Common use of Indemnification of Parent and Merger Sub Clause in Contracts

Indemnification of Parent and Merger Sub. By their approval of this Agreement and the Merger and by their acceptance of the Merger Consideration, each Company Stockholder (except for holders of the Dissenting Shares, if any) on the Closing Date agrees, subject to the terms and conditions set forth herein, to severally and not jointly based upon such Company Stockholder's pro rata share of the Merger Consideration payable in respect of all outstanding shares of Company Stock, indemnify and hold harmless each of Parent, Merger Sub, the Surviving Corporation, each of their respective subsidiaries and affiliates and each of their and their subsidiaries' and affiliates' respective directors, officers, agents and employees (each an indemnified party) at all times from and after the Closing from and against all Damages (as defined below) that results from (i) the breach or inaccuracy of any representation or warranty of the Company or such Company Stockholder set forth in the Agreement or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement with respect to which a claim for indemnification is brought by an indemnified party within the applicable survival period described in Section 10.1, or (ii) any breach or nonfulfillment by the Company or such Company Stockholder, or any noncompliance by the Company or such Company Stockholder with, any covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by Parent, or (iii) any claim by a holder or former holder of the Company's capital stock or options, warrants or other securities convertible into or exercisable for shares of the Company's capital stock (the "CONVERTIBLE SECURITIES") or any other person, seeking to assert, or based upon: (A) ownership or rights of ownership to any shares of capital stock of the Company; (B) any rights of a stockholder of the Company (other than the right to receive the Merger Consideration pursuant to this Agreement or appraisal rights under the applicable provisions of the MBCL), including any option, preemptive rights, or rights to notice or to vote; (C) any rights under the charter or bylaws of the Company; or (D) any claim that his, her or its shares or Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of whether an action, suit or proceeding can or has been made against the Company, and any and all actions, suits and Proceedings resulting from any of the foregoing (hereinafter called a "BUYER CLAIM" or "BUYER CLAIMS").

Indemnification of Parent and Merger Sub. By their approval of this Agreement and the Merger and by their acceptance of the Merger Consideration, each Company Stockholder (except for holders of the Dissenting Shares, if any) on the Closing Date Designated Company Stockholders agrees, subject to the terms and conditions set forth herein, to severally and not jointly jointly, based upon such Designated Company Stockholder's pro rata share of the Merger Consideration payable in respect of all outstanding shares of Company Stock, indemnify and hold harmless each of Parent, Merger Sub, the Surviving Corporation, each of their respective subsidiaries and affiliates and each of their and their subsidiaries' and affiliates' respective directors, officers, agents and employees (each an indemnified party) at all times from and after the Closing from and against all Damages (as defined below) that results result from (i) the breach or inaccuracy of any representation or warranty of the Company or such Company Stockholder set forth in the this Agreement or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement (as such representation or warranty would read if all qualifications as to materiality and material adverse effect were deleted therefrom) as of the date the same were made, with respect to which a claim for indemnification is brought by an indemnified party within the applicable survival period Survival Period described in Section 10.18.1, or (ii) any breach or nonfulfillment by the Company or such Company StockholderCompany, or any noncompliance by the Company or such Company Stockholder with, any covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by Parent, or (iii) the Excluded Obligations, or (iv) any claim by a holder or former holder of the Company's capital stock or Enikia LLC's Securities or options, warrants or other securities convertible into or exercisable for shares of the Company's capital stock or Enikia LLC's Securities (the "CONVERTIBLE SECURITIES") or any other person, seeking to assert, or based upon: (A) ownership or rights of ownership to any shares of capital stock equity security of the CompanyCompany or Enikia LLC; (B) any rights of a stockholder an equity holder of the Company (other than the right to receive the Merger Consideration pursuant to this Agreement or appraisal rights under the applicable provisions of the MBCLAgreement), including any option, preemptive rights, or rights to notice or to vote; (C) any rights of an equity holder of Enikia LLC, including any option, preemptive rights or rights to notice or to vote; (D) any rights under the charter Certificate of Incorporation or bylaws By-Laws of the Company; or (DE) any claim that his, her or its shares Company Shares or Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of whether an action, suit or proceeding can or has been made against the Company, and any and all actions, suits and Proceedings proceedings resulting from any of the foregoing (hereinafter called a "BUYER CLAIM" or "BUYER CLAIMS").

Indemnification of Parent and Merger Sub. By their approval of this Agreement and the Merger and by their acceptance of the Merger Consideration, each The Company Stockholder (except for holders of the Dissenting Shares, if any) on the Closing Date agrees, subject agrees to the terms and conditions set forth herein, to severally and not jointly based upon such Company Stockholder's pro rata share of the Merger Consideration payable in respect of all outstanding shares of Company Stock, indemnify and hold harmless each of Parent, Merger Sub, the Surviving Corporation, each of their respective subsidiaries and affiliates and each of their and their subsidiaries' ’ and affiliates' ’ respective directors, officers, agents and employees (each an indemnified party) at all times from and after the Closing from and against all Damages (as defined below) that results result from (i) the breach or inaccuracy of any representation or warranty of the Company or such Company Stockholder set forth in the Agreement or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement with respect to which a valid claim for indemnification is brought by an indemnified party within the applicable survival period described in Section 10.1party, or (ii) any breach or nonfulfillment by the Company or such Company StockholderCompany, or any noncompliance by the Company or such Company Stockholder with, any material covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by Parent, or (iii) any claim by a holder or former holder of the Company's ’s capital stock or options, warrants or other securities convertible into or exercisable for shares of the Company's ’s capital stock (the "CONVERTIBLE SECURITIES"“Company Convertible Securities”) or any other person, seeking to assert, or based upon: (A) ownership or rights of ownership to any shares of capital stock of the Company; (B) any rights of a stockholder of the Company (other than the right to receive the Merger Consideration New Parent Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the MBCLCorporation Law), including any option, preemptive rights, or rights to notice or to vote; (C) any rights under the charter or bylaws of the Company; or (D) any claim that his, her or its shares or Company Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of whether an action, suit or proceeding can or has been made against the Company, and any and all actions, suits and Proceedings resulting from any of the foregoing (hereinafter called a "BUYER CLAIM" “Buyer Claim” or "BUYER CLAIMS"“Buyer Claims”).

Indemnification of Parent and Merger Sub. By their approval of this Agreement and the Merger and by their acceptance of the Merger Consideration, each The Company Stockholder (except for holders of the Dissenting Shares, if any) on the Closing Date agrees, subject agrees to the terms and conditions set forth herein, to severally and not jointly based upon such Company Stockholder's pro rata share of the Merger Consideration payable in respect of all outstanding shares of Company Stock, indemnify and hold harmless each of Parent, Merger Sub, the Surviving Corporation, each of their respective subsidiaries and affiliates and each of their and their subsidiaries' ’ and affiliates' ’ respective directors, officers, agents and employees (each an indemnified party) at all times from and after the Closing from and against all Damages (as defined below) that results result from (i) the breach or inaccuracy of any representation or warranty of the Company or such Company Stockholder set forth in the Agreement or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement with respect to which a valid claim for indemnification is brought by an indemnified party within the applicable survival period described in Section 10.1party, or (ii) the Intrac Dispute, (iii) any breach or nonfulfillment by the Company or such Company StockholderCompany, or any noncompliance by the Company or such Company Stockholder with, any material covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by Parent, or (iiiiv) any claim by a holder or former holder of the Company's ’s capital stock or options, warrants or other securities convertible into or exercisable for shares of the Company's ’s capital stock (the "CONVERTIBLE SECURITIES"“Company Convertible Securities”) or any other person, seeking to assert, or based upon: (A) ownership or rights of ownership to any shares of capital stock of the Company; (B) any rights of a stockholder of the Company (other than the right to receive the Merger Consideration New Parent Shares pursuant to this Agreement or appraisal rights under the applicable provisions of the MBCLCorporation Law), including any option, preemptive rights, or rights to notice or to vote; (C) any rights under the charter or bylaws of the Company; or (D) any claim that his, her or its shares or Company Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of whether an action, suit or proceeding can or has been made against the Company, and any and all actions, suits and Proceedings resulting from any of the foregoing (hereinafter called a "BUYER CLAIM" “Buyer Claim” or "BUYER CLAIMS"“Buyer Claims”).

Indemnification of Parent and Merger Sub. By their approval of this Agreement and the Merger and by their acceptance of the Merger Consideration, each Company Stockholder (except for holders of the Dissenting Shares, if any) on the Closing Date agrees, subject to the terms and conditions set forth herein, to severally and not jointly based upon such Company Stockholder's ’s pro rata share of the Merger Consideration payable in respect of all outstanding shares of Company Common Stock, indemnify and hold harmless each of Parent, Merger Sub, Sunset, the Surviving Corporation, each of their respective subsidiaries and affiliates and each of their and their subsidiaries' ’ and affiliates' ’ respective directors, officers, agents and employees (each an indemnified party) at all times from and after the Closing from and against all Damages (as defined below) that results from (i) the breach or inaccuracy of any representation or warranty of the Company or such Company Stockholder set forth in the Agreement or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement with respect to which a claim for indemnification is brought by an indemnified party within the applicable survival period described in Section 10.111.1, or (ii) any breach or nonfulfillment by the Company or such Company Stockholder, or any noncompliance by the Company or such Company Stockholder with, any covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except to the extent waived in writing by ParentParent and Sunset, or (iii) any claim by a holder or former holder of the Company's ’s capital stock or options, warrants or other securities convertible into or exercisable for shares of the Company's ’s capital stock (the "CONVERTIBLE SECURITIES"“Convertible Securities”) or any other person, seeking to assert, or based upon: (A) ownership or rights of ownership to any shares of capital stock of the Company; (B) any rights of a stockholder of the Company (other than the right to receive the Merger Consideration pursuant to this Agreement or appraisal rights under the applicable provisions of the MBCLCorporation Law), including any option, preemptive rights, or rights to notice or to vote; (C) any rights under the charter or bylaws of the Company; or (D) any claim that his, her or its shares or Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of whether an action, suit or proceeding can or has been made against the Company, and any and all actions, suits and Proceedings resulting from any of the foregoing (hereinafter called a "BUYER CLAIM" “Parent Claim” or "BUYER CLAIMS"“Parent Claims”).

Indemnification of Parent and Merger Sub. By their approval of this Agreement From and the Merger and by their acceptance of the Merger Consideration, each Company Stockholder (except for holders of the Dissenting Shares, if any) on after the Closing Date agrees, and subject to the terms and conditions set forth hereinlimitations contained in this Article IX, to each Shareholder will, severally and not jointly based upon jointly, in accordance with such Company Stockholder's pro rata share of the Merger Consideration payable in respect of all outstanding shares of Company Stock, Shareholder’s Pro Rata Portion indemnify Parent and hold harmless each of Parent, Merger Sub, their respective Affiliates (including the Surviving Corporation, each of their respective subsidiaries and affiliates ) and each of their and their subsidiaries' and affiliates' Affiliates’ respective directorsshareholders, officers, agents directors, employees, agents, Representatives and employees successors and assigns (each an indemnified partycollectively, the “Parent Indemnified Parties”) at all times from and after hold the Closing from and Parent Indemnified Parties harmless against all Damages damages, losses, out-of-pocket expense, Liabilities, fines, claims, forfeitures, obligations, Actions, Taxes, judgments, interest, awards, penalties, fees, costs or expenses (as defined belowincluding reasonable out-of-pocket expenses of investigation and reasonable and documented attorneys’ fees and expenses in connection with any Action, whether involving a Third-Party Claim or a claim solely between the Parties hereto, to enforce the provisions hereof) and reasonable and documented attorneys’ fees (collectively, “Damages”) that results from the Parent Indemnified Parties have incurred arising out of: (ia) the inaccuracy or breach or inaccuracy of any representations and warranties set forth in Article IV of this Agreement or any Ancillary Agreement including any Third-Party Claim alleging facts that, if true, would constitute a breach of any such representation or warranty warranty, (b) a breach of any covenant or other obligation of the Company or such Company Stockholder set forth any Shareholder contained in the this Agreement or in any certificate Ancillary Agreement (c) any demand for appraisal or other document delivered in connection with assertion of dissenter’s rights by any Shareholder (including the transactions contemplated by this Agreement with respect amount per Share payable to which a claim for indemnification is brought by an indemnified party within the applicable survival period described Share in accordance with Section 10.12.4), (d) any inaccuracy in, or claims from any Shareholder related to or arising out of, the Allocation Schedule, including to the extent any Shareholder is entitled to receive any amounts in excess of the amounts indicated on the Allocation Schedule, (iie) any breach or nonfulfillment Fraud committed by the Company or such Company Stockholder, any of its Subsidiaries (at or any noncompliance by the Company or such Company Stockholder with, any covenant, agreement, or obligation contained herein or in any certificate or other document delivered in connection with the transactions contemplated by this Agreement except prior to the extent waived in writing by ParentEffective Time), or (iiif) any claim by a holder or former holder of Pre-Closing Taxes and (g) the Company's capital stock or options, warrants or other securities convertible into or exercisable for shares of the Company's capital stock (the "CONVERTIBLE SECURITIES") or any other person, seeking to assert, or based upon: (A) ownership or rights of ownership to any shares of capital stock of the Company; (B) any rights of a stockholder of the Company (other than the right to receive the Merger Consideration pursuant to this Agreement or appraisal rights under the applicable provisions of the MBCL), including any option, preemptive rights, or rights to notice or to vote; (C) any rights under the charter or bylaws of the Company; or (D) any claim that his, her or its shares or Convertible Securities were wrongfully repurchased, canceled, terminated or otherwise limited by the Company, regardless of whether an action, suit or proceeding can or has been made against the Company, and any and all actions, suits and Proceedings resulting from any of the foregoing (hereinafter called a "BUYER CLAIM" or "BUYER CLAIMS")Special Indemnification Items.