Common use of Indemnification of Buyers Clause in Contracts

Indemnification of Buyers. Subject to the provisions of this Section 4.10, the Company will indemnify and hold each Buyer and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Buyer (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Buyer Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Buyer Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Buyer Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Buyer Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Buyer Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Buyer Party may have with any such stockholder or any violations by such Buyer Party of state or federal securities laws or any conduct by such Buyer Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against any Buyer Party in respect of which indemnity may be sought pursuant to this Agreement, such Buyer Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Buyer Party. Any Buyer Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Buyer Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Buyer Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Buyer Party under this Agreement (y) for any settlement by a Buyer Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is primarily attributable to any Buyer Party’s breach of any of the representations, warranties, covenants or agreements made by such Buyer Party in this Agreement or in the other Transaction Documents or any conduct by a Buyer Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct or a violation of applicable securities laws. The indemnification required by this Section 4.10 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred; provided, that if any Buyer Party is finally judicially determined not to be entitled to indemnification or payment under this Section 4.10, such Buyer Party shall promptly reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Buyer Party against the Company or others and any liabilities the Company may be subject to pursuant to law.

Indemnification of Buyers. Subject Sellers hereby agree, jointly and severally, to the provisions of this Section 4.10, the Company will indemnify and hold each harmless Buyer and its directors, respective officers, shareholdersdirectors, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Buyer (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholdersemployees, agents, membersrepresentatives and affiliates from and against all claims, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (eachsuits, a “Buyer Party”) harmless from any and all lossesobligations, liabilities, obligations, claims, contingencies, damages, costs damages and expenses, including all judgmentsincluding, amounts paid in settlementswithout limitation, court costs and reasonable attorneys’ fees and costs of investigation that any such Buyer Party may suffer or incur as a result (“Losses”), based upon, arising out of or relating to resulting from: (a) any breach of any of the Sellers’ representations, warranties, covenants or agreements made by the Company in this Agreement contained herein or in the any Transaction Document or in any other Transaction Documents agreement or document delivered to any Buyer pursuant hereto; (b) any action instituted against obligation, contract or liability of any Seller not constituting one of the Buyer Parties Assumed Liabilities, including any obligation of any Seller with respect to the distribution of the proceeds of the sale of the Assets; (c) any and all claims of any third party for alleged liabilities or obligations of any Seller related to or occurring during the period prior to the Closing, other than those specifically assumed by Buyers hereunder as Assumed Liabilities; (d) any and all claims of any third party, including without limitation, any interest holder in any capacitySeller, related to the distribution of all or any portion of them or their respective Affiliates, the Purchase Price; (e) any and all claims brought by any stockholder employee of any Seller relating to periods prior to the Company who is not an Affiliate of such Buyer PartyClosing; and (f) any and all actions, with respect suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including without limitation, reasonable attorneys’ fees and expenses, incident to any of the transactions contemplated by foregoing or incurred in attempting to oppose the Transaction Documents (unless such action is solely based upon a material breach of such Buyer Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Buyer Party may have with any such stockholder or any violations by such Buyer Party of state or federal securities laws or any conduct by such Buyer Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against any Buyer Party in respect of which indemnity may be sought pursuant to this Agreement, such Buyer Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Buyer Party. Any Buyer Party shall have the right to employ separate counsel in any such action and participate in the defense imposition thereof, but the fees and expenses of such counsel shall be at the expense of such Buyer Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Buyer Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Buyer Party under this Agreement (y) for any settlement by a Buyer Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is primarily attributable to any Buyer Party’s breach of any of the representations, warranties, covenants or agreements made by such Buyer Party in this Agreement or in the other Transaction Documents or any conduct by a Buyer Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct or a violation of applicable securities laws. The indemnification required by enforcing this Section 4.10 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred; provided, that if any Buyer Party is finally judicially determined not to be entitled to indemnification or payment under this Section 4.10, such Buyer Party shall promptly reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Buyer Party against the Company or others and any liabilities the Company may be subject to pursuant to lawindemnity.

Indemnification of Buyers. Subject In consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition to all of the provisions of this Section 4.10Company’s other obligations under the Transaction Documents, the Company will shall defend, protect, indemnify and hold harmless each Buyer and its directorseach holder of any Securities and all of their stockholders, partners, members, officers, shareholders, members, partnersdirectors, employees and agents (direct or indirect investors and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Buyer (within the meaning of Section 15 of the Securities Act foregoing Persons’ agents or representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and Section 20 against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the Exchange Actaction for which indemnification hereunder is sought), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Buyer Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that disbursements (the “Indemnified Liabilities”), incurred by any such Buyer Party may suffer or incur Indemnitee as a result of of, or arising out of, or relating to (ai) any misrepresentation or breach of any representation or warranty made by the Company or any Subsidiary in any of the Transaction Documents, (ii) any breach of any covenant, agreement or obligation of the representations, warranties, covenants Company or agreements made by any Subsidiary contained in any of the Company in this Agreement or in the other Transaction Documents or (biii) any cause of action, suit, proceeding or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action instituted against the Buyer Parties in any capacity, or any of them or their respective Affiliates, by any stockholder brought on behalf of the Company who is not an Affiliate or any Subsidiary) or which otherwise involves such Indemnitee that arises out of, results from, or relates to (A) the execution, delivery, performance or enforcement of any of the Transaction Documents, (B) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, or (C) the status of such Buyer Party, with respect or holder of the Securities either as an investor in the Company pursuant to any of the transactions contemplated by the Transaction Documents or as a party to this Agreement (unless such including, without limitation, as a party in interest or otherwise in any action is solely based upon a material breach of such Buyer Party’s representations, warranties or covenants under the Transaction Documents proceeding for injunctive or any agreements or understandings such Buyer Party may have with any such stockholder or any violations by such Buyer Party of state or federal securities laws or any conduct by such Buyer Party which is finally judicially determined to constitute fraud, gross negligence or willful misconductother equitable relief). If any action shall be brought against any Buyer Party in respect of which indemnity may be sought pursuant to this Agreement, such Buyer Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Buyer Party. Any Buyer Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Buyer Party except to To the extent that (i) the employment thereof has been specifically authorized foregoing undertaking by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Buyer Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Buyer Party under this Agreement (y) for any settlement by a Buyer Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is primarily attributable to any Buyer Party’s breach of any of the representations, warranties, covenants or agreements made by such Buyer Party in this Agreement or in the other Transaction Documents or any conduct by a Buyer Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct or a violation of applicable securities laws. The indemnification required by this Section 4.10 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred; provided, that if any Buyer Party is finally judicially determined not to be entitled to indemnification or payment under this Section 4.10, such Buyer Party shall promptly reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Buyer Party against the Company or others and any liabilities the Company may be subject unenforceable for any reason, the Company shall make the maximum contribution to pursuant to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.

Indemnification of Buyers. Subject to the other provisions of this Section 4.10Article VI, the Company Sellers, severally, and not jointly, will indemnify and hold each Buyer Buyers, their affiliates and its their respective directors, officers, shareholdersemployees, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title)collectively, each Person who controls such the "Buyer (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Buyer Party”Parties") harmless from any and all losses, liabilitiesLiabilities, obligations, claims, losses, contingencies, damages, costs costs, and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ ' fees and costs of investigation (collectively, "Losses"), that any such Buyer Party may suffer actually suffers or incur incurs as a result of or relating to to: (a) any the breach or inaccuracy of any of the representations, warranties, covenants representation or agreements warranty made by the Company any Seller in this Agreement or in the any other Transaction Documents Seller Document or any allegation by a third party that, if true, would constitute such a breach or inaccuracy; (b) the breach or inaccuracy of any action instituted against the Buyer Parties in any capacity, covenant or any of them or their respective Affiliates, agreement made by any stockholder of the Company who is not an Affiliate of such Buyer Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Buyer Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Buyer Party may have with any such stockholder or any violations by such Buyer Party of state or federal securities laws or any conduct by such Buyer Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against any Buyer Party in respect of which indemnity may be sought pursuant to this Agreement, such Buyer Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Buyer Party. Any Buyer Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Buyer Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Buyer Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Buyer Party under this Agreement (y) for any settlement by a Buyer Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is primarily attributable to any Buyer Party’s breach of any of the representations, warranties, covenants or agreements made by such Buyer Party Seller in this Agreement or in the any other Transaction Documents Seller Document or any conduct allegation by a third party that, if true, would constitute such a breach; and (c) any Liability of any Seller, other than the Assumed Liabilities, or the operation or use of the Assets or the conduct of the Companies' business prior to the Closing. For purposes of determining the magnitude of any Loss giving rise to the Buyer Party which is finally judicially determined Parties' rights to constitute fraud, gross negligence or willful misconduct or a violation of applicable securities laws. The indemnification required by pursuant to this Section 4.10 shall be made by periodic payments of the amount thereof during the course of the investigation 6.1 (but not in determining whether there has been any breach or defense, as and when bills are received or are incurred; provided, that if any Buyer Party is finally judicially determined not to be entitled to indemnification or payment under this Section 4.10, such Buyer Party shall promptly reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements contained herein shall be in addition to any cause of action or similar right inaccuracy of any Buyer Party against the Company representation, warranty, covenant or others agreement), all materiality and any liabilities the Company may knowledge qualifiers will be subject to pursuant to lawexcluded from and given no effect in each representation and warranty set forth in Article II and each covenant set forth in Article IV.