Common use of Indemnification of Stockholders’ Representative Clause in Contracts

Indemnification of Stockholders’ Representative. Each Common Equity Holder hereby agrees to indemnify and hold harmless the Stockholders’ Representative against any and all loss, liability 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’ Representative’s gross negligence or willful misconduct in connection with its performance as Stockholders’ Representative under the 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 Stockholders’ 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.

Indemnification of Stockholders’ Representative. Each Common Equity Holder hereby agrees to indemnify and hold harmless The Stockholders’ Representative may act upon any instrument or other writing believed by the Stockholders’ Representative against any in good faith to be genuine and to be signed or presented by the proper person and shall not be liable in connection with the performance by him of his duties pursuant to the provisions of the Escrow Agreement, except for his own willful misconduct or gross negligence. The Stockholders’ Representative shall be, and hereby is, indemnified and held harmless, jointly and severally, by the Stockholders from all losslosses, liability and/or expense (including, without limitation, (i) legal, accounting and other advisors’ fees costs and expenses and (iiincluding attorneys’ fees) all costs incurred in enforcing this right of indemnification) (collectively, the “Indemnifiable Costs”) that may be incurred by the Stockholders’ Representative or any as a result 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’ Representativeperformance of his duties under this Agreement and the Escrow Agreement, other than losses, liabilities or expenses resulting from provided that the Stockholders’ Representative’s gross negligence Representative shall not be entitled to indemnification for losses, costs or willful misconduct in connection with its performance as expenses that result from any action taken or omitted by the Stockholders’ Representative under the Transaction Agreementsas a result of his willful misconduct or gross negligence. Each Common Equity Holder hereby agrees to pay to the The Stockholders’ RepresentativeRepresentative Escrow Amount, plus any additional shares as may be issued upon demandany stock split, such Common Equity Holder’s Responsible Pro Rata Portion of Indemnifiable Costs. Notwithstanding stock dividend or recapitalization effected by Martek after the foregoing, each Common Equity Holder hereby agrees that any distribution from the Escrow Account Effective Time with respect to the Stockholders’ Representative for further distribution Escrow Amount, will be deposited with and will be held by First Union National Bank (or another institution acceptable to such Common Equity Holder in accordance with the terms of Company and 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(sStockholders’ Representative) as of such escrow release date, an amount reasonably determined by agent for the Stockholders’ Representative necessary Escrow Fund, such deposit to reimburse constitute an escrow fund (the “Stockholders’ Representative Escrow Fund”) to be governed by the terms set forth in an escrow agreement to be agreed to by the Company and 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 AgreementRepresentative.

Indemnification of Stockholders’ Representative. Each Common Equity Holder hereby agrees The Stockholders’ Representative shall incur no liability to indemnify and hold harmless the Stockholders 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 and all loss, liability and/or 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 such losses, liabilities or expenses resulting from the Stockholders’ Representative’s gross negligence or willful misconduct in connection with its performance as Stockholders’ Representative under the 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 this Agreement and 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 Stockholders’ 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 CostsAgreement. 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 paid from the principal portion of the 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 shall be determined on the basis of each Stockholder’s ownership of Company Common Stock immediately prior to the Effective Time (assuming the exercise or conversion of all Company Preferred Stock and Company Warrants outstanding immediately prior to the 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 Stockholders’ Representative shall not be liable to the Stockholders or 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 Reimbursement Fund or, to the extent provided for herein, the Escrow Fund.

Indemnification of Stockholders’ Representative. Each Common Equity Holder hereby agrees to indemnify and hold harmless Certain Stockholders have entered into an engagement agreement (the “Stockholders’ Representative Engagement Agreement”) with the Stockholders’ Representative against 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 and all loss, liability and/or expense (including, without limitation, (i) legal, accounting and other advisors’ fees and expenses and (ii) all costs incurred in enforcing this right member of indemnification) the Advisory Group (collectively, the “Indemnifiable CostsStockholders’ Representative Group”) incurred will incur any liability of any kind with respect to any action or omission 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 connection with the Stockholders’ Representative’s conduct as services pursuant to this Agreement, the Stockholders’ RepresentativeRepresentative Engagement Agreement and the other Transaction Agreements to which it is a party, other than losses, liabilities or expenses except in the event of Liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct misconduct. The Stockholders’ Representative Group shall not be liable to the Stockholders 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 Group from and against any and all losses, Liabilities, and costs arising out of or in connection with its the Stockholders’ Representative’s execution and performance as of the Stockholders’ Representative under Engagement Agreement, this Agreement and the other Transaction Agreements. Each Common Equity Holder hereby agrees Agreements or ancillary agreements thereto to pay 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, upon demandthe Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Loss to the extent attributable to such fraud, such Common Equity Holder’s Responsible Pro Rata Portion of Indemnifiable Costsgross negligence, bad faith or willful misconduct. Notwithstanding the foregoing, each Common Equity Holder hereby agrees that any distribution from the Escrow Account If not paid directly to the Stockholders’ Representative for further distribution to by the Stockholders, any such Common Equity Holder in accordance with the terms of the Escrow Agreement Losses 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 recovered by the Stockholders’ Representative necessary to reimburse from (1) the funds in the Stockholders’ Representative for its Indemnifiable Costs expected 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 incurred in connection with defending such Indemnity Claims (paid from the “Escrow Payment Reduction Amount”); provided, that if Representative Amount and the Escrow Payment Reduction Amount is insufficient Amount, this does not relieve the Stockholders from their obligation to cover promptly pay such losses, Liabilities and costs as they are suffered or incurred, nor does it prevent the entire amount 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 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 Common Equity Holder’s Pro Rata Portion actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on indemnity or, solely with respect to the Stockholders, non-recourse provisions set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative in this Section 13.03. The Stockholders acknowledge and agree that the foregoing indemnities and immunities will survive the resignation or removal 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 Stockholders’ Representative and the Closing and/or the termination of this AgreementAgreement and the Escrow and Payments Agreements.