Common use of Indemnification of Parent Clause in Contracts

Indemnification of Parent. From and after the Closing, the Escrow Participants shall, severally and not jointly, indemnify and hold harmless Parent, its officers, directors and Affiliates and their respective successors and permitted assigns (each, an “Indemnified Party”) from and against and in respect of any and all out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “Losses”) incurred or sustained by Parent as a result of (a) any breach or inaccuracy of any of the representations or warranties set forth in Article V (as modified by the Schedules) or in the Company Certificate, in each case, for the avoidance of doubt, as of the date of this Agreement or the Closing Date or such other date as expressly set forth in such representation or warranty; or (b) any breach or nonfulfillment of any covenants of the Company contained in this Agreement to be performed at or prior to the Closing Date. Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participants under this Agreement, including this Article XI or otherwise in connection with the transactions contemplated by this Agreement, shall in no event exceed an amount equal to (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Parent shall not be entitled to indemnification pursuant to this Section 11.1 unless and until the aggregate amount of Losses incurred by Parent equals at least $1,612,500 (the “Basket”), at which time, subject to the Indemnifiable Loss Limit, Parent shall be entitled to indemnification for any and all Losses above the Basket. The Escrow Participants shall have no liability or obligation to indemnify Parent or any other Indemnified Party under this Agreement with respect to the breach or inaccuracy of any representation or warranty, based on any matter, fact or circumstance Known by Parent on the date of this Agreement.

Indemnification of Parent. From and after the ClosingClosing Date, the Escrow Participants shall, Founders shall severally and not jointlyjointly (and not jointly and severally), in proportion to their relative ownership of Voting Common Stock as of immediately prior to the Closing, indemnify and hold harmless Parent, Merger Sub, its officersAffiliates (including, directors after the Closing, the Surviving Company and Affiliates its subsidiaries) and their respective successors and permitted assigns (eachcollectively, an the “Parent Indemnified PartyParties”) from and against and in respect of Losses incurred by any and all out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “Losses”) incurred or sustained by Parent as a Indemnified Party that result of from (a) any Founder intentionally taking any action, or intentionally failing to take any action, that causes a breach or inaccuracy of any of the representations covenant, agreement or warranties set forth in Article V (as modified obligation required to be performed pursuant to this Agreement by the Schedules) or in Company prior to the Company Certificate, in each caseClosing (and if only one Founder meets the foregoing standard only such Founder shall be liable hereunder with respect to the applicable claim but such Founder, for the avoidance of doubt, as shall be liable for 100% of the date of this Agreement or applicable Losses, subject to the Closing Date or such other date as expressly limitations set forth in such representation or warranty; this Article VIII) or (b) any breach the matters set forth on Schedule 8.2 or nonfulfillment of any covenants of Schedule 8.2A; provided, however, that the Company contained Parent Indemnified Parties’ rights to assert claims for Losses pursuant to this Section 8.2 shall be subject to the limitations set forth in this Agreement to be performed at or prior Article VIII (except, to the Closing Dateextent applicable, as provided in Schedule 8.2 or Schedule 8.2A). Notwithstanding anything The Founders in their sole discretion may elect to satisfy any indemnification obligation under this Agreement Section 8.2 by forfeiting shares of Parent Common Stock then held by the Founders having an aggregate value equal to the contraryamount of such indemnification obligation, with such shares valued at the maximum liability greater of the Escrow Participants under this Agreement, including this Article XI or otherwise in connection with the transactions contemplated by this Agreement, shall in no event exceed an amount equal to (i) the Escrow Share Value, multiplied by Parent Stock VWAP and (ii) the Escrow Shares average of the daily volume weighted average price per share of Parent Common Stock on the New York Stock Exchange (or on the “Indemnifiable Loss Limit”). principal exchange on which the shares of Parent shall not be entitled Common Stock are then traded) for the thirty (30) consecutive days on which the New York Stock Exchange (or such other exchange) is open for trading ending on the last such day immediately prior to indemnification pursuant to this Section 11.1 unless and until the aggregate amount of Losses incurred by Parent equals at least $1,612,500 (the “Basket”), at which time, subject to the Indemnifiable Loss Limit, Parent shall be entitled to indemnification for any and all Losses above the Basket. The Escrow Participants shall have no liability or obligation to indemnify Parent or any other Indemnified Party under this Agreement with respect to the breach or inaccuracy of any representation or warranty, based on any matter, fact or circumstance Known by Parent on the date of this Agreementsuch forfeiture.

Indemnification of Parent. From Subject to the terms and conditions of this Article XI and from and after the ClosingClosing Date, the Escrow Participants shall, Company Securityholders (the “Indemnifying Parties”) hereby jointly and severally and not jointly, agree to indemnify and hold harmless Parent, its officers, directors and Affiliates and their respective successors and permitted assigns Parent (each, an the “Indemnified Party”) from and ), against and in respect of any and all out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, each a “Loss” and collectively “Losses”) incurred or sustained by Parent as a result the Parent, the Surviving Corporation and/or any of their respective Affiliates and Subsidiaries, to the extent resulting from (a) any breach or inaccuracy of in any of the representations representation or warranties warranty set forth in Article V (as modified by IV or the Schedules) or certificate delivered in the Company Certificate, in each case, for the avoidance of doubt, as satisfaction of the date of this Agreement or the Closing Date or such other date as expressly condition set forth in such representation or warranty; Section 9.2(e) or (b) any breach or nonfulfillment of any covenants covenant of the Company contained in this Agreement to be performed at Agreement. Except for claims against the Company for intentional fraud, willful misconduct or prior to the Closing Date. Notwithstanding anything in this Agreement to the contraryany breach of Section 4.9(b) or Section 4.9(c), the maximum liability of the Escrow Participants under this Agreement, including this Article XI or otherwise in connection with the transactions contemplated by this Agreement, shall in no event exceed an amount equal to (i) the Escrow Share ValueIndemnified Party shall not assert any claim under the foregoing clause (a) of this Section 11.1, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Parent and shall not be entitled to indemnification pursuant to this Section 11.1 indemnification, (A) in respect of any such claim (or series of claims arising out of the same or similar facts) unless and until the aggregate amount of Losses incurred by Parent for such claim (or such series of claims) equals or exceeds $250,000, and (B) unless and until Indemnified Party shall have paid, incurred, suffered or sustained at least the aggregate amount of all Losses indemnifiable hereunder in accordance with the immediately preceding clause (A) exceeds an amount equal to $1,612,500 1,000,000 (the “BasketIndemnity Threshold”), at in which timeevent the Indemnifying Parties shall be responsible for all such Losses from the first dollar regardless of such Indemnity Threshold; provided, that, the threshold set forth in clause (A) of this sentence shall continue to apply to each claim (or series of claims arising out of the same or similar facts) made subsequent to the satisfaction of the Indemnity Threshold pursuant to clause (B) of this sentence, and (ii) any liability incurred pursuant to the terms of this Article XI (subject to the Indemnifiable Loss Limit, Parent immediately preceding clause (i)) shall be entitled to indemnification for any and all Losses above paid exclusively from the Basket. The Indemnification Escrow Participants shall have no liability or obligation to indemnify Parent or any other Indemnified Party under this Agreement Shares valued at the VWAP in accordance with respect to the breach or inaccuracy terms of any representation or warranty, based on any matter, fact or circumstance Known by Parent on the date of this Indemnification Escrow Agreement.

Indemnification of Parent. From Subject to the terms and conditions of this Article XI and from and after the ClosingClosing Date, the Escrow Participants shall, Company Securityholders (the “Indemnifying Parties”) hereby jointly and severally and not jointly, agree to indemnify and hold harmless Parent, its officers, directors and Affiliates and their respective successors and permitted assigns Parent (each, an the “Indemnified Party”) from and ), against and in respect of any and all out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, each a “Loss” and collectively “Losses”) incurred or sustained by Parent as a result the Parent, the Surviving Corporation and/or any of their respective Affiliates and Subsidiaries, to the extent resulting from (a) any breach or inaccuracy of in any of the representations representation or warranties warranty set forth in Article V (as modified by IV or the Schedules) or certificate delivered in the Company Certificate, in each case, for the avoidance of doubt, as satisfaction of the date of this Agreement or the Closing Date or such other date as expressly condition set forth in such representation or warranty; Section 9.2(e) or (b) any breach or nonfulfillment of any covenants covenant of the Company contained in this Agreement to be performed at Agreement. Except for claims against the Company for intentional fraud, willful misconduct or prior to the Closing Date. Notwithstanding anything in this Agreement to the contraryany breach of Section 4.9(b) or Section 4.9(c), the maximum liability of the Escrow Participants under this Agreement, including this Article XI or otherwise in connection with the transactions contemplated by this Agreement, shall in no event exceed an amount equal to (i) the Escrow Share ValueIndemnified Party shall not assert any claim under the foregoing clause (a) of this Section 11.1, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Parent and shall not be entitled to indemnification pursuant to this Section 11.1 indemnification, (A) in respect of any such claim (or series of claims arising out of the same or similar facts) unless the aggregate amount of Losses for such claim (or such series of claims) equals or exceeds $50,000, and (B) unless and until the aggregate amount of all Losses incurred by Parent equals at least indemnifiable hereunder in accordance with the immediately preceding clause (A) exceeds an amount equal to $1,612,500 250,000 (the “BasketIndemnity Threshold”), at in which timeevent the Indemnifying Parties shall be responsible for all such Losses from the first dollar regardless of such Indemnity Threshold; provided, that, the threshold set forth in clause (A) of this sentence shall continue to apply to each claim (or series of claims arising out of the same or similar facts) made subsequent to the satisfaction of the Indemnity Threshold pursuant to clause (B) of this sentence, and (ii) any liability incurred pursuant to the terms of this Article XI (subject to the Indemnifiable Loss Limit, Parent immediately preceding clause (i)) shall be entitled to indemnification for any and all Losses above paid exclusively from the Basket. The Indemnification Escrow Participants shall have no liability or obligation to indemnify Parent or any other Indemnified Party under this Agreement Shares valued at the VWAP in accordance with respect to the breach or inaccuracy terms of any representation or warranty, based on any matter, fact or circumstance Known by Parent on the date of this Indemnification Escrow Agreement.

Indemnification of Parent. From and after the Closing, the Escrow Participants shall, severally and not jointly, indemnify and hold harmless Parent, its officers, directors and Affiliates and their respective successors and permitted assigns (each, an “Indemnified Party”) from and against and in respect of any and all out-of-pocket loss, cost, payment, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “Losses”) incurred or sustained by Parent as a result of (a) any breach or inaccuracy of any of the representations or warranties set forth in Article V ‎V (as modified by the Schedules) or in the Company Certificate, in each case, for the avoidance of doubt, as of the date of this Agreement or the Closing Date or such other date as expressly set forth in such representation or warranty; or (b) any breach or nonfulfillment of any covenants of the Company contained in this Agreement to be performed at or prior to the Closing Date. Notwithstanding anything in this Agreement to the contrary, the maximum liability of the Escrow Participants under this Agreement, including this Article XI ‎XI or otherwise in connection with the transactions contemplated by this Agreement, shall in no event exceed an amount equal to (i) the Escrow Share Value, multiplied by (ii) the Escrow Shares (the “Indemnifiable Loss Limit”). Parent shall not be entitled to indemnification pursuant to this Section 11.1 ‎11.1 unless and until the aggregate amount of Losses incurred by Parent equals at least $1,612,500 (the “Basket”), at which time, subject to the Indemnifiable Loss Limit, Parent shall be entitled to indemnification for any and all Losses above the Basket. The Escrow Participants shall have no liability or obligation to indemnify Parent or any other Indemnified Party under this Agreement with respect to the breach or inaccuracy of any representation or warranty, based on any matter, fact or circumstance Known by Parent on the date of this Agreement.