Common use of Indemnification of Parent Clause in Contracts

Indemnification of Parent. (a) The Company agrees that, after the Effective Time, Parent and the Surviving Corporation and their respective officers, directors, agents and representatives (each hereinafter referred to individually as a "Parent Indemnified Person" and collectively as "Parent Indemnified Persons"), shall be indemnified and held harmless from and against, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred or paid, including reasonable attorneys' fees, costs of investigation or settlement, other professionals' and experts' fees, and court or arbitration costs but specifically excluding consequential damages, lost profits, indirect damages, punitive damages and exemplary damages; provided, that the foregoing exclusion shall not apply to (i) amounts paid to third parties in respect of an indemnifiable claim hereunder or (ii) damages measured based on the difference in value of the Company as represented in this Agreement and the actual value of the Company as a result of any Company Breaches (as hereinafter defined) (hereinafter collectively referred to as "Damages") (but only to the extent provided in Section 9.1(c)), to the extent such Damages are determined by a Final Award, a final order of a court of competent jurisdiction or agreement of Parent and the Stockholder Representative to have arisen out of or to have resulted from, in connection with, or by virtue of facts or circumstances which constitute an inaccuracy, misrepresentation, breach of, default in, or failure to perform, any of the representations, warranties or covenants given or made by the Company in this Agreement or in the certificate delivered pursuant to Section 8.2(c)(i), as qualified by the Schedules hereto as updated from time to time in accordance with the terms of this Agreement, or any Company Transaction Expense to the extent it is not actually reflected in the Company Transaction Expenses used to determine the final Merger Consideration (collectively, "Company Breaches"); provided that if any representation or warranty is qualified in any respect by materiality or reference to Company Material Adverse Effect, for purposes of this paragraph such materiality or Company Material Adverse Effect qualification will in all respects be ignored. For the avoidance of doubt, no Parent Indemnified Person will be entitled to be indemnified pursuant to this Section 9.1 for any liability to the extent (but only to the extent) the Stockholder Representative can demonstrate that the amount of such liability is actually reflected in the Closing Indebtedness, Company Transaction Expenses or Closing Working Capital used to determine the final Merger Consideration or is provided for pursuant to Section 7.12.

Indemnification of Parent. (a) The Company agrees that, From and after the Effective TimeTime and subject to the limitations contained in this Article XI, Parent the Former Company Stockholders will indemnify, on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, agents employees and representatives Affiliates (each hereinafter referred to individually as a "collectively, the “Parent Indemnified Person" Parties”) and collectively as "hold the Parent Indemnified Persons")Parties harmless against any loss, shall be indemnified and held harmless from and againstexpense, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred liability or paidother damage, including reasonable court costs and attorneys' ’ fees, costs of investigation or settlement, other professionals' and experts' fees, and court or arbitration costs but specifically excluding consequential damages, lost profits, indirect damages, punitive damages and exemplary damages; provided, that the foregoing exclusion shall not apply to (i) amounts paid to third parties in respect of an indemnifiable claim hereunder or (ii) damages measured based on the difference in value of the Company as represented in this Agreement and the actual value of the Company as a result of any Company Breaches (as hereinafter defined) (hereinafter collectively referred to as "Damages") (but only to the extent provided in Section 9.1(c)), to the extent such Damages are determined by a Final Award, a final order of a court of competent jurisdiction or agreement of Parent and the Stockholder Representative to have arisen out of or to have resulted from, in connection with, or by virtue of facts or circumstances which constitute an inaccuracy, misrepresentation, breach of, default in, or failure to perform, any of the representationsactual amount of such loss, warranties expense, liability or covenants given other damage (without regard to the use of any multiplier) (collectively “Damages”) that the Parent Indemnified Parties have incurred by reason of (i) the inaccuracy or made breach by the Company of any representation or warranty of the Company contained in Article IV of this Agreement or in the certificate delivered pursuant to Section 8.2(c)(i)9.2(b) of this Agreement (in each case, as qualified by the Schedules hereto as updated from time to time in accordance with the terms of this Agreement, or any Company Transaction Expense to the extent it is not actually reflected in the Company Transaction Expenses used to determine the final Merger Consideration (collectively, "Company Breaches"); provided that if any such representation or warranty is qualified in any respect by materiality or would read if all qualifications as to materiality, including each reference to the defined term “Company Material Adverse Effect,” were deleted therefrom), for purposes or (ii) any of this paragraph the matters set forth on Schedule 4.16 of the Company Disclosure Schedules. All such materiality calculations of Damages shall take into account any offset benefits or Company Material Adverse Effect qualification will insurance proceeds received in all respects be ignored. For connection with the avoidance matter out of doubtwhich such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, no credit or actual reduction in Taxes realized by the Parent Indemnified Person will Parties as a result of such Damages (including any such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages arising under clause (i) above if, prior to the Closing, it had actual knowledge and understanding of that misrepresentation or breach (including potential consequences thereof). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be indemnified entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in the letter dated as of the date hereof, between the Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”); (b) a breach of a representation or warranty shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Parties shall be entitled to receive in satisfaction of claims for indemnification pursuant to this Section 9.1 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for any liability Damages to the extent (but only that the items giving rise to such Damages had been accounted for in any of the adjustments to the extentMerger Consideration pursuant to Sections 3.3(f), (g) and (h); and (e) the Stockholder Representative can demonstrate that Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of such liability is actually reflected all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the Closing Indebtednessaggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible. In no event shall the Former Company Transaction Expenses Stockholders be liable for any punitive, special or Closing Working Capital used exemplary damages except to determine the final Merger Consideration or is provided for pursuant extent actually payable by a Parent Indemnified Party to Section 7.12a third party.

Indemnification of Parent. (a) The Company agrees that, From and after the Effective TimeClosing (but subject to the terms and conditions of this Article 8), the Holders shall, jointly and severally, in accordance with each Holder’s Indemnification Percentage, indemnify and hold the Parent Indemnitees (as defined below) harmless from and against, and pay to the Surviving Corporation applicable Parent Indemnitees the amount of, any and all losses, liabilities, claims, suits, actions, obligations, deficiencies, demands, awards, judgments, damages, interest, fines, penalties, costs and expenses (including costs of investigation and defense and attorneys’ and other professionals’ fees and expenses) whether or not involving a Third Party Claim (hereinafter individually a “Loss” and collectively “Losses”) suffered or incurred by Parent, its Affiliates or any of their respective officers, directors, agents managers, employees, stockholders, members, partners, agents, representatives or successors and representatives assigns (each hereinafter referred to individually as a "the “Parent Indemnified Person" and collectively as "Parent Indemnified Persons")Indemnitees”) attributable to, shall be indemnified and held harmless or arising or resulting from and against, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred or paid, including reasonable attorneys' fees, costs of investigation or settlement, other professionals' and experts' fees, and court or arbitration costs but specifically excluding consequential damages, lost profits, indirect damages, punitive damages and exemplary damages; provided, that the foregoing exclusion shall not apply to (i) amounts paid to third parties any breach of any representation or warranty of the Company contained in Article 3 of this Agreement, (ii) any breach of any covenant of the Company contained in this Agreement, (iii) any proceeding in respect of an indemnifiable claim hereunder any Dissenting Shares and any payments to any Person that was a holder of Company Capital Stock immediately prior to the Effective Time in respect of such Person’s Dissenting Shares, to the extent that such payments exceed the portion of the Final Aggregate Merger Consideration to which such Person would have been entitled pursuant to this Agreement in respect of such Dissenting Shares if such Person had not exercised appraisal or dissenting rights in respect thereof, (iiiv) damages measured based any Holder Transaction Expenses or Indebtedness that were not taken into account in the determination of the Final Aggregate Merger Consideration; (v) any amounts that are required to be repaid under any Government Grant set forth on the difference in value Government Grants Schedule received by the Company prior to the Closing to the extent arising from any action or omission by the Company prior to the Closing; (vi) any claim by any individual set forth on Schedule 5.10 alleging that such individual owns any of the Intellectual Property of the Company to the extent such claim could not have been successfully asserted had such individual signed an Invention Assignment Agreement in the form attached hereto as represented in this Agreement and Exhibit F on or prior to the actual value of Closing; (vii) if the Company has elected to fund the Additional Escrow, any amounts that are required to be repaid under any Government Grant set forth on the Government Grants Schedule received by the Company prior to the Closing to the extent arising from the termination of such a Government Grant as a result of any Company Breaches (as hereinafter defined) (hereinafter collectively referred to as "Damages") (but only to the extent provided in Section 9.1(c)), to the extent such Damages are determined by a Final Award, a final order of a court of competent jurisdiction or agreement of Parent and the Stockholder Representative to have arisen out of or to have resulted from, in connection with, or by virtue of facts or circumstances which constitute an inaccuracy, misrepresentation, breach of, default in, or failure to perform, any of the representations, warranties or covenants given or made by the Company in this Agreement or in the certificate delivered pursuant to Section 8.2(c)(i), as qualified by the Schedules hereto as updated from time to time in accordance with the terms of this Agreement, or any Company Transaction Expense to the extent it is not actually reflected in the Company Transaction Expenses used to determine the final Merger Consideration obtain a consent set forth on Schedule 2.02(e)(viii) and (collectively, "Company Breaches"); provided that if any representation or warranty is qualified in any respect by materiality or reference to Company Material Adverse Effect, for purposes of this paragraph such materiality or Company Material Adverse Effect qualification will in all respects be ignored. For the avoidance of doubt, no Parent Indemnified Person will be entitled to be indemnified pursuant to this Section 9.1 for any liability to the extent (but only to the extentviii) the Stockholder Representative can demonstrate that the amount of such liability is actually reflected in the Closing Indebtedness, Company Transaction Expenses or Closing Working Capital used to determine the final Merger Consideration or is provided for pursuant to Section 7.12indemnification matters set forth on Schedule 8.02(a)(viii).

Indemnification of Parent. (a) The Company agrees that, From and after the Effective TimeTime and subject to the limitations contained in this Article XI, Parent the Former Company Stockholders will indemnify, on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, agents employees and representatives Affiliates (each hereinafter referred to individually as a "collectively, the “Parent Indemnified Person" Parties”) and collectively as "hold the Parent Indemnified Persons")Parties harmless against any loss, shall be indemnified and held harmless from and againstexpense, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred liability or paidother damage, including reasonable court costs and attorneys' ’ fees, costs of investigation or settlement, other professionals' and experts' fees, and court or arbitration costs but specifically excluding consequential damages, lost profits, indirect damages, punitive damages and exemplary damages; provided, that the foregoing exclusion shall not apply to (i) amounts paid to third parties in respect of an indemnifiable claim hereunder or (ii) damages measured based on the difference in value of the Company as represented in this Agreement and the actual value of the Company as a result of any Company Breaches (as hereinafter defined) (hereinafter collectively referred to as "Damages") (but only to the extent provided in Section 9.1(c)), to the extent such Damages are determined by a Final Award, a final order of a court of competent jurisdiction or agreement of Parent and the Stockholder Representative to have arisen out of or to have resulted from, in connection with, or by virtue of facts or circumstances which constitute an inaccuracy, misrepresentation, breach of, default in, or failure to perform, any of the representationsactual amount of such loss, warranties expense, liability or covenants given other damage (without regard to the use of any multiplier) (collectively “Damages”) that the Parent Indemnified Parties have incurred by reason of (i) the inaccuracy or made breach by the Company of any representation or warranty of the Company contained in this Agreement or in the certificate delivered pursuant to Section 8.2(c)(i)9.2(a) or 9.2(b) of this Agreement (in each case, as qualified by the Schedules hereto as updated from time to time in accordance with the terms of this Agreement, or any Company Transaction Expense to the extent it is not actually reflected in the Company Transaction Expenses used to determine the final Merger Consideration (collectively, "Company Breaches"); provided that if any such representation or warranty is qualified in any respect by materiality or would read if all qualifications as to materiality, including each reference to the defined term “Company Material Adverse Effect,” were deleted therefrom), for purposes and (ii) any of this paragraph the matters set forth on Schedule 4.16 of the Company Disclosure Schedules. All such materiality calculations of Damages shall take into account any offset benefits or Company Material Adverse Effect qualification will insurance proceeds received in all respects be ignored. For connection with the avoidance matter out of doubtwhich such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, no credit or actual reduction in Taxes realized by the Parent Indemnified Person will Parties as a result of such Damages (including any such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages to the extent set forth in Section 2 of the letter dated as of the date hereof, between the Company and Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be indemnified entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) a breach of a representation or warranty shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Parties shall be entitled to receive in satisfaction of claims for indemnification pursuant to this Section 9.1 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for any liability Damages to the extent (but only that the items giving rise to such Damages had been accounted for in any of the adjustments to the extentMerger Consideration pursuant to Sections 3.3(f), (g) and (h); (e) the Stockholder Representative can demonstrate that Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the aggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of such liability is actually reflected all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the Closing Indebtednessaggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Transaction Expenses Stockholders be liable for any punitive, special or Closing Working Capital used exemplary damages except to determine the final Merger Consideration or is provided for pursuant extent actually payable by a Parent Indemnified Party to Section 7.12a third party.

Indemnification of Parent. (a) The Company agrees that, after the Effective Time, Parent and the Surviving Corporation and their respective officers, directors, agents and representatives (each hereinafter referred to individually as a "Parent “Buyer Indemnified Person" and collectively as "Parent Indemnified Persons"”), shall but only to the extent of funds on deposit in the Indemnity Escrow and the amounts available under the Indemnity Policy, shall, to the extent provided in this Article VII be indemnified and held harmless from and against, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred or paid, including reasonable attorneys' ’ fees, costs of investigation or settlement, other professionals' ’ and experts' ’ fees, and court or arbitration costs and Taxes of or with respect to the Company or any Company Subsidiary (or of or with respect to any other member of the same consolidated group, or any of their respective predecessors) paid or payable after the Effective Time but specifically excluding consequential damages, lost profits, indirect damages, punitive damages, exemplary damages and exemplary damages; provided, that the foregoing exclusion shall not apply to (i) amounts paid to third parties in respect of an indemnifiable claim hereunder or (ii) damages measured based on the difference in value of the Company as represented in this Agreement and the actual value of the Company any Taxes incurred as a result of any Company Breaches recovery received under this Article VII (as hereinafter defined) (any and all such amounts subject to indemnification hereunder, being hereinafter collectively referred to as "“Damages") (but only to the extent provided in Section 9.1(c)”), to the extent such Damages are determined by a Final Award, a final order of a court of competent jurisdiction or agreement of Parent and the Stockholder Representative to have arisen arise out of or to have resulted result from, in connection with, or by virtue of facts (i) any inaccuracy or circumstances which constitute an inaccuracy, misrepresentation, breach of, default in, or failure to perform, misrepresentation in any of the representations, representations or warranties or covenants given or made by the Company in this Agreement or in the certificate delivered pursuant to (other than Section 8.2(c)(i3.20 and Section 3.23), as qualified by the Schedules hereto as updated from time to time hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation, or (ii) any breach by the Shareholder Representative of any covenant set forth in accordance with the terms of this Agreement, or any Unpaid Company Transaction Expense to the extent it is not actually reflected in the Unpaid Company Transaction Expenses used to determine the final Merger Consideration Consideration, or any inaccuracy or misrepresentation in the Company’s representation and warranty in Section 3.20 or Section 3.23, as qualified by the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation (collectively, "“Company Breaches"”); provided that if Damages shall also include amounts awarded in a Third-Party Claim as consequential damages, lost profits, indirect damages, punitive damages or exemplary damages to any representation Person who is neither a Buyer Indemnified Person or warranty is qualified in any respect by materiality or reference to Company Material Adverse Effect, for purposes of this paragraph such materiality or Company Material Adverse Effect qualification will in all respects be ignoredSeller Indemnified Person (as the case may be) nor an Affiliate thereof. For the avoidance of doubt, no Parent Buyer Indemnified Person will be entitled to be indemnified pursuant to this Section 9.1 7.1 for any liability Damages to the extent (but only to the extent) the Stockholder Representative can demonstrate that the such amount of such liability is actually reflected in the Net Closing Indebtedness, Unpaid Company Transaction Expenses or Closing Working Capital used to determine the final Merger Consideration Consideration. The Company will not be obligated to indemnify any Buyer Indemnified Person for any Damages relating to any inaccuracy, misrepresentation or breach of which Parent had actual knowledge on the date hereof, as and only to the extent that such knowledge is provided for pursuant to Section 7.12supported by the exchange of information during Parent’s due diligence investigation of the Company.