persons in respect of a claim covered by Section 7.5 in excess of the disclosure amounts recoverable under the D&O Insurance; (j) any claim asserted by any Optionholder or Warrantholder related to the Company EIP, the satisfaction of any matter set forth in the Disclosure Schedule, any inaccuracy in any informationCompany Options or Warrants, or breach allocation or payment of any representation or warranty, set forth in a Consideration Spreadsheet, including any failure to properly calculate the portion of the Purchase Price Merger Consideration payable to any Member; (iv) any Member Transaction Expenses (to the extent not taken into account in determining the amount of the Closing Payment pursuant to Section 1.5(b)); (A) any fraud or intentional misrepresentation committed by the Company (other than at the direction of the Buyer), the Member Representative, the Members or any of its or their Representatives or Affiliates in connection with the Transactions or (B) any willful breach of Warrantholder under this Agreement or any Transaction Documents committed by the Company (other than at the direction of the Buyer), the Member Representative, the Members or any of its or their Representatives or Affiliates; (vi) any Member-Related Claims; (vii) the fraud, gross negligence or willful misconduct prior to the Closing of the Company or any member of the Company’s senior management or, to the extent known to any member of the Company’s senior management, of its employees, agents or representatives; (viii) any indemnifiable loss of the Company based upon a Third Party Claim under the Pearl Acquisition Agreement, including as a result of or arising from (A) any breach of the Fundamental Representations (as defined in the Pearl Acquisition Agreement) of Pearl set forth therein or in the other Transaction Documents, Schedules or certificates delivered in connection therewith (each capitalized term as defined in the Pearl Acquisition Agreement), (B) any breach or nonfulfillment of any covenant or agreement on the part of Pearl under the Pearl Acquisition Agreement or the other Transaction Documents (as defined in the Pearl Acquisition Agreement), recognizing that the Company delayed the wind-down of Pearl and its subsidiaries, which is now addressed in Section 6.15, (C) the Excluded Liabilities (as defined in the Pearl Acquisition Agreement), or (D) all Taxes arising from the transactions contemplated by the Pearl Acquisition Agreement; and (ixk) any costs and expenses the matter set forth on Section 9.2(k) of enforcement to recover Losses due to any Buyer Indemnified Party under this Article IXthe Disclosure Schedules (the “Section 9.2(k) Matter”).

Indemnification of Buyer Indemnified Parties. From and after Upon the Closing, each Indirect Member (severally and not jointly, in accordance with its Pro Rata Portion) Seller shall indemnify and hold harmless Buyer Buyer, Parks, and its their respective officers, directors, Affiliates, employees, agents and Affiliates representatives (including the Company)each, a “Buyer Indemnified Party” and their respective direct and indirect partners, members, shareholders, directors, officers, employees and agents (collectively, the “Buyer Indemnified Parties”) from and against against, and shall reimburse any Seller’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 all Losses expenses, including reasonable attorneys’ and consultants’ fees and expenses (hereinafter individually a “Loss” and collectively “Losses”), incurred or sustained by the Buyer Indemnified Parties, or any of them, directly or indirectly indirectly, arising out of, related to, accrued or incurred in connection with: resulting from or based upon (ia) any breach or inaccuracy of or inaccuracies in any representation or warranty made by the Members of Seller contained in this Agreement, any Related Agreement or in any certificate or other instrument delivered pursuant to Buyer at the Closing this Agreement; (including the Members’ Closing Certificateb) (other than Losses arising out of, related to, accrued any failure by Seller to perform or incurred in connection comply with any breach of covenant contained in this Agreement, any Related Agreement or inaccuracies in any representations certificate or warranties made in Article II by an Indirect Member, for which only the applicable Member responsible for such breach shall indemnify and hold harmless the Buyer Indemnified Parties); (ii) any breach or nonperformance of any covenant or obligation in this Agreement to be performed by the Members or the Company hereunder (other than Losses arising out of, related to, accrued or incurred in connection with any breach or nonperformance of any covenant or obligation in this Agreement to be performed by an Indirect Member in his, her, or its capacity as an Indirect Member, for which only the applicable Indirect Member responsible for such breach or nonperformance shall indemnify and hold harmless the Buyer Indemnified Parties); (iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any information, or breach of any representation or warranty, set forth in a Consideration Spreadsheet, including any failure to properly calculate the portion of the Purchase Price payable to any Member; (iv) any Member Transaction Expenses (to the extent not taken into account in determining the amount of the Closing Payment instrument delivered pursuant to Section 1.5(b)); (A) any fraud or intentional misrepresentation committed by the Company (other than at the direction of the Buyer), the Member Representative, the Members or any of its or their Representatives or Affiliates in connection with the Transactions or (B) any willful breach of this Agreement or any Transaction Documents committed by the Company (other than at the direction of the Buyer), the Member Representative, the Members or any of its or their Representatives or Affiliates; (vi) any Member-Related Claims; (vii) the fraud, gross negligence or willful misconduct prior to the Closing of the Company or any member of the Company’s senior management or, to the extent known to any member of the Company’s senior management, of its employees, agents or representatives; (viii) any indemnifiable loss of the Company based upon a Third Party Claim under the Pearl Acquisition Agreement, including as a result of or arising from (A) any breach of the Fundamental Representations (as defined in the Pearl Acquisition Agreement) of Pearl set forth therein or in the other Transaction Documents, Schedules or certificates delivered in connection therewith (each capitalized term as defined in the Pearl Acquisition Agreement), (B) any breach or nonfulfillment of any covenant or agreement on the part of Pearl under the Pearl Acquisition Agreement or the other Transaction Documents (as defined in the Pearl Acquisition Agreement), recognizing that the Company delayed the wind-down of Pearl and its subsidiaries, which is now addressed in Section 6.15, (C) the Excluded Liabilities (as defined in the Pearl Acquisition Agreement), or (D) all Taxes arising from the transactions contemplated by the Pearl Acquisition Agreement; and (ixc) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Article IXan Excluded Liability or an Excluded Asset.