Common use of Indemnification Provisions for Buyer’s Benefit Clause in Contracts

Indemnification Provisions for Buyer’s Benefit. (i) Subject to the provisions of this Section 8, including the limitations set forth in this Section 8(b)(i), and provided that Buyer makes a written claim for indemnification pursuant to Section 8(d) within the applicable survival period, from and after the Closing each Seller and each Optionholder, severally and not jointly, will indemnify Buyer from and against such Seller’s or Optionholder’s Allocable Portion of any Adverse Consequences Buyer shall suffer resulting from (A) the breach of any representation or warranty made by the Company in Section 4 of this Agreement; (B) any breach by the Company of its agreement to pay the Option Cancellation Payments to the Optionholders at Closing in accordance with Section 2(g)(ii)(x) and the Sale Bonuses to the Sale Bonus Recipients at Closing in accordance with Section 2(h); (C) any breach by the Sellers’ Representative, in its capacity as Sellers’ Representative, under this Agreement or the Escrow Agreement, including any breach under Section 2(d); (D) any claims by any Seller to the extent relating to or arising out of any error in any payment made to the Sellers by the Sellers’ Representative, any Liabilities to the extent in connection with, as a result of, or arising out of any payment made by Buyer, the Company or any of their Subsidiaries or Affiliates in accordance with the terms of this Agreement or as directed in writing by the Sellers’ Representative, or any claims by any Seller to the extent relating to or arising out of any misallocation of the Purchase Price among the Sellers by the Sellers’ Representative; and (E) the matters set forth on Schedule 8(b)(i)(E); provided, however, that no Seller or Optionholder shall have any obligation to indemnify Buyer from and against any Adverse Consequences pursuant to Section 8(b)(i)(A): (1) until Buyer has suffered Adverse Consequences by reason of all such breaches in excess of a $550,000 aggregate deductible (after which point Sellers and Optionholders will be obligated to indemnify Buyer from and against such Adverse Consequences in excess of $250,000) or thereafter (2) to the extent Buyer has received indemnity payments hereunder in the amount of $5,750,000 in the aggregate (after which point Sellers and Optionholders will have no obligation to indemnify Buyer from and against further such Adverse Consequences); provided, however, that Sellers and Optionholders shall not be liable to Buyer for any claim if the Adverse Consequences relating to such claim are less than $25,000 (each a “Minor Claim”); and provided, further, that Minor Claims shall not be included in the computation of the aggregate deductible under clause (1) (and shall not be included in the computation of the amount described in the parenthetical within clause (1)). Notwithstanding anything to the contrary set forth herein, claims for indemnification made pursuant to this Section 8(b)(i) with respect to Adverse Consequences resulting from (x) any breaches of Section 4(a) (Organization, Qualification and Corporate Power), Section 4(b) (Capitalization), Section 4(e) (Brokers’ Fees) or Section 4(k) (Tax Matters), or (y) the fraud of any Seller, Optionholder or the Company, shall not be subject to the foregoing limitations set forth in clauses (1), (2), and the proviso relating to Minor Claims, in each case within this Section 8(b)(i); provided, however, that notwithstanding anything herein to the contrary, except in the case of fraud or intentional misrepresentation, no Seller’s or Optionholder’s aggregate liability for Adverse Consequences under any provision of this Agreement shall exceed such Seller’s or Optionholder’s Allocable Portion of the Purchase Price.

Indemnification Provisions for Buyer’s Benefit. Each of Sellers (the “Seller Indemnifying Parties”) shall jointly and severally indemnify, defend and hold harmless the Target Entities, Buyer and each Affiliate of Buyer and the Target Entities and their respective employees, directors, managers, officers, representatives and stockholders (excluding Sellers) (collectively, the “Buyer Indemnified Parties”) from and against the entirety of any Damages any Buyer Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of or caused by (i) Subject any breach (or in the event any third party alleges facts that, if true, would mean any of the Target Entities or any Seller has breached) or inaccuracy of any of the Target Entities’ or any Seller’s representations, warranties or covenants contained herein (other than the covenants in Section 2.1 above and the representations and warranties in Section 3.1 above) or in any other Transaction Document or in any schedule, exhibit, certificate or agreement delivered pursuant hereto or thereto, (ii) any Target Expenses not deducted from the Purchase Price that is paid by Buyer, (iii) any additional payment owed to Direct General arising out of the provisions of this Section 8, including Direct General Documents that was not included in the limitations set forth in this Section 8(b)(i), DG Liability Amount and (iv) the matters described on Schedule 7.2; provided that Buyer makes a written claim for indemnification against any Seller pursuant to Section 8(d) within the applicable survival period, from and after the Closing each Seller and each Optionholder, severally and not jointly, will indemnify Buyer from and against such Seller’s or Optionholder’s Allocable Portion of any Adverse Consequences Buyer shall suffer resulting from (A) the breach of any representation or warranty made by the Company in Section 4 of this Agreement; (B) any breach by the Company of its agreement to pay the Option Cancellation Payments to the Optionholders at Closing in accordance with Section 2(g)(ii)(x) and the Sale Bonuses to the Sale Bonus Recipients at Closing in accordance with Section 2(h); (C) any breach by the Sellers’ Representative, in its capacity as Sellers’ Representative, under this Agreement or the Escrow Agreement, including any breach under Section 2(d); (D) any claims by any Seller to the extent relating to or arising out of any error in any payment made to the Sellers by the Sellers’ Representative, any Liabilities to the extent in connection with, as a result of, or arising out of any payment made by Buyer, the Company or any of their Subsidiaries or Affiliates in accordance with the terms of this Agreement or as directed in writing by the Sellers’ Representative, or any claims by any Seller to the extent relating to or arising out of any misallocation of the Purchase Price among the Sellers by the Sellers’ Representative; and (E) the matters set forth on Schedule 8(b)(i)(E); provided, however, that no Seller or Optionholder shall have any obligation to indemnify Buyer from and against any Adverse Consequences pursuant to Section 8(b)(i)(A): (1) until Buyer has suffered Adverse Consequences by reason of all such breaches in excess of a $550,000 aggregate deductible (after which point Sellers and Optionholders will be obligated to indemnify Buyer from and against such Adverse Consequences in excess of $250,000) or thereafter (2) to the extent Buyer has received indemnity payments hereunder in the amount of $5,750,000 in the aggregate (after which point Sellers and Optionholders will have no obligation to indemnify Buyer from and against further such Adverse Consequences); provided, however, that Sellers and Optionholders shall not be liable to Buyer for any claim if the Adverse Consequences relating to such claim are less than $25,000 (each a “Minor Claim”); and provided, further, that Minor Claims shall not be included in the computation of the aggregate deductible under clause (1) (and shall not be included in the computation of the amount described in the parenthetical within clause (1)). Notwithstanding anything to the contrary set forth herein, claims for indemnification made pursuant to this Section 8(b)(i) with respect to Adverse Consequences resulting from (x) any breaches of Section 4(a) (Organization, Qualification and Corporate Power), Section 4(b) (Capitalization), Section 4(e) (Brokers’ Fees) or Section 4(k) (Tax Matters), or (y) the fraud of any Seller, Optionholder or the Company, shall not be subject to the foregoing limitations set forth in clauses (1), (2), and the proviso relating to Minor Claims, in each case within this Section 8(b)(i); provided, however, that notwithstanding anything herein to the contrary, except in the case of fraud or intentional misrepresentation, no Seller’s or Optionholder’s aggregate liability for Adverse Consequences under any provision of this Agreement shall exceed such Seller’s or Optionholder’s Allocable Portion of the Purchase Price7.4 below.

Indemnification Provisions for Buyer’s Benefit. Each of Sellers (the “Seller Indemnifying Parties”) shall jointly and severally indemnify, defend and hold harmless the Target Entities, Buyer and each Affiliate of Buyer and the Target Entities and their respective employees, directors, managers, officers, representatives and stockholders (excluding Sellers) (collectively, the “Buyer Indemnified Parties”) from and against the entirety of any Damages any Buyer Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of or caused by (i) Subject any breach (or in the event any third party alleges facts that, if true, would mean any of the Target Entities or any Seller has breached) or inaccuracy of any of the Target Entities’ or any Seller’s representations, warranties or covenants contained herein (other than the covenants in Section 2.1 above and the representations and warranties in Section 3.1 above) or in any other Transaction Document or in any schedule, exhibit, certificate or agreement delivered pursuant hereto or thereto, (ii) any Target Expenses not deducted from the Purchase Price that is paid by Buyer, (iii) any additional payment owed to Direct General arising out of the provisions Direct General Documents that was not included in the DG Liability Amount and (iv) the matters described on Schedule 7.2; provided that Buyer makes a written claim for indemnification against any Seller pursuant to Section 7.4 below. (b) In the event any Seller breaches (or in the event any third party alleges facts that, if true, would mean any Seller breached) any of this his covenants in Section 8, including the limitations set forth 2.1 above or any Seller breaches or there is an inaccuracy in this any of his representations and warranties in Section 8(b)(i)3.1 above, and provided that Buyer makes a written claim for indemnification pursuant to Section 8(d) within the applicable survival period, from and after the Closing each Seller and each Optionholder, severally and not jointly, will indemnify Buyer from and against such Seller’s or Optionholder’s Allocable Portion of any Adverse Consequences Buyer shall suffer resulting from (A) the breach of any representation or warranty made by the Company in Section 4 of this Agreement; (B) any breach by the Company of its agreement to pay the Option Cancellation Payments to the Optionholders at Closing in accordance with Section 2(g)(ii)(x) and the Sale Bonuses to the Sale Bonus Recipients at Closing in accordance with Section 2(h); (C) any breach by the Sellers’ Representative, in its capacity as Sellers’ Representative, under this Agreement or the Escrow Agreement, including any breach under Section 2(d); (D) any claims by any Seller to the extent relating to or arising out of any error in any payment made to the Sellers by the Sellers’ Representative, any Liabilities to the extent in connection with, as a result of, or arising out of any payment made by Buyer, the Company or any of their Subsidiaries or Affiliates in accordance with the terms of this Agreement or as directed in writing by the Sellers’ Representative, or any claims by any Seller to the extent relating to or arising out of any misallocation of the Purchase Price among the Sellers by the Sellers’ Representative; and (E) the matters set forth on Schedule 8(b)(i)(E); provided, however, that no Seller or Optionholder shall have any obligation to indemnify Buyer from and against any Adverse Consequences pursuant to Section 8(b)(i)(A): (1) until Buyer has suffered Adverse Consequences by reason of all such breaches in excess of a $550,000 aggregate deductible (after which point Sellers and Optionholders will be obligated to indemnify Buyer from and against such Adverse Consequences in excess of $250,000) or thereafter (2) to the extent Buyer has received indemnity payments hereunder in the amount of $5,750,000 in the aggregate (after which point Sellers and Optionholders will have no obligation to indemnify Buyer from and against further such Adverse Consequences); provided, however, that Sellers and Optionholders shall not be liable to Buyer for any claim if the Adverse Consequences relating to such claim are less than $25,000 (each a “Minor Claim”); and provided, further, that Minor Claims shall not be included in the computation of the aggregate deductible under clause (1) (and shall not be included in the computation of the amount described in the parenthetical within clause (1)). Notwithstanding anything to the contrary set forth herein, claims for indemnification made pursuant to this Section 8(b)(i) with respect to Adverse Consequences resulting from (x) any breaches of Section 4(a) (Organization, Qualification and Corporate Power), Section 4(b) (Capitalization), Section 4(e) (Brokers’ Fees) or Section 4(k) (Tax Matters), or (y) the fraud of any Seller, Optionholder or the Company, shall not be subject to the foregoing limitations set forth in clauses (1), (2), and the proviso relating to Minor Claims, in each case within this Section 8(b)(i); provided, however, that notwithstanding anything herein to the contrary, except in the case of fraud or intentional misrepresentation, no Seller’s or Optionholder’s aggregate liability for Adverse Consequences under any provision of this Agreement shall exceed such Seller’s or Optionholder’s Allocable Portion of the Purchase Price.42

Indemnification Provisions for Buyer’s Benefit. (ia) Subject to In the provisions event any Seller breaches any of this Section 8the Sellers’ representations or warranties contained herein (other than the representations and warranties in Sections 3.4, including 3.5, 3.6, 3.8 and 3.17 (the limitations set forth in this Section 8(b)(i“Specified Sections”), and provided that Buyer makes gives Seller’s representative a written claim for indemnification pursuant to Section 8(d) Notice of Claim within the survival period (if any) applicable survival periodthereto under Section 8.1, from and after the Closing each Seller and each Optionholder, severally and not jointly, will then Sellers shall indemnify Buyer and Target, and their respective stockholders, controlling persons, Affiliates, directors, officers, employees, agents, consultants, advisors, and other representatives (the “Buyer Indemnified Persons”) from and against such Seller’s or Optionholder’s Allocable Portion of any Adverse Consequences that any Buyer Indemnified Person shall suffer resulting from (A) the breach of any representation or warranty made by the Company in Section 4 of this Agreement; (B) any breach by the Company of its agreement to pay the Option Cancellation Payments to the Optionholders at Closing in accordance with Section 2(g)(ii)(x) and the Sale Bonuses to the Sale Bonus Recipients at Closing in accordance with Section 2(h); (C) any breach by the Sellers’ Representative, in its capacity as Sellers’ Representative, under this Agreement or the Escrow Agreement, including any breach under Section 2(d); (D) any claims by any Seller to the extent relating to or arising out of any error in any payment made or related to the Sellers by the Sellers’ Representative, any Liabilities to the extent in connection with, as a result of, or arising out of any payment made by Buyer, the Company or any of their Subsidiaries or Affiliates in accordance with the terms of this Agreement or as directed in writing by the Sellers’ Representative, or any claims by any Seller to the extent relating to or arising out of any misallocation of the Purchase Price among the Sellers by the Sellers’ Representative; and (E) the matters set forth on Schedule 8(b)(i)(E)breach; provided, however, that no Seller or Optionholder Sellers shall not have any obligation to indemnify the Buyer Indemnified Persons from and against any Adverse Consequences pursuant to Section 8(b)(i)(A): caused by any breach of a representation or warranty made in Article 3, other than in the Specified Sections, (1i) until Buyer has suffered Adverse Consequences by reason of all such breaches in excess of a $550,000 300,000 in the aggregate deductible and (ii) to the extent the Adverse Consequences Buyer has suffered by reason of all such breaches in excess of $300,000 exceeds an aggregate ceiling equal to Five Million and 00/100 Dollars ($5,000,000.00), after which point Sellers and Optionholders will be obligated to indemnify Buyer from and against such Adverse Consequences in excess of $250,000) or thereafter (2) to the extent Buyer has received indemnity payments hereunder in the amount of $5,750,000 in the aggregate (after which point Sellers and Optionholders will have no obligation to indemnify Buyer further with respect to such Adverse Consequences. Notwithstanding any contrary provision in this Agreement, the limitations provided in the preceding sentence, and specifically in clauses (i) and (ii) thereof, shall not apply with respect to or limit Sellers’ liability for any Adverse Consequence arising out of or relating to the following (1) any breach of the representations or warranties contained in the Specified Sections; or (2) the breach of any covenant contained in this Agreement; and Sellers shall indemnify and hold harmless the Buyer Indemnified Persons from and against further such Adverse Consequences); provided, however, that Sellers and Optionholders shall not be liable to Buyer for the entirety of any claim if arising out of the Adverse Consequences relating to such claim are less than $25,000 (each a “Minor Claim”); and provided, further, that Minor Claims shall not be included matters described in the computation of the aggregate deductible under clause preceding clauses (1) (and shall not be included in the computation of the amount described in the parenthetical within clause (1)). Notwithstanding anything to the contrary set forth herein, claims for indemnification made pursuant to this Section 8(b)(i) with respect to Adverse Consequences resulting from (x) any breaches of Section 4(a) (Organization, Qualification and Corporate Power), Section 4(b) (Capitalization), Section 4(e) (Brokers’ Fees) or Section 4(k) (Tax Matters), or (y) the fraud of any Seller, Optionholder or the Company, shall not be subject to the foregoing limitations set forth in clauses (1), and/or (2), and the proviso relating to Minor Claims, in each case within this Section 8(b)(i); provided, however, that notwithstanding anything herein to the contrary, except in the case of fraud or intentional misrepresentation, no Seller’s or Optionholder’s aggregate liability for Adverse Consequences under any provision ) of this Agreement shall exceed such Seller’s or Optionholder’s Allocable Portion of the Purchase Pricesentence.

Indemnification Provisions for Buyer’s Benefit. (ia) Subject to In the provisions event any Seller breaches (or in the event any third party alleges facts that, if true, would mean any Seller has breached) any of this Section 8his, including the limitations set forth in this Section 8(b)(i)her, or its representations, warranties, and covenants contained herein and, provided that Buyer makes delivers a written notice of claim for indemnification pursuant to against any Seller in the manner described in Section 8(d) 11.5 below within the applicable survival periodSurvival Period, from then, subject to the limitations contained herein and after the Closing in Section 9.8(b), each Seller and each Optionholderwho has breached a representation, severally and not jointly, will indemnify Buyer from and against such Seller’s warranty or Optionholder’s Allocable Portion of any Adverse Consequences Buyer covenant shall suffer resulting from (A) the breach of any representation or warranty made by the Company in Section 4 of this Agreement; (B) any breach by the Company of its agreement to pay the Option Cancellation Payments to the Optionholders at Closing in accordance with Section 2(g)(ii)(x) and the Sale Bonuses to the Sale Bonus Recipients at Closing in accordance with Section 2(h); (C) any breach by the Sellers’ Representative, in its capacity as Sellers’ Representative, under this Agreement or the Escrow Agreement, including any breach under Section 2(d); (D) any claims by any Seller to the extent relating to or arising out of any error in any payment made to the Sellers by the Sellers’ Representative, any Liabilities to the extent in connection with, as a result of, or arising out of any payment made by Buyer, the Company or any of their Subsidiaries or Affiliates in accordance with the terms of this Agreement or as directed in writing by the Sellers’ Representative, or any claims by any Seller to the extent relating to or arising out of any misallocation of the Purchase Price among the Sellers by the Sellers’ Representative; and (E) the matters set forth on Schedule 8(b)(i)(E); provided, however, that no Seller or Optionholder shall have any obligation to indemnify Buyer from and against any Adverse Consequences pursuant to Section 8(b)(i)(A): (1) until Buyer has suffered Adverse Consequences by reason of all such breaches in excess of a $550,000 aggregate deductible (after which point Sellers and Optionholders will be obligated to indemnify Buyer from and against such the entirety of any Adverse Consequences in excess Buyer may suffer (including any Adverse Consequences Buyer may suffer after the end of $250,000the Survival Period) or thereafter (2) to the extent Buyer has received indemnity payments hereunder resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). The amount of $5,750,000 each such indemnifying Seller's liability shall be limited to that Seller's liability cap as described in Section 9.8(b). If, in a given situation, there is more than one indemnifying Seller, the aggregate (after which point liability of each such indemnifying Seller shall be pro rata, based on the number of Shares each such Seller has sold to Buyer under the terms of this Agreement. By way of example, if there are two indemnifying Sellers and Optionholders will have no obligation to indemnify Buyer from one sold 80,000 shares and against further the other sold 20,000 shares, the first such Adverse Consequences); provided, however, that Sellers and Optionholders shall not be liable to Buyer for any claim if the Adverse Consequences relating to such claim are less than $25,000 (each a “Minor Claim”); and provided, further, that Minor Claims shall not be included in the computation Seller would bear 80% of the aggregate deductible under clause (1) (indemnification cost and shall not be included in the computation second such Seller would bear 20% of the amount described in the parenthetical within clause (1)). Notwithstanding anything to the contrary set forth herein, claims for indemnification made pursuant to this Section 8(b)(i) with respect to Adverse Consequences resulting from (x) any breaches of Section 4(a) (Organization, Qualification and Corporate Power), Section 4(b) (Capitalization), Section 4(e) (Brokers’ Fees) or Section 4(k) (Tax Matters), or (y) the fraud of any Seller, Optionholder or the Company, shall not be subject to the foregoing limitations set forth in clauses (1), (2), and the proviso relating to Minor Claimscost, in each case within this limited by that Seller's overall liability limit set forth in Section 8(b)(i9.8(b); provided, however, that notwithstanding anything herein to the contrary, except in the case of fraud or intentional misrepresentation, no Seller’s or Optionholder’s aggregate liability for Adverse Consequences under any provision of this Agreement shall exceed such Seller’s or Optionholder’s Allocable Portion of the Purchase Price.