Common use of Parent Claims Clause in Contracts

Parent Claims. From and after the Effective Time, each Indemnifying Securityholder shall be deemed to have agreed, and hereby agrees, that from and after the Closing Parent, Merger Sub, their respective affiliates (including, without limitation, following the Effective Time, the Surviving Corporation) and their respective directors, officers, employees, agents, representatives, successors and assigns (collectively, the "Parent Indemnified Parties") shall have full recourse against, and be entitled to be compensated and reimbursed from, the Escrow Shares (subject to the terms and conditions set forth herein and in the Escrow Agreement) for any and all Damages arising from or related to any of the following (each a "Parent Claim"): any inaccuracy in or breach of any representation or warranty made by the Company or the Representative in this Agreement or in any document, certificate or other instrument required to be delivered by the Company or the Representative under this Agreement as of the date hereof or as of the Closing Date in each case, as such representation or warranty would read if all qualifications as to Knowledge and materiality, including each reference to the defined term Company Material Adverse Effect, were deleted therefrom; provided that such deletions will be made solely for the purposes of calculating Damages but not for the purposes of determining whether or not any inaccuracy in or breach of any representation or warranty has occurred; any breach or non-fulfillment of any covenant or agreement made or to be performed by the Company or the Representative in this Agreement or in any agreement or instrument entered into by the Company or the Representative pursuant to this Agreement; any fraud, intentional misrepresentation or willful breach by the Company or the Representative (a "Fraud Claim"); any inaccuracy in the Securityholder Schedule or Allocation Schedule delivered to Parent; any Transfer Taxes for which the Company Stockholders are responsible pursuant to Section 14.8; any Transaction Expenses incurred by the Company which the Company does not have available cash to pay at the Effective Time; regardless of any disclosure on any Schedule, any payment or provision of benefits that constitutes an "excess parachute payment" (within the meaning of Section 280G(b) of the Code) and is made by the Company on or prior to the Closing Date or otherwise required to be paid by the Company or the Surviving Corporation pursuant to agreements or Company Benefit Plans entered into or adopted by the Company on or prior to the Closing Date other than any such payment or provision of benefits that, when combined with any other payments or benefits provided by the Company or the Surviving Corporation, would not constitute a "parachute payment" (within the meaning of Section 280G of the Code) but for an agreement between Parent or any Affiliate of Parent and the relevant "disqualified individual" entered into prior to the Closing Date (other than pursuant to this Agreement or as disclosed prior to the date of this Agreement to the Company); any D&O Indemnification Costs; any Excess Dissenting Share Consideration; any telephone calls on the Company's network by a user who is not the end customer of the Company or other toll fraud occurring on the Company's network during the six month period commencing on the Closing Date as the result of a network condition existing on the Closing Date; the matter described in Section 3.14(d) of the Disclosure Schedule (notwithstanding the disclosure of such matter in the Disclosure Schedule), to the extent pertaining to products or services of the type offered prior to the Effective Time; or the matter described in Schedule 14.1(l).

Parent Claims. From Subject to the terms and after the Effective Timeconditions of this Article 8, each Indemnifying Securityholder shall be deemed to have agreedShareholder, by virtue of the Merger and his receipt of any Merger Consideration, and the Principal, hereby agrees, that jointly and severally agree (without any right of contribution from and after the Closing Parent, Merger Sub, their respective affiliates (including, without limitation, following Company or the Effective Time, Surviving Corporation or any right of indemnification against the Company or the Surviving Corporation) to indemnify, defend and hold harmless Parent and each of its Subsidiaries and each of their respective directors, officers, employees, agents, representatives, successors agents and assigns Affiliates (collectively, the "Parent Indemnified PartiesGroup") shall have full recourse againstfrom and against any out-of-pocket loss, liability, damage, cost or expense (including reasonable attorneys' fees and be entitled disbursements and including amounts paid as deductibles under the Tail Policy) suffered, incurred or paid by any member of the Parent Group (collectively, all such amounts are hereinafter referred to be compensated and reimbursed from, the Escrow Shares (subject to the terms and conditions set forth herein and in the Escrow Agreementas "Parent Claims") for any and all Damages arising from which arise out of or related are attributable to any of the following following: (each a "Parent Claim"): any inaccuracy in or breach a) failure of any representation or warranty made by of the representations, warranties, covenants and agreements of the Company or and the Representative Principal contained in this Agreement including the Company Disclosure Schedule or in any documentother agreement, certificate or other instrument required document among or between the parties contemplated by or referred to herein (with respect to representations and warranties) to be delivered by true, complete and correct in all material respects or (with respect to covenants and agreements) fully performed and fulfilled in all material respects; (b) the Company or the Representative under this Agreement as of Company's failure to pay Taxes in any jurisdiction prior to the date hereof or as of the Closing Date in each case, as such representation or warranty would read if all qualifications as to Knowledge and materiality, including each reference to the defined term Company Material Adverse Effect, were deleted therefrom; provided that such deletions will be made solely for the purposes of calculating Damages but not for the purposes of determining whether or not any inaccuracy in or breach of any representation or warranty has occurred; any breach or non-fulfillment of any covenant or agreement made or to be performed by the Company or the Representative in this Agreement or in any agreement or instrument entered into by the Company or the Representative pursuant to this Agreement; any fraud, intentional misrepresentation or willful breach by the Company or the Representative (a "Fraud Claim"); any inaccuracy in the Securityholder Schedule or Allocation Schedule delivered to Parent; any Transfer Taxes for which the Company Stockholders are responsible pursuant to Section 14.8; any Transaction Expenses incurred by the Company which the Company does not have available cash to pay at the Effective Time; regardless of any disclosure on thereof herein) ("Tax Claims"); (c) the assertion by any Schedule, any payment or provision of benefits that constitutes an "excess parachute payment" (within the meaning of Section 280G(b) of the Code) and is made by the Company on or prior to the Closing Date or otherwise required to be paid by the Company or the Surviving Corporation pursuant to agreements or Company Benefit Plans entered into or adopted by the Company on or prior to the Closing Date other than any such payment or provision of benefits that, when combined with any other payments or benefits provided by the Company or the Surviving Corporation, would not constitute a "parachute payment" (within the meaning of Section 280G of the Code) but for an agreement between Parent or any Affiliate of Parent and the relevant "disqualified individual" entered into prior to the Closing Date (other than pursuant to this Agreement or as disclosed prior to the date of this Agreement to the Company); any D&O Indemnification Costs; any Excess Dissenting Share Consideration; any telephone calls on the Company's network by a user who is not the end customer stockholder of the Company of any claim, or other toll institution by any such stockholder of any action or proceeding, which arises out of the issuance and sale of the Subordinated Notes, the Recapitalization or the merger or the transactions contemplated hereby (excluding any proceeding for appraisal of such stockholder's shares pursuant to Section 262 of the Act); or (d) any fraud occurring on or any fraudulent misrepresentation committed by the Company's network during the six month period commencing on the Closing Date as the result of , a network condition existing on the Closing Date; the matter described in Section 3.14(d) of the Disclosure Schedule (notwithstanding the disclosure of such matter in the Disclosure Schedule), to the extent pertaining to products or services of the type offered prior to the Effective Time; Shareholder or the matter described Principal in Schedule 14.1(lconnection with the transactions contemplated by this Agreement ("Fraud Claims").

Parent Claims. From and after the Effective Time, each Indemnifying Securityholder shall be deemed to have agreed, and hereby agrees, that from and after the Closing Parent, Merger Sub, their respective affiliates (including, without limitation, following the Effective Time, the Surviving Corporation) and their respective directors, officers, employees, agents, representatives, successors and assigns (collectively, the "“Parent Indemnified Parties"”) shall have full recourse against, and be entitled to be compensated and reimbursed from, the Escrow Shares (subject to the terms and conditions set forth herein and in the Escrow Agreement) for any and all Damages arising from or related to any of the following (each a "“Parent Claim"): ”): (a) any inaccuracy in or breach of any representation or warranty made by the Company or the Representative in this Agreement or in any document, certificate or other instrument required to be delivered by the Company or the Representative under this Agreement as of the date hereof or as of the Closing Date in each case, as such representation or warranty would read if all qualifications as to Knowledge and materiality, including each reference to the defined term Company Material Adverse Effect, were deleted therefrom; provided that such deletions will be made solely for the purposes of calculating Damages but not for the purposes of determining whether or not any inaccuracy in or breach of any representation or warranty has occurred; ; (b) any breach or non-fulfillment of any covenant or agreement made or to be performed by the Company or the Representative in this Agreement or in any agreement or instrument entered into by the Company or the Representative pursuant to this Agreement; ; (c) any fraud, intentional misrepresentation or willful breach by the Company or the Representative (a "“Fraud Claim"”); ; (d) any inaccuracy in the Securityholder Schedule or Allocation Schedule delivered to Parent; ; (e) any Transfer Taxes for which the Company Stockholders are responsible pursuant to Section 14.8; ; (f) any Transaction Expenses incurred by the Company which the Company does not have available cash to pay at the Effective Time; ; (g) regardless of any disclosure on any Schedule, any payment or provision of benefits that constitutes an "“excess parachute payment" ” (within the meaning of Section 280G(b) of the Code) and is made by the Company on or prior to the Closing Date or otherwise required to be paid by the Company or the Surviving Corporation pursuant to agreements or Company Benefit Plans entered into or adopted by the Company on or prior to the Closing Date other than any such payment or provision of benefits that, when combined with any other payments or benefits provided by the Company or the Surviving Corporation, would not constitute a "“parachute payment" ” (within the meaning of Section 280G of the Code) but for an agreement between Parent or any Affiliate of Parent and the relevant "“disqualified individual" ” entered into prior to the Closing Date (other than pursuant to this Agreement or as disclosed prior to the date of this Agreement to the Company); ; (h) any D&O Indemnification Costs; ; (i) any Excess Dissenting Share Consideration; ; (j) any telephone calls on the Company's network by a user who is not the end customer of the Company or other toll fraud occurring on the Company's ’s network during the six month period commencing on the Closing Date as the result of a network condition existing on the Closing Date; ; (k) the matter described in Section 3.14(d) of the Disclosure Schedule (notwithstanding the disclosure of such matter in the Disclosure Schedule), to the extent pertaining to products or services of the type offered prior to the Effective Time; or or (l) the matter described in Schedule 14.1(l).

Parent Claims. From Subject to the terms and after conditions of this Article 8, the Effective Time, each Indemnifying Securityholder shall be deemed to have agreed, Company Stockholders and the Transaction Incentive Plan Recipients hereby agrees, that severally (and not jointly) agree (without any right of contribution from and after the Closing Parent, Merger Sub, their respective affiliates (including, without limitation, following Company or the Effective Time, Surviving Corporation or any right of indemnification against the Company or the Surviving Corporation) to indemnify, defend and hold harmless Parent and each of its Subsidiaries and each of their respective directors, officers, employees, agents, representatives, successors agents and assigns Affiliates (collectively, the "“Parent Indemnified Parties"Group”) from and against any loss (which term shall have full recourse againstinclude any amount described in clauses (iii) through (vii) below), liability, damage (other than punitive damages awarded for the benefit of a member of the Parent Group), cost or expense (including costs and be entitled reasonable attorneys’ fees and disbursements) suffered, incurred or paid by any member of the Parent Group (collectively, all such amounts are hereinafter referred to be compensated and reimbursed from, the Escrow Shares (subject to the terms and conditions set forth herein and in the Escrow Agreementas “Parent Claims”) for any and all Damages arising from or related to any of the following following: (each i) as a "Parent Claim"): result of any inaccuracy in or breach of any representation representation, warranty, covenant or warranty made by agreement of the Company or the Representative contained in this Agreement or in any documentother agreement, certificate or other instrument required document among or between the parties contemplated by or referred to be delivered by herein, (ii) as a result of any claim that the Company or Stockholder Representative has not properly distributed the Representative under this Agreement as of the date hereof or as of the Closing Date in each caseTotal Merger Consideration, as such representation or warranty would read if all qualifications as to Knowledge and materiality, including each reference to the defined term Company Material Adverse Effect, were deleted therefrom; provided that such deletions will be made solely for the purposes of calculating Damages but not for the purposes of determining whether or not any inaccuracy in or breach of any representation or warranty has occurred; any breach or non-fulfillment of any covenant or agreement made or to be performed by the Company or the Representative in this Agreement or in any agreement or instrument entered into by the Company or the Representative pursuant to this Agreement; any fraud, intentional misrepresentation or willful breach by the Company or the Representative (a "Fraud Claim"); any inaccuracy iii) in the Securityholder Schedule or Allocation Schedule amount, if any, by which the Outstanding Indebtedness, the Transaction Expenses and the Transaction Incentive Plan Payments exceed the respective amounts thereof set forth in the certificate delivered to Parent; any Transfer Taxes for which the Company Stockholders are responsible Parent pursuant to Section 14.8; 2.7(a)(5), (iv) in the amount, if any, owed to Parent pursuant to Section 2.8(d), (v) in the amount, if any, owed to Parent pursuant to Section 2.8(f), (vi) in the amount of any Transaction Expenses incurred Related D&O Indemnity Claims, and (vii) in the amount, if any, by the Company which the Company does Uncollectible Receivables exceed the sum of (A) the allowance for doubtful accounts stated on the Final Statement of Closing Working Capital and (B) the reserve with respect to unbilled work-in-process stated on the Final Statement of Closing Working Capital. The “Uncollectible Receivables” shall mean the amount of accounts receivable stated on the Final Statement of Closing Working Capital (calculated without regard to the allowance for doubtful accounts, and excluding the Special Receivables which are accounts receivable) and unbilled work-in-process stated on the Final Statement of Closing Working Capital (calculated without regard to any reserve with respect thereto, and excluding the Special Receivables which are unbilled work-in-process) which shall not have available cash to pay at the Effective Time; regardless of any disclosure on any Schedule, any payment or provision of benefits that constitutes an "excess parachute payment" (within the meaning of Section 280G(b) of the Code) been billed and is made by the Company collected on or prior to before March 31, 2005 (the Closing Date or otherwise required to “2005 Uncollectible Amount”); provided, however, that as of March 31, 2006 the Uncollectible Receivables shall be paid by recalculated and shall mean the Company or 2005 Uncollectible Amount plus the Surviving Corporation pursuant to agreements or Company Benefit Plans entered into or adopted by the Company amount of Special Receivables which shall not have been billed and collected on or prior to the Closing Date other than any such payment or provision of benefits thatbefore March 31, when combined with any other payments or benefits provided by the Company or the Surviving Corporation, would not constitute a "parachute payment" (within the meaning of Section 280G of the Code) but for an agreement between Parent or any Affiliate of Parent and the relevant "disqualified individual" entered into prior to the Closing Date (other than pursuant to this Agreement or as disclosed prior to the date of this Agreement to the Company); any D&O Indemnification Costs; any Excess Dissenting Share Consideration; any telephone calls on the Company's network by a user who is not the end customer of the Company or other toll fraud occurring on the Company's network during the six month period commencing on the Closing Date as the result of a network condition existing on the Closing Date; the matter described in Section 3.14(d) of the Disclosure Schedule (notwithstanding the disclosure of such matter in the Disclosure Schedule), to the extent pertaining to products or services of the type offered prior to the Effective Time; or the matter described in Schedule 14.1(l)2006.

Parent Claims. From and after the Effective Time, each Each Indemnifying Securityholder Stockholder shall be deemed to have agreed, and hereby agrees, that from and after the Closing Parent, Merger Sub, their respective affiliates (including, without limitation, following the Effective Time, the Surviving Corporation) and their respective directors, officers, employees, agents, representatives, successors and assigns (collectively, the "“Parent Indemnified Parties"”) shall have full recourse against, and be entitled to be compensated and reimbursed from, the Escrow Shares Funds (subject to the terms and conditions set forth herein and in the Escrow Agreement) for any and all Damages arising from or related to any of the following (each a "“Parent Claim"): ”): (a) any inaccuracy in or breach of any representation or warranty made by the Company or the Representative in this Agreement or in any document, certificate or other instrument required to be delivered by the Company or the Representative under this Agreement as of the date hereof or as of the Closing Date in each case, as such representation or warranty would read if all qualifications as to Knowledge and materiality, including including, without limitation, each reference to the defined term Company Material Adverse Effect, were deleted therefrom; provided that such therefrom (except in the first sentence of Section 3.8 and clause (iii) of Section 3.21(a)). Such deletions will be made solely for the purposes of calculating Damages but not for the purposes of determining whether or not any inaccuracy in or breach of any representation or warranty has occurred; ; (b) any breach or non-fulfillment of any covenant or agreement made or to be performed by the Company or the Representative in this Agreement or in any agreement or instrument entered into by the Company or the Representative pursuant to in connection with this Agreement; ; (c) any fraud, intentional misrepresentation or willful breach by the Company or the Representative (a "“Fraud Claim"”); ; (d) any inaccuracy in the updated Securityholder Schedule or Allocation Schedule delivered to Parent; Parent pursuant to Section 10.1(o); (e) any Transfer Taxes for which the Company Stockholders are responsible pursuant to Section 14.8; ; (f) any Transaction Expenses incurred by fees, commissions or other payments (including indemnity payments) to any Person having acted or claiming to have acted, directly or indirectly, as a broker, finder or financial advisor for any Company Securityholder or, prior to the Closing, the Company which in connection with the Company does transactions contemplated by this Agreement to the extent not have available cash to pay at otherwise included in the Effective TimeTransaction Expenses; or (g) regardless of any disclosure on any Schedule, any payment or provision of benefits that constitutes an "“excess parachute payment" ” (within the meaning of Section 280G(b) of the Code) and is made by the Company on or prior to the Closing Date or otherwise required to be paid by the Company or the Surviving Corporation pursuant to agreements or Company Benefit Plans entered into or adopted by the Company on or prior to the Closing Date other than any such payment or provision of benefits that, when combined with any other payments or benefits provided by the Company or the Surviving Corporation, would not constitute a "parachute payment" (within the meaning of Section 280G of the Code) but for an agreement between Parent or any Affiliate of Parent and the relevant "disqualified individual" entered into prior to the Closing Date (other than pursuant to this Agreement or as disclosed prior to the date of this Agreement to the Company); any D&O Indemnification Costs; any Excess Dissenting Share Consideration; any telephone calls on the Company's network by a user who is not the end customer of the Company or other toll fraud occurring on the Company's network during the six month period commencing on the Closing Date as the result of a network condition existing on the Closing Date; the matter described in Section 3.14(d) of the Disclosure Schedule (notwithstanding the disclosure of such matter in the Disclosure Schedule), to the extent pertaining to products or services of the type offered prior to the Effective Time; or the matter described in Schedule 14.1(l).