Common use of Indemnification of Stockholders Clause in Contracts

Indemnification of Stockholders. ACQUIROR will indemnify each Stockholder against all claims, actions, suits, proceedings or investigations, losses, damages, liabilities (or actions in respect thereof), costs and expenses (including reasonable fees and expenses of counsel) arising out of or based upon the execution or delivery of this Agreement or the performance by such Stockholder of his or her obligations hereunder and in the event of any such claim, action, suit, proceeding or investigation unless ACQUIROR shall have assumed the defense thereof as provided below, (i) ACQUIROR shall pay as incurred the reasonable fees and expenses of counsel selected by the Stockholder, which counsel shall be reasonably satisfactory to ACQUIROR, promptly as statements therefor are received, and (ii) ACQUIROR will cooperate in the defense of any such matter; provided, however, that ACQUIROR shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided, further, that ACQUIROR shall not be obliged pursuant to this Section 1.7 to pay the fees and disbursements of more than one counsel for all Stockholders in any single action except to the extent that, in the opinion of counsel for the Stockholders two or more of such Stockholders have conflicting interests in the outcome of such action. In the event any person asserts a claim against a Stockholder for which such Stockholder intends to seek indemnification hereunder, such Stockholder shall give prompt notice to ACQUIROR, and shall permit ACQUIROR to assume the defense of any such claim or any litigation resulting therefrom with counsel selected by ACQUIROR, which counsel shall be reasonably acceptable to such Stockholders; provided that such Stockholder may participate in such defense at his or her own expense, and provided further that the failure of any Stockholder to give notice as provided herein shall not relieve ACQUIROR of its obligations under this Section 1.7 except to the extent ACQUIROR is materially prejudiced thereby. ACQUIROR shall not, in the defense of any such claim or litigation, except with the consent of the Stockholder being indemnified, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Stockholder of a release from all liability in respect of such claim or litigation. Each Stockholder shall promptly furnish such information regarding himself or herself or the claim in question as ACQUIROR may reasonably request and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.

Indemnification of Stockholders. ACQUIROR will (a) Pursuant to this Agreement, Parent shall indemnify and hold harmless each Preferred Stockholder and its directors, officers, members, managers, partners, successors, assigns and agents (collectively, the "Stockholder Indemnified Persons") from and against any and all claimsIndemnified Losses incurred or to be incurred by any of them resulting from, actions, suits, proceedings or investigations, losses, damages, liabilities (or actions in respect thereof), costs and expenses (including reasonable fees and expenses of counsel) arising out of, or directly or indirectly connected or related to any breach or violation of any of the Parent's representations, warranties, covenants or based upon the execution or delivery of agreements contained in this Agreement or in the performance Escrow Agreement delivered pursuant hereto, including the provisions of this Article, except that Indemnified Losses arising solely as a result of a breach prior to the Effective Time by the Company or the Stockholder Indemnified Persons shall not be covered by this indemnity. (b) The Stockholder Indemnified Persons shall not be entitled to indemnification for Indemnified Losses under Section 9.4(a) for breaches of the representations and warranties made in Article IV until Indemnified Losses exceed $580,000 in the aggregate (at which point the Parent will be obligated to indemnify the Stockholder Indemnified Persons from and against all Indemnified Losses relating back to the first dollar). (c) Except as provided in Section 9.4(d), the Stockholder Indemnified Persons shall not be entitled to indemnification for Indemnified Losses under this Section 9.4 to the 70. extent such Stockholder of his or her obligations hereunder Indemnified Losses exceed $4,095,000 in the aggregate. (d) Notwithstanding anything to the contrary contained in this Agreement but subject to Section 9.4(c), the limitations contained in Sections 9.4(b) and (c) shall not apply in any respect in the event of Indemnified Losses arising, directly or indirectly, out of fraudulent misrepresentations; fraudulent warranties; willful breaches of representations or warranties; or fraudulent or willful breaches of covenants or agreements, and in each case the indemnity obligations related thereto. Without limiting the generality of the foregoing, in no instance shall any such claim, action, suit, proceeding or investigation unless ACQUIROR shall have assumed Indemnified Losses be included for purposes of crediting such Indemnified Losses against the defense thereof as provided below, (i) ACQUIROR shall pay as incurred the reasonable fees and expenses of counsel selected by the Stockholder, which counsel shall be reasonably satisfactory to ACQUIROR, promptly as statements therefor are received, and (ii) ACQUIROR will cooperate $4,095,000 limitation in the defense of any such matter; provided, however, that ACQUIROR shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheldSection 9.4(c); and provided, further, that ACQUIROR shall not be obliged pursuant to this Section 1.7 to pay the fees and disbursements of more than one counsel for all Stockholders in any single action except to the extent that, in the opinion of counsel for the Stockholders two or more of such Stockholders have conflicting interests in the outcome of such action. In the event any person asserts a claim against a Stockholder for which such Stockholder intends to seek indemnification hereunder, such Stockholder shall give prompt notice to ACQUIROR, and shall permit ACQUIROR to assume the defense of any such claim or any litigation resulting therefrom with counsel selected by ACQUIROR, which counsel shall be reasonably acceptable to such Stockholders; provided that such Stockholder may participate in such defense at his or her own expense, and provided further that the failure of any Stockholder to give notice as provided herein shall not relieve ACQUIROR of its obligations under this Section 1.7 except to the extent ACQUIROR is materially prejudiced thereby. ACQUIROR shall not, in the defense of any such claim or litigation, except with the consent of the Stockholder being indemnified, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Stockholder of a release from all liability in respect of such claim or litigation. Each Stockholder shall promptly furnish such information regarding himself or herself or the claim in question as ACQUIROR may reasonably request and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.

Indemnification of Stockholders. ACQUIROR Parent will indemnify each Stockholder against all claims, actions, suits, proceedings or investigations, losses, damages, liabilities (or actions in respect thereof), costs and expenses (including reasonable fees and expenses of counsel) arising out of or based upon the execution or delivery of this Agreement or the performance by such Stockholder of his or her obligations hereunder and in the event of any such claim, action, suit, proceeding or investigation unless ACQUIROR Parent shall have assumed the defense thereof as provided below, (i) ACQUIROR Parent shall pay as incurred the reasonable fees and expenses of counsel selected by the Stockholder, which counsel shall be reasonably satisfactory to ACQUIRORParent, promptly as statements therefor are received, and (ii) ACQUIROR Parent will cooperate in the defense of any such matter; provided, however, that ACQUIROR Parent shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided, further, that ACQUIROR Parent shall not be obliged pursuant to this Section 1.7 to pay the fees and disbursements of more than one counsel for all Stockholders in any single action except to the extent that, in the opinion of counsel for the Stockholders two or more of such Stockholders have conflicting interests in the outcome of such action. In the event any person asserts a claim against a Stockholder for which such Stockholder intends to seek indemnification hereunder, such Stockholder shall give prompt notice to ACQUIRORParent, and shall permit ACQUIROR Parent to assume the defense of any such claim or any litigation resulting therefrom with counsel selected by ACQUIRORParent, which counsel shall be reasonably acceptable to such Stockholders; provided that such Stockholder may participate in such defense at his or her own expense, and provided further that the failure of any Stockholder to give notice as provided herein shall not relieve ACQUIROR Parent of its obligations under this Section 1.7 except to the extent ACQUIROR Parent is materially prejudiced thereby. ACQUIROR Parent shall not, in the defense of any such claim or litigation, except with the consent of the Stockholder being indemnified, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Stockholder of a release from all liability in respect of such claim or litigation. Each Stockholder shall promptly furnish such information regarding himself or herself or the claim in question as ACQUIROR Parent may reasonably request and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.

Indemnification of Stockholders. ACQUIROR Parent will indemnify ------------------------------- each Stockholder against all claims, actions, suits, proceedings or investigations, losses, damages, liabilities (or actions in respect thereof), costs and expenses (including reasonable fees and expenses of counsel) arising out of or based upon the execution or delivery of this Agreement or the performance by such Stockholder of his or her its obligations hereunder and in the event of any such claim, action, suit, proceeding or investigation unless ACQUIROR Parent shall have assumed the defense thereof as provided below, (i) ACQUIROR Parent shall pay as incurred the reasonable fees and expenses of counsel selected by the Stockholder, which counsel shall be reasonably satisfactory to ACQUIRORParent, promptly as statements therefor are received, and (ii) ACQUIROR Parent will cooperate in the defense of any such matter; provided, however, that ACQUIROR Parent shall not be liable -------- ------- for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided, further, that ACQUIROR Parent shall -------- ------- not be obliged pursuant to this Section 1.7 to pay the fees and disbursements of more than one counsel for all Stockholders in any single action except to the extent that, in the opinion of counsel for the Stockholders Stockholders, two or more of such Stockholders have conflicting interests in the outcome of such action. In the event any person asserts a claim against a Stockholder for which such Stockholder intends to seek indemnification hereunder, such Stockholder shall give prompt notice to ACQUIRORParent, and shall permit ACQUIROR Parent to assume the defense of any such claim or any litigation resulting therefrom with counsel selected by ACQUIRORParent, which counsel shall be Xxxxxxx Xxxx & Xxxxxxxxx (unless such firm shall have a conflict of interest) or other counsel reasonably acceptable to such Stockholders; provided that such Stockholder may participate in such defense at his or her its own expense, and provided further that the failure of any Stockholder to give notice as provided herein shall not relieve ACQUIROR Parent of its obligations under this Section 1.7 except to the extent ACQUIROR Parent is materially prejudiced thereby. ACQUIROR Parent shall not, in the defense of any such claim or litigation, except with the consent of the Stockholder being indemnified, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Stockholder of a release from all liability in respect of such claim or litigation. Each Stockholder shall promptly furnish such information regarding himself or herself itself or the claim in question as ACQUIROR Parent may reasonably request and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.

Indemnification of Stockholders. ACQUIROR will Buyer hereby agrees to indemnify and hold harmless each Stockholder and each of its respective members, managers, partners, directors, officers, employees, stockholders, attorneys and agents, permitted assignees and Affiliates (the “Stockholder Indemnitees”) against all claims, actions, suits, proceedings or investigations, losses, damages, liabilities (or actions and in respect thereof)of any Losses incurred or sustained by any Stockholder Indemnitee as a result of any breach, costs and expenses (including reasonable fees and expenses of counsel) arising out of inaccuracy or based upon the execution or delivery of this Agreement nonfulfillment or the performance by such Stockholder of his alleged breach, inaccuracy or her obligations hereunder and in the event nonfulfillment of any such claimof the representations, action, suit, proceeding or investigation unless ACQUIROR warranties and covenants of Buyer contained herein. The total payments made by Buyer to the Stockholder Indemnitees with respect to Losses shall have assumed not exceed the defense thereof as provided below, (i) ACQUIROR shall pay as incurred the reasonable fees and expenses of counsel selected by the Stockholder, which counsel shall be reasonably satisfactory to ACQUIROR, promptly as statements therefor are received, and (ii) ACQUIROR will cooperate in the defense of any such matterIndemnifiable Loss Limit; provided, however, that ACQUIROR the Stockholder Indemnitees shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided, further, that ACQUIROR shall not be obliged entitled to indemnification pursuant to this Section 1.7 to pay 11.2 unless and until the fees and disbursements aggregate amount of more than one counsel for all Stockholders in any single action except Losses to the extent thatStockholder Indemnitees equals at least the Basket, in at which time, subject to the opinion of counsel Indemnifiable Loss Limit, the Stockholder Indemnitees shall be entitled to indemnification for the Stockholders two or more total amount of such Stockholders have conflicting interests Losses without regard to the Basket. Notwithstanding anything set forth in the outcome this Section 11.2, any Losses incurred by any Stockholder Indemnitee arising out of such action. In the event any person asserts a claim against a Stockholder for which such Stockholder intends to seek indemnification hereunder, such Stockholder shall give prompt notice to ACQUIROR, and shall permit ACQUIROR to assume the defense of any such claim or any litigation resulting therefrom with counsel selected by ACQUIROR, which counsel shall be reasonably acceptable to such Stockholders; provided that such Stockholder may participate in such defense at his or her own expense, and provided further that the failure of Buyer to perform any Stockholder covenant or obligation to give notice as provided herein be performed by it at or after the Closing Date including payment of the Purchase Price, shall not relieve ACQUIROR of its obligations under this Section 1.7 except be subject to or applied against the extent ACQUIROR is materially prejudiced thereby. ACQUIROR shall not, in the defense of any such claim or litigation, except with the consent of the Stockholder being indemnified, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Stockholder of a release from all liability in respect of such claim or litigation. Each Stockholder shall promptly furnish such information regarding himself or herself Indemnifiable Loss Limit or the claim in question as ACQUIROR may reasonably request and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefromBasket, respectively.

Indemnification of Stockholders. ACQUIROR Parent will indemnify each ------------------------------- Stockholder against all claims, actions, suits, proceedings or investigations, losses, damages, liabilities (or actions in respect thereof), costs and expenses (including reasonable fees and expenses of counsel) arising out of or based upon the execution or delivery of this Agreement or the performance by such Stockholder of his or her its obligations hereunder and in the event of any such claim, action, suit, proceeding or investigation unless ACQUIROR Parent shall have assumed the defense thereof as provided below, (i) ACQUIROR Parent shall pay as incurred the reasonable fees and expenses of counsel selected by the Stockholder, which counsel shall be reasonably satisfactory to ACQUIRORParent, promptly as statements therefor are received, and (ii) ACQUIROR Parent will cooperate in the defense of any such matter; provided, however, that ACQUIROR Parent shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided, further, that ACQUIROR Parent shall not be obliged pursuant to this Section 1.7 1.6 to pay the fees and disbursements of more than one ----------- counsel for all Stockholders in any single action except to the extent that, in the opinion of counsel for the Stockholders Stockholders, two or more of such Stockholders have conflicting interests in the outcome of such action. In the event any person asserts a claim against a Stockholder for which such Stockholder intends to seek indemnification hereunder, such Stockholder shall give prompt notice to ACQUIRORParent, and shall permit ACQUIROR Parent to assume the defense of any such claim or any litigation resulting therefrom with counsel selected by ACQUIRORParent, which counsel shall be Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP (unless the stockholders shall determine in good faith such firm shall have a conflict of interest) or other counsel reasonably acceptable to such Stockholders; provided that such Stockholder may participate in such defense at his or her its own expense, and provided further that the failure of any Stockholder to give notice as provided herein shall not relieve ACQUIROR Parent of its obligations under this Section 1.7 1.6 except to the ----------- extent ACQUIROR Parent is materially prejudiced thereby. ACQUIROR Parent shall not, in the defense of any such claim or litigation, except with the consent of the Stockholder being indemnified, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Stockholder of a release from all liability in respect of such claim or litigation. Each Stockholder shall promptly furnish such information regarding himself or herself itself or the claim in question as ACQUIROR Parent may reasonably request and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.

Indemnification of Stockholders. ACQUIROR Parent will indemnify each ------------------------------- Stockholder against all claims, actions, suits, proceedings or investigations, losses, damages, liabilities (or actions in respect thereof), costs and expenses (including reasonable fees and expenses of counsel) arising out of or based upon the execution or delivery of this Agreement or the performance by such Stockholder of his or her obligations hereunder and in the event of any such claim, action, suit, proceeding or investigation unless ACQUIROR Parent shall have assumed the defense thereof as provided below, (i) ACQUIROR Parent shall pay as incurred the reasonable fees and expenses of counsel selected by the Stockholder, which counsel shall be reasonably satisfactory to ACQUIRORParent, promptly as statements therefor are received, and (ii) ACQUIROR Parent will cooperate in the defense of any such matter; provided, however, that ACQUIROR Parent shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); and provided, further, that ACQUIROR Parent shall not be obliged pursuant to this Section 1.7 to pay the fees and disbursements of more than one counsel for all Stockholders in any single action except to the extent that, in the opinion of counsel for the Stockholders two or more of such Stockholders have conflicting interests in the outcome of such action. In the event any person asserts a claim against a Stockholder for which such Stockholder intends to seek indemnification hereunder, such Stockholder shall give prompt notice to ACQUIRORParent, and shall permit ACQUIROR Parent to assume the defense of any such claim or any litigation resulting therefrom with counsel selected by ACQUIRORParent, which counsel shall be reasonably acceptable to such Stockholders; provided that such Stockholder may participate in such defense at his or her own expense, and provided further that the failure of any Stockholder to give notice as provided herein shall not relieve ACQUIROR Parent of its obligations under this Section 1.7 except to the extent ACQUIROR Parent is materially prejudiced thereby. ACQUIROR Parent shall not, in the defense of any such claim or litigation, except with the consent of the Stockholder being indemnified, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Stockholder of a release from all liability in respect of such claim or litigation. Each Stockholder shall promptly furnish such information regarding himself or herself or the claim in question as ACQUIROR Parent may reasonably request and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.