Indemnification Cap In no event shall the aggregate indemnification to be paid by any Seller under this Article VII exceed the greater of (x) the product of the Purchase Price multiplied by the proportion of such Seller’s Company Shares to the total amount of Company Shares (the “Seller Purchase Price”), or (y) the product of (i) the average closing price of the Ordinary Shares on the NASDAQ Capital Market (or succeeding trading market) over the five (5) Business Days preceding the Determination Date (as defined below) multiplied by (ii) the number of Ordinary Shares received by such Seller upon the consummation of the transactions contemplated hereby (the “Individual Seller Cap”). Notwithstanding the foregoing, the Individual Seller Cap shall not apply to claims for indemnification resulting from or relating to breaches by such Seller constituting fraud or intentional misconduct. In no event shall the aggregate indemnification to be paid by Buyer under this Article VI exceed the Purchase Price.
Indemnification Limits If the Closing occurs, the Purchaser Indemnified Parties (as hereinafter defined) shall not be entitled to recover any Losses (as hereinafter defined) for breaches of the representations and warranties of the Seller and/or the Company contained herein (a) unless and until the Purchaser Indemnified Parties’ aggregate claims therefor exceed $250,000, at which time the Purchaser Indemnified Parties shall be entitled to recover Losses for all claims in excess of such amount (except that claims for breach of any representation or warranty that is subject to Material Adverse Effect or other materiality qualifier shall not be subject to the terms of this clause (a) and, subject to all other applicable limitations in this Article 10, the Purchaser shall be allowed to recover for all Losses related thereto), or (b) absent fraud or willful misconduct, for an aggregate amount in excess of $8,500,000; provided that claims for breach of any of the Specified Representations by the Seller or the Company shall not be subject to the foregoing limits (but shall instead be subject to and not exceed the total consideration paid to the Seller) and shall not be included in the determination of whether the limit in clause (b) has been reached. Notwithstanding the limitations on indemnification set forth in Section 10.1 and this Section 10.2, such limitations shall not apply to any claim against the Seller for breach of any representation or warranty that to the knowledge of the Seller or the Company was inaccurate at Closing and which breach was not previously disclosed to the Purchaser in writing prior to the Closing. For all purposes of this Article 10, when determining the amount of the Losses, any Material Adverse Effect or other materiality qualifier in any such representation or warranty will be disregarded. No Indemnifier shall have any indemnification obligation for (x) punitive damages, except, in all cases, all such damages that are payable by the Purchaser or any of its Affiliates in connection with a third-party claim or (y) any indirect damages that are not reasonably foreseeable or (z) any damages resulting from positions taken by the Purchaser, the Company or any Subsidiary on any Tax Returns filed by them for any post-closing tax period, even if such positions are the same or similar to positions taken on Tax Returns filed by Seller, the Company or any Subsidiary for any Pre-Closing Taxable Period. Notwithstanding anything to the contrary herein, the Purchaser Indemnified Parties shall not be entitled to recover any Losses for breaches of the representations and warranties of the Seller and/or the Company to the extent based on facts and circumstances that constitute New Matters explicitly reflected in the Updated Disclosure Schedules, if any, unless and until the Purchaser Indemnified Parties’ aggregate claims therefor exceed $250,000, at which time the Purchaser Indemnified Parties shall be entitled to recover Losses for all claims in excess of such amount subject to the other terms of this Article 10. For clarity, delivery of the Updated Disclosure Schedules shall have no effect other than as provided in the immediately preceding sentence.
MLV Indemnification MLV agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 11(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information relating to MLV and furnished to the Company in writing by MLV expressly for use therein.
Indemnification Limitations (a) Purchaser shall be under no liability to indemnify Seller under 10.3.1 and no claim under Section 10.3.1 of this Agreement shall:
Indemnification of Agent Indemnitees EACH LENDER SHALL INDEMNIFY AND HOLD HARMLESS AGENT INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS (BUT WITHOUT LIMITING THE INDEMNIFICATION OBLIGATIONS OF OBLIGORS UNDER ANY LOAN DOCUMENTS), ON A PRO RATA BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY AGENT INDEMNITEE, PROVIDED THE CLAIM RELATES TO OR ARISES FROM AN AGENT INDEMNITEE ACTING AS OR FOR AGENT (IN ITS CAPACITY AS AGENT). In Agent’s discretion, it may reserve for any such Claims made against an Agent Indemnitee, and may satisfy any judgment, order or settlement relating thereto, from proceeds of Collateral prior to making any distribution of Collateral proceeds to Lenders. If Agent is sued by any receiver, bankruptcy trustee, debtor-in-possession or other Person for any alleged preference or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of such proceeding, together with all interest, costs and expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent by each Lender to the extent of its Pro Rata share.
Mandatory Indemnification; Indemnification as a Witness (i) To the extent that Indemnitee shall have been successful on the merits or otherwise in defense of any Claim relating to an Indemnifiable Event or any portion thereof or in defense of any issue or matter therein, including without limitation dismissal without prejudice, Indemnitee shall be indemnified against all Losses relating to such Claim in accordance with Section 2 to the fullest extent allowable by law, and no Standard of Conduct Determination (as defined in Section 8(b)) shall be required.
Release Indemnification (a) In further consideration of Agent’s and Lenders’ execution of this Amendment, each Credit Party, individually and on behalf of its successors (including, without limitation, any trustees acting on behalf of such Credit Party and any debtor-in-possession with respect to such Credit Party), assigns, subsidiaries and affiliates, hereby forever releases Agent and each Lender and their respective successors, assigns, parents, subsidiaries, affiliates, officers, employees, directors, agents and attorneys (collectively, the “Releasees”) from any and all debts, claims, demands, liabilities, responsibilities, disputes, causes, damages, actions and causes of actions (whether at law or in equity) and obligations of every nature whatsoever, whether liquidated or unliquidated, whether known or unknown, matured or unmatured, fixed or contingent (collectively, “Claims”) that such Credit Party may have against the Releasees which arise from or relate to any actions which the Releasees may have taken or omitted to take in connection with the Obligations, the Credit Agreement or the other Loan Documents prior to the date this Amendment was executed, including, without limitation, with respect to the Obligations, any Collateral, the Credit Agreement, any other Loan Document and any third parties liable in whole or in part for the Obligations, other than debts, claims, demands, liabilities, responsibilities, disputes, causes of action and obligations to the extent they result from any Releasee’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction. This provision shall survive and continue in full force and effect whether or not the Credit Parties shall satisfy all other provisions of this Amendment, the Loan Documents or the Credit Agreement, including payment in full of all Obligations.
Partial Indemnification and Contribution If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Indemnifiable Losses in connection with a Proceeding, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Indemnifiable Losses to which Indemnitee is entitled. To the fullest extent permissible under applicable law, if, for any reason whatsoever, the indemnification provided for in this Agreement is unavailable to Indemnitee with respect to a Proceeding or a particular claim in a Proceeding but the Company is able to indemnify the Indemnitee with respect to another claim in the Proceeding or indemnify or pay the Expenses or liabilities of another person or entity that is a party to the Proceeding, then, in lieu of indemnifying Indemnitee with respect to the matter for which indemnification is unavailable, the Company shall contribute to the amount actually and reasonably incurred by Indemnitee, whether for Expenses, judgments, fines or amounts paid or to be paid in settlement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the events and transactions giving cause to such Proceeding and (ii) the relative fault of the Company (and its directors, officers, employees and agents), on the one hand, and Indemnitee, on the other hand, in connection with such events and transactions. The Company hereby agrees to indemnify and hold harmless Indemnitee from any claims for contribution which may be brought by directors, officers or employees of the Company (other than Indemnitee) who may be jointly liable with Indemnitee for matters for which Indemnitee would be entitled to indemnification or contribution by the Company under this Agreement.
Company Indemnification The Company agrees to indemnify and hold harmless the Agent, its partners, members, directors, officers, employees and agents and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
Request for Indemnification and Indemnification Payments Indemnitee shall notify the Company promptly in writing upon receiving notice of any demand, judgment or other requirement for payment that Indemnitee reasonably believes to be subject to indemnification under the terms of this Agreement, and shall request payment thereof by the Company. Indemnification payments requested by Indemnitee under Section 3 hereof shall be made by the Company no later than sixty (60) days after receipt of the written request of Indemnitee. Claims for advancement of expenses shall be made under the provisions of Section 6 herein.
