Common use of Indemnification of Parent Group Members Clause in Contracts

Indemnification of Parent Group Members. (a) Subject to the provisions of this Article XII, from and after the Effective Time, each Parent Group Member shall be indemnified and held harmless [*] from and against any and all Losses and Expenses incurred by any such Parent Group Member in connection with or arising from: (i) any breach by the Company (prior to the Effective Time) of any of its covenants, or any failure of the Company (prior to the Effective Time) to perform any of its obligations, in this Agreement, or any Company Ancillary Agreement; (ii) (A) any breach of any warranty or inaccuracy of any representation of the Company contained or referred to in this Agreement or in any certificate delivered by or on behalf of the Company pursuant hereto, other than the representations and warranties described in the following clause (B), in each case without giving effect to any concept of “material,” “materiality,” Material Adverse Effect or a similar qualification, and (B) any breach of any warranty or inaccuracy of any representation of the Company contained in [*] of this Agreement (for purposes of calculating any Losses and Expenses arising from such breach or inaccuracy, each such representation and warranty shall be read as if it were not qualified by any concept of “material,” “materiality,” Material Adverse Effect or a similar qualification); [*]; (iii) any matter for which indemnification of any Parent Group Member is provided under Section 9.1; (iv) any inaccuracy in the Closing Calculation Certificate; (v) any exercise of appraisal rights pursuant to Section 262 of the DGCL or demand therefor by any Stockholder, but only to the extent that the aggregate of such Losses and Expenses incurred in respect of such Stockholder’s exercise of such rights exceeds the aggregate amount that such Stockholder would otherwise have received for its Shares in accordance with the terms of this Agreement if such Stockholder had not exercised such rights; (vi) (A) any claim by a Stockholder or former stockholder of the Company, or by any other Person, seeking to assert, or based upon ownership or rights to ownership of any Shares or options for Shares; (B) any claim by a Stockholder or former stockholder of the Company seeking to assert, or based upon: (I) any right under the Company Charter or Company Bylaws or state or federal laws relating to corporate governance; or (II) any claim, whether derivative or otherwise, against any director of the Company relating to the sale of the Company; and (vii) any matter set forth on Schedule 12.1(a)(vii). provided, however, that (A) Parent Group Members shall not be indemnified or held harmless under clause (ii) of this sentence with respect to Losses and Expenses incurred by Parent Group Members (other than Losses and Expenses incurred as a result of any inaccuracies of the representations or any breaches of the warranties contained in Sections [*] unless the aggregate amount of all such Losses and Expenses subject to indemnification exceeds $[*] (the “Basket Amount”), and once the Basket Amount is exceeded, Parent Group Members shall be indemnified and held harmless [*]; and (B) in no event shall the aggregate amount for which Parent Group Members shall be indemnified and held harmless under Section 12.1 (including any indemnification pursuant to Section 9.1) exceed an amount equal to [*]. (b) The indemnification provided for in this Section 12.1 shall terminate [*] after the Closing Date (and no claims shall be made by any Parent Group Member under this Section 12.1 thereafter), except that indemnification of Parent Group Members shall continue as to any claim of which any Parent Group Member has notified the Representative in accordance with the requirements of Section 12.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 12.1, as to which the right of the Parent Group Member to be indemnified shall continue until the liability shall have been determined pursuant to this Article XII, and all Parent Group Members shall have been reimbursed for the full amount of such Loss and Expense in accordance with this Article XII. The Parent Group Members shall be entitled to the indemnification provided for under this Section 12.1 even if any of them had knowledge at any time of the matter that is later the subject of a claim for indemnity. (c) The limitations on indemnification contained in Section 12.1(a) and Section 12.1(b) shall not apply in the case of fraud or willful misconduct; provided that in no event shall the aggregate amount for which Parent Group Members shall be indemnified and held harmless in the case of fraud or willful misconduct under Section 12.1 exceed the Merger Consideration.

Indemnification of Parent Group Members. (a) Subject to the provisions of this Article XIIXI, from and after the Effective Time, each Parent Group Member shall be indemnified and held harmless [*] from and against any and all Losses and Expenses incurred by any such Parent Group Member in connection with or arising from: (i) any breach by the Company (prior to the Effective Time) or the Shareholder Representative (at any time) of any of its covenants, or any failure of the Company (prior to the Effective Time) to perform any of its obligations, in this Agreement, Agreement or in any Company Ancillary Agreement; (ii) (A) any breach of any warranty or the inaccuracy of any representation of the Company contained or referred to in this Agreement or in any certificate delivered by or on behalf of the Company pursuant heretohereto (it being understood that for purposes of this Section 11.1(a)(ii), other than except for the representations and warranties described set forth in the following clause (BSection 5.4(b), in each case 5.6(a), 5.11(a), 5.14(f), or 5.28, such representations and warranties shall be interpreted without giving effect to any concept of limitations or qualifications as to “materiality” (including the word “material,”) or “material adverse effect” “materiality,” Material Adverse Effect or a similar qualification, and set forth therein); (Biii) any breach of any warranty or the inaccuracy of any representation of the Company Shareholder Representative contained or referred to in [*] of this Agreement or any certificate delivered by or on behalf of the Shareholder Representative pursuant hereto; (iv) the payment by the Company of Acquisition Expenses that are not included in the Valuation Date Working Capital, the existence of any shortfall in amounts owed to Parent pursuant to Section 2.4(a) or any claims for purposes Accrued Dividends; (v) the claims disclosed on Schedule 5.13 of calculating the Disclosure Schedule, any counterclaims or related claims or proceedings whether filed or made before or after the Closing Date; (vi) any Pre-Closing Taxes or Transfer Taxes; (vii) any Losses and Expenses incurred by any Parent Group Member in connection with or arising from the exercise of dissenters’ rights pursuant to the NCBCA by Shareholders (including all Losses and Expenses associated with any appraisal proceedings and all amounts determined to be payable to any such holders pursuant to Article 13 of the NCBCA) to the extent that such Losses and Expenses exceed the product of (x) the number of Dissenters’ Shares and (y) the amount of per share consideration to which the holder of such Dissenters’ Shares would have been entitled pursuant to Section 2.1 at the Effective Time; or (viii) any acts or omissions after the date hereof and on or prior to the Effective Date of the Company, the Subsidiaries or any predecessors thereof or any Losses and Expenses arising from such breach in connection with or inaccuracy, each such representation and warranty shall be read as if it were not qualified by any concept of “material,” “materiality,” Material Adverse Effect or a similar qualification); [*]; (iii) any matter for which indemnification of any Parent Group Member is provided under Section 9.1; (iv) any inaccuracy in the Closing Calculation Certificate; (v) any exercise of appraisal rights pursuant to Section 262 out of the DGCL or demand therefor by any Stockholder, but only to the extent that the aggregate of such Losses and Expenses incurred in respect of such Stockholder’s exercise of such rights exceeds the aggregate amount that such Stockholder would otherwise have received for its Shares in accordance with the terms of this Agreement if such Stockholder had not exercised such rights; (vi) (A) any claim by a Stockholder or former stockholder operation of the Company, ’s or by any the Subsidiaries’ business after the date hereof and on or prior to the Effective Date (in each case other Person, seeking to assert, than amounts reflected on the Balance Sheet or based upon ownership or rights to ownership in the calculation of any Shares or options for Shares; Valuation Date Working Capital) (B) any claim by a Stockholder or former stockholder excluding matters set forth in the Disclosure Schedule as of the Company seeking to assert, date hereof where any Loss or based upon: (I) any right under Expense is readily apparent from the Company Charter or Company Bylaws or state or federal laws relating to corporate governancedisclosure); or (II) any claim, whether derivative or otherwise, against any director of the Company relating to the sale of the Company; and (vii) any matter set forth on Schedule 12.1(a)(vii). provided, however, that (A) that Parent Group Members shall not be indemnified or and held harmless under clause clauses (ii), (iii), (v) and (viii) of this sentence with respect to Losses and Expenses incurred by Parent Group Members (other than Losses and Expenses incurred as a result of any inaccuracies inaccuracy of the representations any representation or breach of any breaches of the warranties warranty contained in Sections [*] unless Section 5.1(a), 5.1(b), 5.2, 5.3, 5.7, 5.27 or 5.30, as to which this proviso shall have no effect) only to the extent that the aggregate amount of all such Losses and Expenses subject to indemnification exceeds $[*] (3,000,000, but, if in excess of such amount, then for the “Basket Amount”), entire amount of such Losses and once the Basket Amount is exceeded, Parent Group Members shall be indemnified and held harmless [*]; and (B) in no event shall the aggregate amount for which Parent Group Members shall be indemnified and held harmless under Section 12.1 (including any indemnification pursuant to Section 9.1) exceed an amount equal to [*]Expenses without deduction. (b) The indemnification provided for in this Section 12.1 11.1 shall terminate [*] after on the first anniversary of the Closing Date (and no claims shall be made by any Parent Group Member under this Section 12.1 11.1 thereafter), except that the indemnification of Parent Group Members shall continue as to: (i) the covenants of the Company set forth in Sections 14.2 and 14.12), as to all of which no time limit shall apply; (ii) the representations and warranties set forth in Sections 5.1(a), 5.1(b), 5.2, 5.3, 5.7, 5.27 and 5.30, and the indemnification provided in Section 11.1(a)(vi), as to which the indemnification provided for in this Section 11.1 shall survive for the applicable statute of limitations; and (iii) any claim Loss or Expense of which any Parent Group Member has notified the Shareholder Representative in accordance with the requirements of Section 12.3 11.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 12.111.1, as to which the right of the Parent Group Member to be indemnified shall continue until the liability shall have been determined pursuant to this Article XII, XI and all Parent Group Members shall have been reimbursed for the full amount of such Loss and Expense in accordance with this Article XII. The Parent Group Members shall be entitled to the indemnification provided for under this Section 12.1 even if any of them had knowledge at any time of the matter that is later the subject of a claim for indemnityXI. (c) The limitations on indemnification Except with respect to claims for Losses and Expenses incurred by any Parent Group Member in connection with or arising from any breach of any warranty or the inaccuracy of any representation of the Company contained in Section 12.1(a) 5.1(a), 5.1(b), 5.2, 5.3, 5.7, 5.27 or 5.30 or the indemnification provided in Section 11.1(a)(vi), the maximum amount of Losses and Expenses eligible for indemnification claims pursuant to this Section 12.1(b) 11.1 shall not apply exceed an amount equal to the Indemnification Escrow Amount. (d) With respect to claims for Losses and Expenses incurred by any Parent Group Member in connection with or arising from any breach of any warranty or the inaccuracy of any representation of the Company contained in Section 5.1(a), 5.1(b), 5.2, 5.3, 5.7, 5.27 or 5.30 or the indemnification provided in Section 11.1(a)(vi), the maximum amount of Losses and Expenses eligible for indemnification claims pursuant to this Section 11.1 shall not exceed an amount as set forth in the case of fraud or willful misconduct; provided that in no event shall the aggregate amount for which Parent Group Members shall be indemnified and held harmless in the case of fraud or willful misconduct under Section 12.1 exceed the Merger ConsiderationIndemnification Agreement.

Indemnification of Parent Group Members. (a) Subject to 10.1.1 To the provisions of this Article XIIextent set forth under Section 10.1.2, from each Stockholder Group Member shall jointly and after the Effective Time, severally indemnify and hold harmless each Parent Group Member shall be indemnified and held harmless [*] from and against any and all Losses and Expenses incurred by any such Parent Group Member in connection with or arising from: (i) 10.1.1.1 any breach or failure to perform, or any third party claim that if successful would constitute a breach or failure to perform, by the Company (of any of its agreements, covenants or obligations in this Agreement or in any Company Ancillary Agreement to be performed prior to the Effective Time) of ; or 10.1.1.2 any of its covenantsbreach, or any failure third party claim that if successful would constitute a breach, of any warranty, or the Company (prior to the Effective Time) to perform any of its obligations, in this Agreementinaccuracy, or any Company Ancillary Agreement; (ii) (A) any breach of any warranty or inaccuracy third party claim that if successful would constitute an inaccuracy, of any representation or warranty of the Company Company, contained or referred to in this Agreement (including any misrepresentation or in warranty in, or omission from, any certificate delivered Schedule, Exhibit, statement, certificate, report or other document furnished or to be furnished by or on behalf of the Company or any Stockholder pursuant hereto or thereto). 10.1.1.3 any Excess Expense arising under Section 7.14 hereto. 10.1.2 Except as limited below, other than Parent shall have the representations and warranties described in the following clause (B)right to set off or recover any Losses or Expenses, in each case without giving effect with respect to which Parent is entitled to indemnification under this Section 10.1 against any payments otherwise payable to any concept of “material,” “materiality,” Material Adverse Effect or a similar qualification, and (B) any breach of any warranty or inaccuracy of any representation of the Company contained in [*] of this Agreement (for purposes of calculating any Losses and Expenses arising from such breach or inaccuracy, each such representation and warranty shall be read as if it were not qualified by any concept of “material,” “materiality,” Material Adverse Effect or a similar qualification); [*]; (iii) any matter for which indemnification of any Parent Stockholder Group Member is provided under Section 9.1; (iv) any inaccuracy in from the Closing Calculation Certificate; (v) any exercise of appraisal rights pursuant to Section 262 of the DGCL or demand therefor by any Stockholder, but only to the extent that the aggregate of such Losses and Expenses incurred in respect of such Stockholder’s exercise of such rights exceeds the aggregate amount that such Stockholder would otherwise have received for its Shares Escrow in accordance with the terms of this Agreement if such Stockholder had not exercised such rights; the Escrow Agreement, provided that (vii) (A) any claim by a Stockholder or former stockholder of the Company, or by any other Person, seeking to assert, or based upon ownership or rights to ownership of any Shares or options for Shares; (B) any claim by a Stockholder or former stockholder of the Company seeking to assert, or based upon: (I) any right under the Company Charter or Company Bylaws or state or federal laws relating to corporate governance; or (II) any claim, whether derivative or otherwise, against any director of the Company relating to the sale of the Company; and (vii) any matter set forth on Schedule 12.1(a)(vii). provided, however, that (A) Parent Group Members shall not be indemnified or held harmless under clause (ii) of this sentence with respect to Losses and Expenses incurred by Parent Group Members (other than Losses and Expenses incurred as a result of any inaccuracies of the representations or any breaches of the warranties contained in Sections [*] unless the aggregate amount of all such Losses and or Expenses subject in connection with or arising from the fraud, willful deceit or intentional misrepresentation of the Company or any of the Effective Time Stockholders shall be limited to indemnification exceeds $[*] (the “Basket Amount”)10,000,000, and once the Basket Amount is exceeded, Parent Group Members shall be indemnified and held harmless [*]; and (Bii) in no event shall the aggregate amount for which Parent Group Members of Losses or Expenses in connection with or arising from any situation other that that described in subsection (i) of this Section 10.1.2 shall be indemnified and held harmless under Section 12.1 (including any indemnification pursuant limited to Section 9.1) exceed an amount equal to [*]. (b) The indemnification $5,000,000, provided for in this Section 12.1 shall terminate [*] after the Closing Date (and no claims shall be made by any Parent Group Member under this Section 12.1 thereafter)further that, except that indemnification of Parent Group Members shall continue as with respect to any claim breach of which Section 5.7.2 hereof, the amount of any Parent Group Member has notified such debts, liabilities or obligations in excess of the Representative amounts provided thereunder may be reduced by the amount of any assets of the Company in excess of those reflected on the Balance Sheet or that would have been reflected on the Balance Sheet if the Balance Sheet was prepared on an accrual accounting basis in accordance with the requirements GAAP. The parties hereto hereby agree that for purposes of Section 12.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 12.110, as to which the right of the Parent Group Member to be indemnified shall continue until the liability shall have been determined pursuant to this Article XII, and all Parent Group Members shall have been reimbursed for the full amount of such Loss and Expense in accordance with this Article XII. The Parent Group Members Escrow Shares shall be entitled to the indemnification provided for under this Section 12.1 even if any of them had knowledge valued at any time of the matter that is later the subject of a claim for indemnity$20.00 per share. (c) The limitations on indemnification contained in Section 12.1(a) and Section 12.1(b) shall not apply in the case of fraud or willful misconduct; provided that in no event shall the aggregate amount for which Parent Group Members shall be indemnified and held harmless in the case of fraud or willful misconduct under Section 12.1 exceed the Merger Consideration.

Indemnification of Parent Group Members. (a) Subject to 10.1.1 To the provisions of this Article XIIextent set forth under Section 10.1.2, from each Stockholder Group Member shall jointly and after the Effective Time, severally indemnify and hold harmless each Parent Group Member shall be indemnified and held harmless [*] from and against any and all Losses and Expenses incurred by any such Parent Group Member in connection with or arising from: (i) 10.1.1.1 any breach or failure to perform, or any third party claim that if successful would constitute a breach or failure to perform, by the Company (of any of its agreements, covenants or obligations in this Agreement or in any Company Ancillary Agreement to be performed prior to the Effective Time) of ; 10.1.1.2 any of its covenantsbreach, or any failure third party claim that if successful would constitute a breach, of any warranty, or the Company (prior to the Effective Time) to perform any of its obligations, in this Agreementinaccuracy, or any Company Ancillary Agreement; (ii) (A) any breach of any warranty or inaccuracy third party claim that if successful would constitute an inaccuracy, of any representation or warranty of the Company Company, contained or referred to in this Agreement (including any misrepresentation or in warranty in, or omission from, any certificate delivered Schedule, Exhibit, statement, certificate, report or other document furnished or to be furnished by or on behalf of the Company or any Stockholder pursuant hereto37 39 hereto or thereto); provided, other than however, that for the representations purpose of this Section 10, any Knowledge Qualification included in any such representation shall be disregarded and warranties described in the following clause (B), in each case without giving effect Stockholder Group Members shall be entitled to be indemnified against Losses and Expenses irrespective of whether Seller had notice or knowledge of the matters addressed by such representation; or 10.1.1.3 any concept of “material,” “materiality,” Material Adverse Effect liability or a similar qualification, and (B) any breach of any warranty or inaccuracy of any representation obligation of the Company contained in [*] respect of this Agreement (for purposes the assets, operations or business of calculating any Losses and Expenses the Company arising from events occurring on or prior to the Effective Time, excepting only (a) such breach or inaccuracy, each such representation liabilities and warranty shall be read obligations as if it were not qualified by any concept of “material,” “materiality,” Material Adverse Effect or a similar qualification); [*]; (iii) any matter for which indemnification of any Parent Group Member is provided under Section 9.1; (iv) any inaccuracy are disclosed in the Closing Calculation Certificate; Schedules to this Agreement, or (vb) any exercise of appraisal rights are assumed pursuant to Section 262 of 4.5.2; 10.1.2 Parent shall have the DGCL right to set off or demand therefor by recover any Stockholder, but only Losses or Expenses with respect to which Parent is entitled to indemnification under this Section 10.1 against any payments otherwise payable to the extent that Effective Time Stockholders from the aggregate of such Losses and Expenses incurred in respect of such Stockholder’s exercise of such rights exceeds the aggregate amount that such Stockholder would otherwise have received for its Shares Escrow in accordance with the terms of this Agreement if the Escrow Agreement, and, except in the event of fraud, such Stockholder had not exercised such rights; (vi) (A) any claim by a Stockholder or former stockholder right of set-off and recovery shall be Parent's sole recourse against the Company, or by any other Person, seeking to assert, or based upon ownership or rights to ownership of any Shares or options for Shares; (B) any claim by a Stockholder or former stockholder of the Company seeking to assert, or based upon: (I) any right under the Company Charter or Company Bylaws or state or federal laws relating to corporate governance; or (II) any claim, whether derivative or otherwise, against any director of the Company relating to the sale of the Company; and (vii) any matter set forth on Schedule 12.1(a)(vii). provided, however, that (A) Parent Group Members shall not be indemnified or held harmless under clause (ii) of this sentence Stockholders with respect to Losses and Expenses incurred by Parent Group Members (other than Losses and Expenses incurred as a result of any inaccuracies of the representations or any breaches of the warranties contained in Sections [*] unless the aggregate amount of all such Losses and Expenses subject to indemnification exceeds $[*] (the “Basket Amount”), and once the Basket Amount is exceeded, Parent Group Members shall be indemnified and held harmless [*]; and (B) in no event shall the aggregate amount for which Parent Group Members shall be indemnified and held harmless under Section 12.1 (including any indemnification pursuant to Section 9.1) exceed an amount equal to [*]. (b) The indemnification provided for indemnity set forth in this Section 12.1 shall terminate [*] after the Closing Date (and no claims shall be made by any Parent Group Member under this Section 12.1 thereafter), except that indemnification of Parent Group Members shall continue as to any claim of which any Parent Group Member has notified the Representative in accordance with the requirements of Section 12.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 12.1, as to which the right of the Parent Group Member to be indemnified shall continue until the liability shall have been determined pursuant to this Article XII, and all Parent Group Members shall have been reimbursed for the full amount of such Loss and Expense in accordance with this Article XII. The Parent Group Members shall be entitled to the indemnification provided for under this Section 12.1 even if any of them had knowledge at any time of the matter that is later the subject of a claim for indemnity11. (c) The limitations on indemnification contained in Section 12.1(a) and Section 12.1(b) shall not apply in the case of fraud or willful misconduct; provided that in no event shall the aggregate amount for which Parent Group Members shall be indemnified and held harmless in the case of fraud or willful misconduct under Section 12.1 exceed the Merger Consideration.