Common use of Indemnification Relating to Agreement Clause in Contracts

Indemnification Relating to Agreement. Subject to limitations set forth in this Article VIII, the Stockholders jointly and severally agree to defend, indemnify, and hold Purchaser harmless from and against, and reimburse Purchaser with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs, and expenses (including reasonable attorneys’ fees) (“Indemnifiable Amounts”) of every nature whatsoever incurred by Purchaser by reason of or arising out of or in connection with (i) any breach, or any claim (including claims by parties other than Purchaser) that if true, would constitute a breach by Company or the Stockholders of any representation or warranty of Company or Stockholders contained in this Agreement or in any certificate or other document delivered to Purchaser pursuant to the provisions of this Agreement (collectively the “Transaction Documents”) (in each case as modified by the Company Disclosure Schedule, as of the date hereof), (ii) the failure, partial or total, of Company or the Stockholders to perform any agreement or covenant required by this Agreement to be performed by Company or the Stockholders, (iii) any tax liability of Company or asserted tax liability of Company relating to any period of time prior to and through the Closing Date (a “Pre-Closing Period”), (iv) any Working Capital Deficit Adjustment, (v) any liability under the Fair Labor Standards Act and rules of the Department of Labor, and any applicable state statutes or rules relating to wages and hours, (vi) liabilities incurred by Purchaser, or the Company, including expenses of defense, for the matters described in Schedule 8.1, (vi) liabilities incurred by Purchaser or Company in connection with the sale of Company, or its predecessor to Fidelity First Financial Corp., and the repurchase of Company, its assets, or its predecessor from such purchaser by the any of the Stockholders, (vii) any liability under the Telephone Consumer Protection Act, (viii) liabilities incurred by Purchaser or Company in connection with any Company Options or performance shares granted to Xxxxx Xxxxx and Xxx Xxxxxxx, (ix) liabilities incurred by Purchaser or Company related to any member of Company’s work force including independent contractors, in each case of (i) and (ii) above, without giving effect to any “materiality” limitations or references to “material adverse effect” set forth therein. Subject to Section 8.6, Purchaser will retain a portion of the Holdback Amount with respect to any Indemnifiable Amounts arising from (i) through (iii) above and after Closing for any and all Excess Expenses not otherwise deducted from the Holdback Amount under Section 2.2. Subject to limitations set forth in this Article VIII, each Stockholder, severally agrees to defend, indemnify, and hold Purchaser harmless from and against, and to reimburse Purchaser with respect to, any and all Indemnifiable Amounts of every nature whatsoever incurred by Purchaser by reason of or arising out of or in connection with (i) any breach, or any claim (including claims by parties other than Purchaser) that if true, would constitute a breach by such Stockholder, of any representation or warranty of such Stockholder in a Non-Competition and Non-Solicitation Agreement delivered by such Stockholder to Purchaser pursuant to the provisions of this Agreement, (ii) the failure, partial or total, of the such Stockholder to perform any agreement or covenant required by a Non-Competition and Non-Solicitation Agreement to be performed by such Stockholder. The availability of the Holdback Amount to indemnify Purchaser will be determined without regard to any right to indemnification to which any Stockholder may have in his or her capacity as an officer, director, employee, agent, or any other capacity of Company and no such holder will be entitled to any indemnification from Company or Purchaser for amounts paid hereunder. Any Holdback Adjustment or payment to Purchaser pursuant to this Article VIII will be treated for tax purposes as an adjustment to the Purchase Price.

Indemnification Relating to Agreement. (a) Subject to the limitations set forth in this Article VIII, the Stockholders holders of the Company Shares jointly and severally agree to will defend, indemnify, and hold Purchaser Parent and Surviving Corporation harmless from and against, and reimburse Purchaser Parent and Surviving Corporation with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs, and expenses (including reasonable attorneys’ fees) (“Parent Indemnifiable Amounts”) of every nature whatsoever incurred by Purchaser Parent and Surviving Corporation by reason of or arising out of or in connection with (i) any breach, or any claim (including claims by parties other than PurchaserParent) that if true, would constitute a breach by Company or the Stockholders of any representation or warranty of Company or Stockholders contained in this Agreement or in any certificate or other document delivered to Purchaser pursuant to the provisions of this Agreement (collectively the “Transaction Documents”) (in each case as modified by the Company Disclosure Schedule, Schedule as of the date hereof), (ii) the failure, partial or total, any breach of Company or the Stockholders to perform any agreement or covenant required by this Agreement to be performed by Company or the StockholdersCompany, (iii) any tax liability of Company or asserted tax liability all taxes of Company relating to any period of time prior to and through the Closing Date (a “Pre-Closing Period (calculated in the manner set forth in Section 8.8 (Straddle Period”)), (iv) any Working Capital Deficit Adjustment, the amount of all Transaction Expenses in excess of the amount of Transaction Expenses contained on the final Schedule 2.1.3 approved in writing by Parent and Company before Closing and (v) Parent or Surviving Corporation providing indemnification under Section 6.8 hereunder to any liability under Indemnified Party to the Fair Labor Standards Act and rules of the Department of Labor, and any applicable state statutes extent such indemnification relates to an act or rules relating to wages and hours, (vi) liabilities incurred by Purchaser, or the Company, including expenses of defense, for the matters described in Schedule 8.1, (vi) liabilities incurred by Purchaser or Company in connection with the sale of Company, or its predecessor to Fidelity First Financial Corp., and the repurchase of Company, its assets, or its predecessor from such purchaser omission by the any of the Stockholders, Indemnified Party that gives rise to a Parent Indemnifiable Amount under (viii) any liability under the Telephone Consumer Protection Act, or (viiiii) liabilities incurred by Purchaser or Company in connection with any Company Options or performance shares granted to Xxxxx Xxxxx and Xxx Xxxxxxx, (ix) liabilities incurred by Purchaser or Company related to any member of Company’s work force including independent contractors, above; in each case of (i) and (ii) above, without giving effect to any “materiality” limitations or references to “Company Material Adverse Effect” or “material adverse effect” set forth therein. Any payment to Parent in accordance with this Article VIII will be treated for tax purposes as an adjustment to the consideration for the Company Shares. (b) Subject to Section 8.6, Purchaser will retain a portion of the Holdback Amount with respect to any Indemnifiable Amounts arising from (i) through (iii) above and after Closing for any and all Excess Expenses not otherwise deducted from the Holdback Amount under Section 2.2. Subject to limitations set forth in this Article VIII, each Stockholder, Parent and the Surviving Corporation jointly and severally agrees to will defend, indemnify, and hold Purchaser the holders of Company Shares harmless from and against, and to reimburse Purchaser the holders of Company Shares with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs, and expenses (including reasonable attorneys’ fees) (“Stockholder Indemnifiable Amounts Amounts”) of every nature whatsoever incurred by Purchaser the holders of Company Shares (in their capacities as holders of Company Shares) by reason of or arising out of or in connection with (i) any breach, or any claim (including claims by parties other than Purchaserthe holders of Company Shares) that if true, would constitute a breach by such Stockholder, of any representation or warranty of such Stockholder Parent or Acquisition Sub in a Non-Competition and Non-Solicitation Agreement delivered by such Stockholder to Purchaser pursuant to the provisions of this Agreement, or (ii) the failure, partial or total, any breach of the such Stockholder to perform any agreement or covenant required by a Non-Competition and Non-Solicitation this Agreement to be performed by such StockholderParent. The availability of Any payment to the Holdback Amount to indemnify Purchaser will be determined without regard to any right to indemnification to which any Stockholder may have in his or her capacity as an officer, director, employee, agent, or any other capacity holders of Company and no such holder will be entitled to any indemnification from Company or Purchaser for amounts paid hereunder. Any Holdback Adjustment or payment to Purchaser pursuant to Shares in accordance with this Article VIII will be treated for tax purposes as an adjustment to the Purchase Priceconsideration for the Company Shares.

Indemnification Relating to Agreement. Subject to the limitations set forth in this Article VIII, the Stockholders Company Securityholders severally but not jointly and severally agree (in proportion to their Conversion Payments) will defend, indemnify, and hold Purchaser Parent and Surviving Company harmless from and against, reimburse Parent and reimburse Purchaser with respect to, any and Surviving Company for all losses, damages, liabilities, claims, judgments, settlements, fines, costs, penalties, and expenses (including reasonable investigation costs and reasonable attorneys’ fees) (“Indemnifiable Amounts”) of every nature whatsoever incurred by Purchaser by reason Parent or Surviving Company (regardless of whether or not such Indemnifiable Amounts relate to any third party claim) arising out of or in connection with (i) any breach, or any claim (including claims by parties other than Purchaser) that Parent or Surviving Company that, if true, would constitute a breach by Company or the Stockholders breach, of any representation or warranty of Company or Stockholders contained in this Agreement or in any certificate or other document delivered to Purchaser pursuant to the provisions of by Company in accordance with this Agreement (collectively the “Transaction Documents”) (in each case as modified by the Company Disclosure Schedule, as of the date hereof), Agreement; (ii) the failure, partial or total, of Company or the Stockholders to perform any agreement or covenant required by this Agreement to be performed by Company or the Stockholders, Agreement; (iii) any tax liability all taxes of Company and any of its subsidiaries relating to all taxable periods ended on or asserted tax liability before the Closing Date and the portion of taxes of Company relating attributable to the portion of any period Straddle Period beginning as of time prior to the first day of such Straddle Period and through ending as of the Closing Date (a “Pre-Closing Period”) (calculated in the manner provided in Section 8.7 (Straddle Period), ); (iv) the Allocation Determinations, including any Working Capital Deficit Adjustmentclaim that any of the foregoing is improper, unfair, invalid, or otherwise in violation of applicable law; (v) any liability under Transaction Expenses not included in the Fair Labor Standards Act and rules of the Department of Labor, and any applicable state statutes or rules relating to wages and hours, Estimated Expenses; (vi) liabilities incurred by Purchaserlitigation and arbitration processes relating to the pre-Closing period but filed or commenced before the first anniversary of the Closing Date; (vii) failure to deduct and withhold from any Conversion Payment any amount required to be deducted and withheld with respect to the making of such payment under applicable requirements or any applicable provision of state, local, or the foreign tax law; and (viii) Company, including expenses ’s (and its subsidiaries’) lack of defense, for the matters described in Schedule 8.1, (vi) liabilities incurred by Purchaser or Company in connection with the sale of Company, or its predecessor to Fidelity First Financial Corp., and the repurchase of Company, its assets, or its predecessor from such purchaser by the any of the Stockholdersfollowing regulatory social insurance items: pension insurance (养老保险), medical insurance (vii) any liability under 医疗保险), unemployment insurance (失业保险), maternity insurance (生育保险), work-related injury insurance (工伤保险), and housing fund (住房公积金); in the Telephone Consumer Protection Act, (viii) liabilities incurred by Purchaser or Company in connection with any Company Options or performance shares granted to Xxxxx Xxxxx and Xxx Xxxxxxx, (ix) liabilities incurred by Purchaser or Company related to any member of Company’s work force including independent contractors, in each case of (i) and (ii) above, without giving effect to any “materiality” limitations or references to “material adverse effect” set forth therein. Subject to Section 8.6, Purchaser will retain a portion solely for the purpose of determining the Holdback Amount with respect to any amount of Indemnifiable Amounts arising from suffered (iand not whether a breach, inaccuracy, or failure has occurred); and with regard to (vi) through (iii) above and after Closing for any and all Excess Expenses not otherwise deducted from the Holdback Amount under Section 2.2. Subject to limitations set forth in this Article VIIIabove, each Stockholder, severally Parent agrees to defend, indemnify, notify the Securityholders’ Representative on a regular basis and hold Purchaser harmless from and against, and use its commercially reasonable efforts to reimburse Purchaser with respect to, any and all Indemnifiable Amounts of every nature whatsoever incurred by Purchaser by reason of settle threatened or arising out of or in connection with (i) any breach, or any claim (including claims by parties other than Purchaser) that if true, would constitute a breach by such Stockholder, of any representation or warranty of such Stockholder in a Non-Competition and Non-Solicitation Agreement delivered by such Stockholder to Purchaser pursuant to the provisions of this Agreement, (ii) the failure, partial or total, of the such Stockholder to perform any agreement or covenant required by a Non-Competition and Non-Solicitation Agreement to be performed by such Stockholder. The availability of the Holdback Amount to indemnify Purchaser will be determined without regard to any right to indemnification to which any Stockholder may have in his or her capacity as an officer, director, employee, agent, or any other capacity of Company and no such holder will be entitled to any indemnification from Company or Purchaser for amounts paid hereunderfiled lawsuits. Any Holdback Adjustment or payment to Purchaser pursuant to Parent or Surviving Company in accordance with this Article VIII will be treated for tax purposes as an adjustment to the Purchase Priceconsideration paid by Parent under this Agreement.

Indemnification Relating to Agreement. Subject to limitations set forth in this Article VIIISections 8.5 and 8.6, Ten Million Dollars ($10,000,000) of the Stockholders jointly Escrow Amount shall be available from and severally agree after the Closing to defend, indemnify, and hold Purchaser Parent and Surviving Corporation harmless from and against, and to reimburse Purchaser Parent and Surviving Corporation with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs, and expenses (including reasonable attorneys’ fees) (“Indemnifiable Amounts”) of every nature whatsoever incurred by Purchaser Parent and Surviving Corporation by reason of or arising out of or in connection with (i) any breach, or any claim (including claims by parties other than PurchaserParent) that if true, would constitute a breach by Company or the Stockholders of any representation or warranty of Company or Stockholders contained in this Agreement or in any certificate or other document delivered to Purchaser Parent pursuant to the provisions of this Agreement (collectively the “Transaction Documents”) (in each case as modified by the Company Disclosure Schedule, Schedule as of the date hereof), ; (ii) the failure, partial or total, of Company or the Stockholders to perform any agreement or covenant required by this Agreement to be performed by Company or the Stockholdersit, (iii) any tax liability of Company or asserted tax liability of Company relating to any period of time prior to and through the Closing Date (a “Pre-Closing Period”), and, except for (x) taxes attributable to, resulting from or arising out of the Merger, (y) taxes that are disclosed on the Company Disclosure Schedule, and (z) taxes reflected in Financial Statements prepared in accordance with its past practices; and (iv) any Working Capital Deficit Adjustment, (v) any liability under the Fair Labor Standards Act and rules of the Department of Labor, and any applicable state statutes or rules relating to wages and hours, (vi) liabilities incurred by Purchaser, or the Company, including expenses of defense, for the matters described in Schedule 8.1, (vi) liabilities incurred by Purchaser or Company in connection with the sale of Company, or its predecessor to Fidelity First Financial Corp., and the repurchase of Company, its assets, or its predecessor from such purchaser by the any of the Stockholders, (vii) any liability under the Telephone Consumer Protection Act, (viii) liabilities incurred by Purchaser or Company in connection with any Company Options or performance shares granted to Xxxxx Xxxxx and Xxx Xxxxxxx, (ix) liabilities incurred by Purchaser or Company related to any member of Company’s work force including independent contractors, in each case of (i) and (ii) above, without giving effect to any “materiality” limitations or references to “material adverse effect” set forth therein. Subject to Section 8.6, Purchaser will retain a portion Five Million Dollars ($5,000,000) of the Holdback Escrow Amount with respect to any Indemnifiable Amounts arising shall be available from (i) through (iii) above and after the Closing for any and all Excess Expenses not otherwise deducted from the Holdback Amount under Section 2.2. Subject to limitations set forth in this Article VIII, each Stockholder, severally agrees to defend, indemnify, and hold Purchaser Parent and Surviving Corporation harmless from and against, and to reimburse Purchaser Parent and Surviving Corporation with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs, and expenses (including reasonable attorneys’ fees) (“Special Escrow Indemnifiable Amounts Amounts”) of every nature whatsoever incurred by Purchaser Parent and Surviving Corporation by reason of or arising out of or in connection with (i) any breachthose matters described in Schedule 8.1. Notwithstanding the foregoing, or any claim (including claims by parties other than Purchaser) that if true, would constitute a breach by such Stockholder, the Indemnifiable Amounts and the Special Escrow Indemnifiable Amounts shall be net of the amount of any representation insurance proceeds from policies held by Company prior to Closing and any indemnity or warranty contribution amounts actually recovered by Parent or Surviving Corporation and are subject to compliance with any applicable provisions in the Transition Services Agreement (e.g., notice of such Stockholder in a Non-Competition and Non-Solicitation Agreement delivered by such Stockholder to Purchaser pursuant claims relating to the provisions of this Agreement, (ii) the failure, partial or total, of the such Stockholder late phase business); provided that neither Parent nor Surviving Corporation shall have any obligation to perform file any agreement or covenant required by a Non-Competition and Non-Solicitation Agreement to be performed by such Stockholderclaims with their respective insurers. The availability of the Holdback Escrow Amount to indemnify Purchaser will Parent as provided in this Article VIII shall be determined without regard to any right to indemnification to which any Stockholder holder of any interest in the Escrow Amount may have in his or her capacity as an officer, director, employee, agent, or any other capacity of Company and no such holder will shall be entitled to any indemnification from Company or Purchaser the Surviving Corporation for amounts paid hereunder. Any Holdback Adjustment or payment to Purchaser Parent pursuant to this Article VIII will shall be treated for tax purposes as an adjustment to the Purchase PriceBase Amount.

Indemnification Relating to Agreement. (a) Subject to the limitations set forth in this Article VIIIIX, the Stockholders jointly holders of the Company Stock, severally and severally agree to not jointly, will defend, indemnify, and hold Purchaser Parent and Surviving Corporation and their respective directors, officers, employees, agents, representatives, successors and assigns (collectively, the “Parent Indemnified Parties”) harmless from and against, and reimburse Purchaser any Parent Indemnified Party with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs, and expenses (including reasonable attorneys’ fees) (“Parent Indemnifiable Amounts”) of every nature whatsoever incurred by Purchaser such Parent Indemnified Party by reason of or arising out of or in connection with (i) any breach, or any claim (including claims by parties other than PurchaserParent) that if true, would constitute a breach by Company or the Stockholders of any representation or warranty of Company or Stockholders contained in this Agreement or in any certificate or other document delivered to Purchaser pursuant to the provisions of this Agreement (collectively the “Transaction Documents”) (in each case as modified by the Company Disclosure Schedule, Schedule as of the date hereof)) other than *********************************, (ii) from and after the failureEffective Time, partial or total, any breach prior to the Effective Time of Company or the Stockholders to perform any agreement or covenant required by this Agreement to be performed by Company or the StockholdersCompany, (iii) the amount of any tax liability of Company or asserted tax liability of Company relating to any period of time prior to additional Transaction Expenses and through Change in Control Payments not deducted from the Total Cash Consideration on the Closing Date (a “Pre-Closing Period”)Date, (iv) any Working Capital Deficit Adjustmentliability for any Tax of or with respect to Company or any of its subsidiaries in excess of the amount, if any, reserved for such Tax on the balance sheet delivered under Section 7.8(b) (which shall reflect the reserves for Taxes on the Balance Sheet, adjusted solely for taxable income or loss from (A) ordinary course operations through the Closing Date and (B) transactions contemplated by this Agreement, each in accordance with the past custom and practice of Company and its subsidiaries, to the extent relevant), for (x) any taxable year or period that ends on or before the Closing Date or (y) with respect to any Straddle Period, the portion of such Straddle Period deemed to end on and include the Closing Date, (v) any liability under the Fair Labor Standards Act and rules for U.K. income Taxes (or any income Taxes imposed by any political subdivision of the Department U.K.) of Laboror with respect to Company or any of its subsidiaries imposed as a result of the application of Section 482 of the Code, the Treasury Regulations promulgated thereunder, or any similar provision of U.K. law (or the law of any political subdivision of the U.K.), for (x) any taxable year or period that ends on or before the Closing Date or (y) with respect to any Straddle Period, the portion of such Straddle Period deemed to end on and any applicable state statutes or rules relating to wages and hoursinclude the Closing Date, (vi) liabilities incurred by Purchaser, or the Company, including expenses of defense, for the matters described in Schedule 8.1, (vi) liabilities incurred by Purchaser or Company in connection with the sale of Company, or its predecessor to Fidelity First Financial Corp., and the repurchase of Company, its assets, or its predecessor from such purchaser by the any of the Stockholders, (vii) any liability under the Telephone Consumer Protection Act, (viii) liabilities incurred by Purchaser or Company in connection with any Company Options or performance shares granted to Xxxxx Xxxxx and Xxx Xxxxxxx, (ix) liabilities incurred by Purchaser or Company related to any member for Taxes of Company’s work force including independent contractors, in each case of (i) and (ii) above, without giving effect to any “materiality” limitations or references to “material adverse effect” set forth therein. Subject to Section 8.6, Purchaser will retain a portion of the Holdback Amount with respect to any Indemnifiable Amounts arising from (i) through (iii) above and after Closing for any and all Excess Expenses not otherwise deducted from the Holdback Amount under Section 2.2. Subject to limitations set forth in this Article VIII, each Stockholder, severally agrees to defend, indemnify, and hold Purchaser harmless from and against, and to reimburse Purchaser with respect to, any and all Indemnifiable Amounts of every nature whatsoever incurred by Purchaser by reason of or arising out of or in connection with (i) any breach, or any claim (including claims by parties other than Purchaser) that if true, would constitute a breach by such Stockholder, of any representation or warranty of such Stockholder in a Non-Competition and Non-Solicitation Agreement delivered by such Stockholder to Purchaser pursuant to the provisions of this Agreement, (ii) the failure, partial or total, of the such Stockholder to perform any agreement or covenant required by a Non-Competition and Non-Solicitation Agreement to be performed by such Stockholder. The availability of the Holdback Amount to indemnify Purchaser will be determined without regard to any right to indemnification to which any Stockholder may have in his or her capacity as an officer, director, employee, agent, or any other capacity of Company and no such holder will be entitled to any indemnification from Company or Purchaser for amounts paid hereunder. Any Holdback Adjustment or payment to Purchaser pursuant to this Article VIII will be treated for tax purposes as an adjustment to the Purchase Price.any