Common use of Indemnification of Stockholders’ Representative Clause in Contracts

Indemnification of Stockholders’ Representative. The Principal Stockholders will indemnify and hold harmless the Stockholders’ Representative for and shall be held harmless against any loss, liability or expense incurred by the Stockholders’ Representative or any of its Affiliates and any of their respective partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Stockholders’ Representative’s conduct as Stockholders’ Representative, other than losses, liabilities or expenses resulting from the Stockholders’ 57 Representative’s gross negligence or willful misconduct in connection with its performance under this Agreement, the Escrow Agreement and the Paying Agent Agreement. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be first deducted from the Stockholders’ Expense Amount and shall thereafter be individual obligations of the Principal Stockholders based on their pro-rata share (according to their respective Closing Cash Consideration Percentages) of such costs, which obligations may be satisfied as contemplated by Section 12.7. The Stockholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Stockholders’ Representative in accordance with such advice, the Principal Stockholders will indemnify the Stockholders’ Representative, solely in its capacity as such, against and from all Losses sustained or incurred by the Stockholders’ Representative or the Principal Stockholders as a result of such reliance or good faith action or omission.

Indemnification of Stockholders’ Representative. The Principal Except as contemplated pursuant to Section 5.1(e), the Stockholders will indemnify and hold harmless Representative shall not be entitled to any fee, commission or other compensation for the Stockholders’ Representative for and performance of its services hereunder, but shall be held harmless against any loss, liability or expense incurred entitled to the payment by the Stockholders’ Representative Company Stockholders of all its expenses incurred as the Stockholders Representative. In connection with this Agreement, and any Ancillary Agreement, and in exercising or failing to exercise all or any of its Affiliates and the powers conferred upon the Stockholders Representative hereunder (i) the Stockholders Representative shall incur no responsibility whatsoever to any Company Stockholder by reason of their respective partnersany error in judgment or other act or omission performed or omitted hereunder or in connection with any such Ancillary Agreement, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives excepting only responsibility for any act or controlling persons, in each case relating failure to the Stockholders’ Representative’s conduct as Stockholders’ Representative, other than losses, liabilities or expenses resulting from the Stockholders’ 57 Representative’s act which represents gross negligence or willful misconduct in connection with its performance under this Agreementmisconduct, and (ii) the Escrow Agreement and the Paying Agent Agreement. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) Stockholders Representative shall be first deducted from the Stockholders’ Expense Amount and shall thereafter be individual obligations of the Principal Stockholders based on their pro-rata share (according entitled to their respective Closing Cash Consideration Percentages) of such costs, which obligations may be satisfied as contemplated by Section 12.7. The Stockholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders Representative pursuant to such advice shall in no event subject the Stockholders Representative to liability to any Company Stockholders. Each of the Company Stockholders shall indemnify, pro rata based upon such Person’s Pro Rata Share, the Stockholders Representative against all Losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of or in connection with any Claim or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders Representative hereunder or otherwise in his capacity as the Stockholders Representative. The foregoing indemnification shall not apply in the event of any Claim which finally adjudicates the liability of the Stockholders Representative hereunder for anything doneits gross negligence or willful misconduct. In the event of any indemnification hereunder, omitted upon written notice from the Stockholders Representative to the Company Stockholders as to the existence of a deficiency toward the payment of any such indemnification amount, each of the Company Stockholders shall promptly deliver to the Stockholders Representative full payment of his or suffered in good faith by her Pro Rata Share of the Stockholders’ Representative amount of such deficiency, in accordance with such advice, the Principal Stockholders will indemnify the Stockholders’ Representative, solely in its capacity as such, against and from all Losses sustained or incurred by the Stockholders’ Representative or the Principal Stockholders as a result of such reliance or good faith action or omissionPerson’s Pro Rata Share.

Indemnification of Stockholders’ Representative. Certain Stockholders have entered into an engagement agreement (the “Stockholders’ Representative Engagement Agreement”) with the Stockholders’ Representative to provide direction to the Stockholders’ Representative in connection with its services under this Agreement, the Escrow and Payments Agreements and the Stockholders’ Representative Engagement Agreement (such Stockholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Stockholders’ Representative Group”) will incur any liability of any kind with respect to any action or omission by the Stockholders’ Representative in connection with the Stockholders’ Representative’s services pursuant to this Agreement, the Stockholders’ Representative Engagement Agreement and the other Transaction Agreements to which it is a party, except in the event of Liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Principal Stockholders’ Representative Group shall not be liable to the Stockholders will indemnify for any action or omission pursuant to the advice of counsel. The Stockholders will, severally as determined in accordance with the Allocation Schedule (and not jointly), indemnify, defend and hold harmless the Stockholders’ Representative for Group from and shall be held harmless against any and all losses, Liabilities, and costs arising out of or in connection with the Stockholders’ Representative’s execution and performance of the Stockholders’ Representative Engagement Agreement, this Agreement and the other Transaction Agreements or ancillary agreements thereto to which it is a party, in each case as such loss, Liability or cost is suffered or incurred; provided that in the event that any such loss, Liability or cost is finally adjudicated to have been directly caused by the fraud, gross negligence, bad faith or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Loss to the extent attributable to such fraud, gross negligence, bad faith or willful misconduct. If not paid directly to the Stockholders’ Representative by the Stockholders, any such Losses may be recovered by the Stockholders’ Representative from (1) the funds in the Stockholders’ Representative Retention Account and (2) the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Stockholders; provided that, while this Section 13.03 allows the Stockholders’ Representative to be paid from the Representative Amount and the Escrow Amount, this does not relieve the Stockholders from their obligation to promptly pay such losses, Liabilities and costs as they are suffered or incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its own funds or otherwise incur any financial liability on behalf of the Stockholders or expense otherwise. Furthermore, the Stockholders’ Representative shall not be required to take any action unless the Stockholders’ Representative has been provided with funds, security or indemnities which, in its reasonable determination, are sufficient to protect the Stockholders’ Representative against the costs, expenses and liabilities which may be incurred by the Stockholders’ Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or any of its Affiliates and any of their respective partnerslimitations on indemnity or, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating solely with respect to the Stockholders’ Representative’s conduct as Stockholders’ Representative, other than losses, liabilities or expenses resulting from non-recourse provisions set forth elsewhere in this Agreement are not intended to be applicable to the Stockholders’ 57 Representative’s gross negligence or willful misconduct in connection with its performance under this Agreement, the Escrow Agreement and the Paying Agent Agreement. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be first deducted from the Stockholders’ Expense Amount and shall thereafter be individual obligations of the Principal Stockholders based on their pro-rata share (according indemnities provided to their respective Closing Cash Consideration Percentages) of such costs, which obligations may be satisfied as contemplated by Section 12.7. The Stockholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Stockholders’ Representative in accordance with such advice, this Section 13.03. The Stockholders acknowledge and agree that the Principal Stockholders foregoing indemnities and immunities will indemnify survive the Stockholders’ Representative, solely in its capacity as such, against and from all Losses sustained resignation or incurred by removal of the Stockholders’ Representative or and the Principal Stockholders as a result Closing and/or the termination of such reliance or good faith action or omissionthis Agreement and the Escrow and Payments Agreements.

Indemnification of Stockholders’ Representative. The Principal Stockholders will Each Common Equity Holder hereby agrees to indemnify and hold harmless the Stockholders’ Representative for and shall be held harmless against any and all loss, liability or and/or expense (including, without limitation, (i) legal, accounting and other advisors’ fees and expenses and (ii) all costs incurred in enforcing this right of indemnification) (collectively, the “Indemnifiable Costs”) incurred by the Stockholders’ Representative or any of its Affiliates and any of their respective partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Stockholders’ Representative’s conduct as Stockholders’ Representative, other than losses, liabilities or expenses resulting from the Stockholders’ 57 Representative’s gross negligence or willful misconduct in connection with its performance as Stockholders’ Representative under this Agreementthe Transaction Agreements. Each Common Equity Holder hereby agrees to pay to the Stockholders’ Representative, upon demand, such Common Equity Holder’s Responsible Pro Rata Portion of Indemnifiable Costs. Notwithstanding the foregoing, each Common Equity Holder hereby agrees that any distribution from the Escrow Account to the Stockholders’ Representative for further distribution to such Common Equity Holder in accordance with the terms of the Escrow Agreement may be reduced by such Common Equity Holder’s Responsible Pro Rata Portion of (x) any then outstanding and unpaid Indemnifiable Costs as of such escrow release date and (y) if there are pending Indemnity Claim(s) as of such escrow release date, an amount reasonably determined by the Paying Agent AgreementStockholders’ Representative necessary to reimburse the Stockholders’ Representative for its Indemnifiable Costs expected to be incurred in connection with defending such Indemnity Claims (the “Escrow Payment Reduction Amount”); provided, that if the Escrow Payment Reduction Amount is insufficient to cover the entire amount of such Common Equity Holder’s Pro Rata Portion of Indemnifiable Costs, such Common Equity Holder shall still be liable for the remaining portion of its Responsible Pro Rata Portion of Indemnifiable Costs. This indemnification obligation shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be first deducted from the Stockholders’ Expense Amount and shall thereafter be individual obligations of the Principal Stockholders based on their pro-rata share (according to their respective Closing Cash Consideration Percentages) of such costs, which obligations may be satisfied as contemplated by Section 12.7. The Stockholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Stockholders’ Representative in accordance with such advice, the Principal Stockholders will indemnify the Stockholders’ Representative, solely in its capacity as such, against and from all Losses sustained or incurred by the Stockholders’ Representative or the Principal Stockholders as a result of such reliance or good faith action or omission.

Indemnification of Stockholders’ Representative. The Principal Stockholders’ Representative shall incur no liability to the Stockholders will indemnify and hold harmless or the Escrow Agent or any other person with respect to any action taken or suffered by it in reliance upon any note, direction, instruction, consent, statement or other documents reasonably believed by the Stockholders’ Representative to be genuinely and duly authorized by at least a majority in interest of the Stockholders (or the successors or assigns thereto), nor for other action or inaction taken or omitted in good faith in connection herewith or with the Escrow Agreement, in any case except for liability to the Stockholders for its own gross negligence or willful misconduct. The Stockholders’ Representative shall be indemnified for and shall be held harmless against any loss, liability or expense incurred by the Stockholders’ Representative or any of its Affiliates and any of their respective partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Stockholders’ Representative’s conduct as Stockholders’ Representative, other than such losses, liabilities or expenses resulting from the Stockholders’ 57 Representative’s gross negligence or willful misconduct in connection with its performance under this Agreement, the Escrow Agreement and the Paying Agent Escrow Agreement. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be first deducted paid from the Stockholders’ Expense Amount and shall thereafter be individual obligations principal portion of the Principal Reimbursement Fund (or, to the extent the Reimbursement Fund is insufficient to satisfy such costs and expenses, from the Escrow Fund). For all purposes hereunder, a majority in interest of the Stockholders based shall be determined on their pro-rata share the basis of each Stockholder’s ownership of Company Common Stock immediately prior to the Effective Time (according assuming the exercise or conversion of all Company Preferred Stock and Company Warrants outstanding immediately prior to their respective Closing Cash Consideration Percentages) of such costs, which obligations may be satisfied as contemplated by Section 12.7the Effective Time). The Stockholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Stockholders’ Representative in accordance with such advice, the Principal Stockholders will indemnify the Stockholders’ Representative, solely in its capacity as such, against and from all Losses sustained Representative shall not be liable to the Stockholders or incurred by the Escrow Agent or any other person. In no event shall the Stockholders’ Representative be liable hereunder or in connection herewith for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Principal Stockholders as a result of such reliance or good faith action or omissionReimbursement Fund or, to the extent provided for herein, the Escrow Fund.