Common use of Indemnification of the Investor Clause in Contracts

Indemnification of the Investor. The Company shall indemnify and hold the Investor and its directors, officers, shareholders, employees and agents (each, an “Investor Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Investor Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement. If any action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing of such action and the facts related thereto, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Investor Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Investor Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing (it being expressly understood by the parties that nothing in this Agreement shall be construed as granting such authorization), (ii) the Company has failed after a reasonable period of time following such Investor Party’s written request that it do so, to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a conflict on any material issue between the position of the Company and the position of such Investor Party. The Company shall not be liable to any Investor Party under this Agreement (x) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (y) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to such Investor Party’s wrongful actions or omissions, or gross negligence or to such Investor Party’s breach of any of the representations, warranties, covenants or agreements made by the Investor in this Agreement.

Indemnification of the Investor. The Company shall will indemnify and hold the Investor and its directors, managers, officers, shareholders, members, partners, employees and agents (each, an “Investor Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation but excluding any lost profits or consequential, indirect or punitive damages, to the extent the same may be awarded under applicable law, that any such Investor Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants covenants, undertakings or agreements made by the Company in this AgreementAgreement or in the other Transaction Documents. If any action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing of such action and the facts related theretowriting, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Investor Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Investor Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing (it being expressly understood by the parties that nothing in this Agreement shall be construed as granting such authorization)writing, (ii) the Company has failed after a reasonable period of time following such Investor Party’s written request that it do so, to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Investor Party. The Company shall will not be liable to any Investor Party under this Agreement (xi) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (yii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to such Investor Party’s wrongful actions or omissions, or gross negligence or to such Investor Party’s breach of any of the representations, warranties, covenants or agreements made by the such Investor in this AgreementAgreement or in the other Transaction Documents. No claim shall be settled or compromised by the Company without the prior written consent of the Investor Party. Save in the event of fraud, the maximum aggregate amount which may be recovered from the Company Party with respect to claims for breaches of representations, warranties, covenants and agreements related to this Agreement and the other Transaction Documents, including under this Section, shall be an amount equal to the Purchase Price.

Indemnification of the Investor. The Company shall will indemnify and hold the Investor Investor, its Affiliates and its and their respective directors, managers, officers, shareholders, members, partners, employees and agents (each, an “Investor Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation but excluding any punitive, special or exemplary damages, to the extent the same may be awarded under applicable law, that any such Investor Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants covenants, undertakings or agreements made by the Company in this AgreementAgreement or in the other Transaction Documents. If any action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing of such action and the facts related theretowriting, and the Company shall have the right (to be effected within 15 days of receipt of a notice of a claim hereunder) to assume the defense thereof with counsel of its own choosingchoosing reasonably acceptable to the Investor; provided that prior to assuming such conduct and control, the Company shall acknowledge in writing that it would have an indemnity obligation for the Losses resulting from such claims as provided under this Section 5.8 and subject to the limitations hereof. Any Investor Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Investor Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing (it being expressly understood by the parties that nothing in this Agreement shall be construed as granting such authorization), (ii) the Company has failed after a reasonable period of time within 15 days following such Investor Party’s written request that it do sonotice of a claim, to assume such defense and to employ counsel or (iiiii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Investor Party, in each such case, the fees and expenses of such counsel shall be at the expense of the Company. The Company shall will not be liable to any Investor Party under this Agreement (x) for any settlement by an Investor Party effected without the Company’s prior written consentconsent (such consent not to be unreasonably withheld, delayed or conditioned; provided, however, that withholding consent to a settlement (1) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff a complete release from all liability in respect of such claim or litigation; or (2) the effect of which is to permit any injunction, declaratory judgment, other order or other equitable relief to be entered, directly or indirectly, against the Company or if applicable, the other members of the Company Group and their respective directors, managers, officers, shareholders, members, partners, employees and agents shall not be unreasonably withheld or delayed; considered unreasonable) or (y) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to such Investor Party’s wrongful actions or omissions, or gross negligence or to such Investor Party’s material breach of any of the representations, warranties, covenants or agreements made by such Investor in this Agreement or in the other Transaction Documents. No claim shall be settled or compromised by the Company without the prior written consent of the Investor Party (such consent not to be unreasonably withheld, delayed or conditioned; provided, however, that withholding consent to a settlement (1) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff a complete release from all liability in respect of such claim or litigation; or (2) the effect of which is to permit any injunction, declaratory judgment, other order or other equitable relief to be entered, directly or indirectly, against the Investor Party shall not be considered unreasonable). Save in the event of fraud (other than fraud that is exclusively based on negligence), the maximum aggregate amount which may be recovered from the Company Group with respect to claims for breaches of representations, warranties, covenants and agreements related to this Agreement and the other Transaction Documents, including under this Section 5.8, shall be an amount equal to the Purchase Price. All payments made to an Investor Party under this Section 5.8 shall be treated as adjustments to the Purchase Price for Tax purposes unless otherwise required by applicable Governmental Requirements. Except for equitable relief or claims for fraud (other than fraud that is exclusively based on negligence) or as otherwise provided in Section 7.2, following the Closing, the indemnification provisions contained in this Section 5.8 will constitute the sole and exclusive recourse and remedy of the Investor Parties for monetary damages with respect to any breach of any of the representations, warranties or covenants contained in this Agreement. The provisions of this Section 5.8 will not however restrict the right of the Investor to seek specific performance or other equitable remedies in connections with any breach of any of the covenants contained in this Agreement.

Indemnification of the Investor. The In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Securities hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the Company shall indemnify and hold harmless the Investor and Investor, each of its directors, officers, shareholdersstockholders, employees members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), and the respective directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Investor Party”) harmless ), each of which shall be an express third-party beneficiary of this Article IX, from any and against all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, expenses (including all judgments, amounts paid in settlementssettlement, court costs and costs, reasonable attorneys’ fees and costs of investigation defense and investigation) (collectively, “Damages”) that any such Investor Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement, the Registration Rights Agreement or in the other Transaction Documents to which it is a party. If any action shall be brought against any Investor Party To the extent that the foregoing undertakings by the Company set forth in respect of which indemnity this Section 9.1 may be sought pursuant to this Agreementunenforceable for any reason, such Investor Party shall promptly notify the Company in writing of such action and the facts related thereto, and the Company shall have make the right maximum contribution to assume the defense thereof with counsel payment and satisfaction of its own choosing. Any each of the Damages which is permissible under applicable law, provided that in no event shall the Investor Party shall have the right be obligated to employ separate counsel contribute any amount in any such action and participate in the defense thereof, but excess of the fees and expenses of such counsel shall be at the expense of such Investor Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing (it being expressly understood by the parties that nothing in this Agreement shall be construed as granting such authorization), (ii) the Company has failed after a reasonable period of time following such Investor Party’s written request that it do so, to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a conflict on any material issue between the position of the Company and the position of such Investor Party. The Company shall not be liable to any Investor Party actually receives under this Agreement (x) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (y) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to such Investor Party’s wrongful actions or omissions, or gross negligence or to such Investor Party’s breach of any of the representations, warranties, covenants or agreements made by the Investor in this Agreement.

Indemnification of the Investor. The Company shall will indemnify and hold the Investor and its directors, officers, shareholders, employees and his agents (each, an “Investor PartyIndemnified Person”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Investor Party Indemnified Person may suffer or incur as a result of or relating to in connection with (i) any action instituted by a third party against an Investor Indemnified Person resulting from or in connection with any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement. If Agreement or (ii) any action shall be brought instituted against an Investor Indemnified Person in any capacity, or any of them or their respective affiliates, by any shareholder of the Company or any other Person who is not an affiliate of such Investor Party in Indemnified Person, with respect to this Agreement or any of which indemnity may be sought pursuant to the transactions contemplated by this Agreement, such Investor Party shall promptly notify the Company including, without limitation, any action resulting from or in writing connection with any untrue statement or alleged untrue statement of such action and the facts related thereto, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Investor Party shall have the right to employ separate counsel in any such action and participate material fact contained in the defense thereofRegistration Statement or Prospectus, but as amended or supplemented, including all other documents filed as a part thereof or incorporated by reference therein, or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the fees and expenses of such counsel shall be at the expense of such Investor Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing (it being expressly understood by the parties that nothing in this Agreement shall be construed as granting such authorization), (ii) the Company has failed after a reasonable period of time following such Investor Party’s written request that it do so, to assume such defense and to employ counsel or (iii) in such action there isstatements therein, in the reasonable opinion of such separate counsel, a conflict on any material issue between the position light of the Company and the position of such Investor Partycircumstances under which they were made, not misleading. The Company shall will not be liable to any Investor Party Indemnified Person under this Agreement (x) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (y) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to such any Investor Party’s wrongful actions or omissions, or gross negligence or to such Investor PartyIndemnified Person’s breach of any of the representations, warranties, covenants or agreements made by such Investor Indemnified Person in this Agreement or attributable to the gross negligence or willful misconduct on the part of such Investor Indemnified Person, or is attributable to any actual or alleged untrue statement made in the Registration Statement or Prospectus in reliance upon and in conformity with written information furnished to the Company by the Investor Indemnified Person specifically for use therein. Notwithstanding anything to the contrary contained herein, the Company shall not be required to indemnify or hold harmless all Investor Indemnified Persons in an aggregate amount exceeding the aggregate purchase price payable by the Investor pursuant to Section 2.1 of this Agreement.

Indemnification of the Investor. The (a) In addition to the indemnity provided in the Investor Rights Agreement, the Company shall will indemnify and hold the Investor and its directors, officers, shareholders, employees and agents (each, an “Investor Party”) Parties harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation Losses that any such Investor Party may suffer or incur as a result of or relating to (i) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreementany Transaction Document or (ii) any Action instituted against the Investor, or any of its Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of the Investor’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings the Investor may have with any such stockholder or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action Action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing of such action and the facts related theretowriting, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Investor Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Investor Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing (it being expressly understood by the parties that nothing in this Agreement shall be construed as granting such authorization)writing, (ii) the Company has failed after a reasonable period of time following such Investor Party’s written request that it do so, to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Investor Party. The Company shall will not be liable to any Investor Party under this Agreement (xi) for any settlement by an Investor Party effected without the Company’s prior written consent which consent, which shall not be unreasonably withheld or delayed; or (yii) to the extent, but only to the extent extent, that a loss, claim, damage or liability Loss is attributable to such Investor Party’s wrongful actions or omissions, or gross negligence or to such any Investor Party’s breach of any of the representations, warranties, covenants or agreements made by the Investor in this AgreementAgreement or in the other Transaction Documents. In addition to the indemnity contained herein, the Company will reimburse each Investor Party for its reasonable legal (to the extent provided herein) and other expenses (including the cost of any investigation, preparation and travel in connection therewith) incurred in connection therewith, as such expenses are incurred.

Indemnification of the Investor. The Company shall will indemnify and hold the Investor and its directors, managers, officers, shareholders, members, partners, employees and agents (each, an “Investor Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Investor Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by any of the Company Entities in this AgreementAgreement or (b) any action instituted against the Investor, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of the Investor, with respect to any of the transactions contemplated by this Agreement or the Additional Note (unless such action is based upon a breach of the Investor’s representation, warranties or covenants under this Agreement or any agreements or understandings the Investor may have with any such stockholder or any violations by the Investor of state or federal securities laws or any conduct by the Investor which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall promptly notify the Company in writing of such action and the facts related theretowriting, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Investor Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Investor Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing (it being expressly understood by the parties that nothing in this Agreement shall be construed as granting such authorization)writing, (ii) the Company has failed after a reasonable period of time following such Investor Party’s written request that it do so, to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Investor Party. The Company shall will not be liable to any Investor Party under this Agreement (xi) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (yii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to such Investor Party’s wrongful actions or omissions, or gross negligence or to such Investor Party’s breach of any of the representations, warranties, covenants or agreements made by the such Investor in this Agreement.

Indemnification of the Investor. The (a) Subject to the provisions of this Section 6.5, the Company shall indemnify and hold the Investor Investor, its Affiliates and its their respective directors, officers, shareholders, members, partners, employees, agents, successors, assigns and each Person who controls the Investor (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling Persons and agents its Affiliates (each, an “Investor Party”) harmless for, from and against any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, interest, awards, penalties, amounts paid in settlements, court costs and reasonable attorneys’ and consultant’s fees and costs of investigation (collectively, “Losses”) that any such Investor Party may suffer or incur as a result of of, or relating to any arising out of, the Company’s breach of any of the its representations, warranties, covenants or agreements obligations under this Agreement (unless such Loss is solely due to the breach of the Investor’s representation set forth in Section 5.2), including, in the case of an Additional Closing, in respect of the certifications made by on the Company in Additional Closing Certificate as well as any Losses such Investor Party may suffer or incur as a result of, or arising out of, the Company’s breach of its representations, warranties, covenants or obligations under this AgreementAgreement that were made on the Closing Date as such Losses relate to the Additional Shares. If any action Action shall be brought against any Investor Party in respect of which indemnity may be sought pursuant to this Agreement, such Investor Party shall reasonably promptly notify the Company in writing of such action and writing; provided that the facts related thereto, and failure to so notify the Company shall have not affect the Investor Party’s right to assume the defense thereof with counsel of its own choosing. Any Investor Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Investor Party indemnification except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing (it being expressly understood by the parties that nothing in this Agreement shall be construed as granting such authorization), (ii) the Company has failed after a reasonable period of time following such Investor Party’s written request that it do so, to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a conflict on any material issue between the position of the Company and the position of such Investor Party. The Company shall not be liable to any Investor Party under this Agreement (x) for any settlement by an Investor Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (y) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to such Investor Party’s wrongful actions or omissions, or gross negligence or to such Investor Party’s breach of any of the representations, warranties, covenants or agreements made by the Investor in this Agreementmaterially prejudiced thereby.