Common use of Parent Indemnification Clause in Contracts

Parent Indemnification. (a) From and after the consummation of the Merger, subject to the terms and limitations of this ARTICLE VIII, Parent shall indemnify and hold harmless the Seller Indemnifying Parties and their respective directors, officers and other employees (each, an “Seller Indemnified Party” and collectively, the “Seller Indemnified Parties”), from and against all Losses paid, incurred, suffered or sustained by the Seller Indemnified Parties, or any of them (regardless of whether or not such Losses relate to any third party claims), resulting from or arising out of any of the following: (i) any breach of or inaccuracy in, as of the date hereof or as of the Closing, a representation or warranty of Parent or Merger Sub set forth in this Agreement; provided, however, that in the event of any such breach or inaccuracy, for purposes of determining the amount of any Loss relating thereto no effect will be given to any qualifications based on the word “material” or similar phrases (including “Company Material Adverse Effect”) contained therein (it being agreed and understood however that such qualifications will continue to apply, as applicable, to the determination of whether a breach or inaccuracy of representation or warranty has occurred); (ii) any failure by Parent or Merger Sub to perform or comply with any of its covenants or agreements set forth in this Agreement; and (iii) Fraud on the part of Parent or its Affiliates in connection with this Agreement or the Transactions. (b) Subject to Section 8.2(c), payments made to a Seller Indemnified Party pursuant to any indemnification obligations under this ARTICLE VIII shall be paid in cash by wire transfer to the Escrow Agent of immediately available funds and the Escrow Agent shall distribute such funds to the Seller Indemnified Parties in accordance with their Pro Rata Portion as calculated by the Stockholder Representative and provided in writing to the Escrow Agent (it being understood that Parent shall assist the Stockholder Representative in such distribution if the Escrow Agent is unwilling or unable to make such distribution). (c) Any payments made to a Seller Indemnified Party pursuant to any indemnification obligations under this ARTICLE VIII will be treated as adjustments to the Total Consideration for Tax purposes and such agreed treatment will govern for purposes of this Agreement, unless otherwise required by applicable Legal Requirements. In the event that the result of such payments in cash could reasonably be determined to cause the Merger to violate the requirement of Section 368(a)(2)(E)(ii) of the Code that Parent acquire “control” (as defined in Section 368(c) of the Code) of the Company in exchange for voting stock of Parent, then the Stockholder Representative and Parent will negotiate in good faith as to whether it would be reasonable to satisfy (in whole or in part) such indemnification obligation in Parent Capital Stock to the extent necessary to not violate such requirement, taking into account the negative impact of such violation on the former holders of Company Capital Stock relative to any negative impact on Parent of satisfying such indemnification obligation through the issuance of Parent Capital Stock. (d) Nothing in this Agreement shall limit the right of any Seller Indemnified Party which is a party to a Related Agreement to pursue remedies under such Related Agreement against the other parties thereto. Notwithstanding anything to the contrary contained in this Agreement, no breach of any representation, warranty, covenant or agreement contained herein or in any Related Agreement shall give rise to any right on the part of any Seller Indemnified Party, after the consummation of the Transactions, to rescind this Agreement or any of the transactions contemplated hereby.

Parent Indemnification. If (ax) From from and after the consummation Closing, the Company shall have, or Parent shall have caused the Company, to transfer, sell or otherwise dispose of any assets of the MergerCompany (which shall not include any transfers, subject sales or other dispositions of the capital stock of the Company) to any Person or Persons and (y) after such transfer, sale or other disposition, the terms fair market value of the assets of the Company and limitations the Subsidiaries is equal to one-third (1/3) or less of this ARTICLE VIIIthe aggregate fair market value of the assets of the Company and the Subsidiaries as of the Closing Date on a consolidated basis, then from and after the first such transfer, sale or other disposition as a result of which the conditions set forth in clause (x) and (y) are met (the “Parent Indemnification Commencement Date”), Parent shall indemnify indemnify, defend and hold harmless harmless, and advance expenses to, each individual who served as a director or officer of the Seller Indemnifying Parties and their respective directors, officers and other employees (each, an “Seller Indemnified Party” and collectively, the “Seller Indemnified Parties”), from and against all Losses paid, incurred, suffered or sustained by the Seller Indemnified Parties, Company or any Subsidiary at any time prior to the Effective Time as and to the same extent set forth in the certificate of them (regardless of whether or not such Losses relate to any third party claims), resulting from or arising out of any incorporation of the following: (i) any breach of or inaccuracy in, Surviving Corporation as of the date hereof or Effective Time, which will read as set forth in Exhibit B, and the bylaws of the Surviving Corporation as of the ClosingEffective Time, a representation or warranty of Parent or Merger Sub which will read as set forth in this AgreementExhibit C; provided, however, that Parent shall not be required to so indemnify and advance expenses to such persons if, in connection with a sale of all or substantially all of the event assets of any the Company consummated prior to or as of the Parent Indemnification Commencement Date, the purchaser of such breach or inaccuracy, for purposes of determining assets has agreed to provide such indemnification and advance such expenses and the amount of any Loss relating thereto no effect will be given to any qualifications based on the word “material” or similar phrases (including “Company Material Adverse Effect”) contained therein (it being agreed and understood however that such qualifications will continue to apply, as applicable, to the determination of whether a breach or inaccuracy of representation or warranty has occurred); (ii) any failure by Parent or Merger Sub to perform or comply with any of its covenants or agreements third party beneficiaries set forth in this Agreement; and (iiiSection 5.7(d) Fraud on the part of Parent or its Affiliates in connection with this Agreement or the Transactions. (b) Subject to Section 8.2(c), payments made to a Seller Indemnified Party pursuant to any indemnification obligations under this ARTICLE VIII shall be paid in cash by wire transfer to the Escrow Agent of immediately available funds and the Escrow Agent shall distribute such funds to the Seller Indemnified Parties in accordance with their Pro Rata Portion as calculated by the Stockholder Representative and provided in writing to the Escrow Agent (it being understood that Parent shall assist the Stockholder Representative in such distribution if the Escrow Agent is unwilling or unable to make such distribution). (c) Any payments made to a Seller Indemnified Party pursuant to any indemnification obligations under this ARTICLE VIII will be treated as adjustments to the Total Consideration for Tax purposes and such agreed treatment will govern for purposes of this Agreement, unless otherwise required by applicable Legal Requirements. In the event that the result are express third party beneficiaries of such payments in cash could reasonably be determined to cause the Merger to violate the requirement of Section 368(a)(2)(E)(ii) of the Code that Parent acquire “control” (as defined in Section 368(c) of the Code) of the Company in exchange for voting stock of Parent, then the Stockholder Representative and Parent will negotiate in good faith as to whether it would be reasonable to satisfy (in whole or in part) such indemnification obligation in Parent Capital Stock to the extent necessary to not violate such requirement, taking into account the negative impact of such violation on the former holders of Company Capital Stock relative to any negative impact on Parent of satisfying such indemnification obligation through the issuance of Parent Capital Stockpurchaser. (d) Nothing in this Agreement shall limit the right of any Seller Indemnified Party which is a party to a Related Agreement to pursue remedies under such Related Agreement against the other parties thereto. Notwithstanding anything to the contrary contained in this Agreement, no breach of any representation, warranty, covenant or agreement contained herein or in any Related Agreement shall give rise to any right on the part of any Seller Indemnified Party, after the consummation of the Transactions, to rescind this Agreement or any of the transactions contemplated hereby.

Parent Indemnification. (a) From Subject to the other terms and conditions, limitations, exceptions and other provisions of this Agreement, from and after the consummation of Closing, Parent and the MergerSurviving Corporation (the “Parent Indemnitees”) shall be indemnified and held harmless solely from the General Escrow Fund or Special Escrow Fund, subject as applicable, up to the terms and limitations of this ARTICLE VIIIGeneral Escrow Amount or Special Escrow Amount, Parent shall indemnify and hold harmless as applicable, to the Seller Indemnifying Parties and their respective directors, officers and other employees (each, an “Seller Indemnified Party” and collectively, the “Seller Indemnified Parties”), from and against all Losses paid, incurred, suffered or sustained by the Seller Indemnified Parties, or any of them (regardless of whether or not such Losses relate to any third party claims), resulting from or arising out extent of any of the followingLosses resulting from: (i) any the breach of or inaccuracy in, as of the date hereof or as of the Closing, a any representation or warranty of Parent the Company contained in Article III; (ii) the breach of or Merger Sub failure to perform by the Company any of its covenants contained herein (other than a Post-Closing Obligation); (iii) any breach or failure to perform by Stockholders’ Agent of any of its covenants contained herein; (iv) any liability for Taxes (or nonpayment thereof) of the Company or any Subsidiary for any Pre-Closing Tax Period; and (v) the matter set forth on Schedule 9.2(a)(v). (b) Without limiting the other limitations and exceptions set forth in this Agreement, Parent Indemnitees’ claims for indemnification shall be limited as described below in this Section 9.2(b). (i) Parent Indemnitees shall not be entitled to any indemnification pursuant to Section 9.2(a)(i) for any Loss unless the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to Section 9.2(a)(i) exceeds an amount equal to $500,000 (the “Threshold Amount”), and then only for such full amount of Losses in excess of the Threshold Amount; provided, however, that no amount will be payable for Losses under Section 9.2(a)(i) relating to individual Losses or aggregate related Losses in the event amount of $75,000 or less by the Parent Indemnitees (a “De Minimis Claim”). The limitations contained in this Section 9.2(b)(i) shall not apply to the Fundamental Reps nor to the eHealth Licensing Payments. (ii) Parent Indemnitees shall not be entitled to any indemnification pursuant to Section 9.2(a) to the extent such Losses were reflected and included in the final calculation of Merger Consideration. (iii) Parent Indemnitees acknowledge and agree that, subject to the other limitations contained herein, (A) any Losses incurred as a result of any matter for which indemnification is available under Sections 9.2(a)(i)-(iv) shall be limited to the then-remaining General Escrow Fund and may not exceed in the aggregate the General Escrow Amount (“Stockholder Cap”) and no indemnification pursuant to Sections 9.2(a)(i)-(iv) shall be payable thereafter and (B) any Losses incurred as a result of any matter for which indemnification is available under Section 9.2(a)(v) shall be limited to the then-remaining Special Escrow Fund and may not exceed in the aggregate the Special Escrow Amount and no indemnification pursuant to Section 9.2(a)(v) shall be payable thereafter. (iv) All claims for indemnification by a Parent Indemnitee under (A) Sections 9.2(a)(i)-(iv) must be made on or before the General Escrow Survival Date and (B) Section 9.2(a)(v) must be made on or before the Special Escrow Survival Date. In the event a claim has been properly made on or prior to the General Escrow Survival Date or Special Escrow Survival Date, as applicable, and such claim is unresolved as of the General Escrow Survival Date or Special Escrow Survival Date, as applicable, then the right to indemnification with respect to such claim shall remain in effect until such matter shall have been finally resolved. (v) The limitations contained in this Section 9.2(b) shall not apply with respect to matters arising out of Fraud. (vi) Notwithstanding anything in this Agreement to the contrary, once a breach of a representation or inaccuracywarranty has been established (after giving effect to Qualifications), for the purposes of determining the amount of Losses that may be recovered under Section 9.2(a)(i) only with respect to such breach, such Qualifications shall be disregarded. (vii) Parent Indemnitees shall not have any Loss relating thereto no effect will be given right to any qualifications based on the word “material” or similar phrases (including “Company Material Adverse Effect”) contained therein (it being agreed and understood however that such qualifications will continue to apply, as applicable, indemnification under this Agreement with respect to the determination of whether a breach or inaccuracy of representation or warranty has occurred); (ii) any failure by Parent or Merger Sub to perform or comply with any of its covenants or agreements representations and warranties set forth in this Agreement; and Section 3.10 to the extent such Losses (iiiA) Fraud on are attributable to a Tax period (or portion thereof) beginning after the part Closing Date or (B) are due to the unavailability in a Tax period (or portion thereof) beginning after the Closing Date of Parent any net operating losses, credits or its Affiliates in connection with this Agreement or the Transactionsother Tax attribute from a Pre-Closing Tax Period. (bviii) Subject Notwithstanding anything in this Agreement to the contrary but subject to the limitations in this Section 8.2(c9.2, each Party agrees that, if the Parent Indemnitees are entitled to indemnification pursuant to Sections 9.2(a)(i)-(iv), payments made to a Seller Indemnified Party pursuant to any indemnification obligations under this ARTICLE VIII shall be paid in cash (1) the General Escrow Fund then held by wire transfer to the Escrow Agent will be the first source of immediately available funds recovery for such amounts payable to Parent Indemnitees and (2) if available, the Escrow Agent shall distribute R&W Insurance Policy will be the remaining source of recovery for the Parent Indemnitees with respect to such funds to the Seller Indemnified Parties in accordance with their Pro Rata Portion as calculated by the Stockholder Representative and provided in writing to the Escrow Agent (it being understood that Parent shall assist the Stockholder Representative in such distribution if the Escrow Agent is unwilling or unable to make such distribution)claims. (cix) Any payments made Notwithstanding anything in this Agreement to the contrary, each Party agrees that, other than with regard to matters arising out of Fraud, the sole recourse of Parent Indemnitees against the Company, the Stockholders, the Company Option Holders or the Stockholders’ Agent for any Losses incurred as a Seller Indemnified Party pursuant result of any matter for which indemnification is available under Sections 9.2(a)(i)-(iv) is the General Escrow Fund and that from and after the General Escrow Survival Date the Parent Indemnitees will have no further recourse under Sections 9.2(a)(i)-(iv) other than for Losses arising out of or relating to matters subject to any indemnification obligations under this ARTICLE VIII will be treated as adjustments Indemnification Notice provided prior to the Total Consideration for Tax purposes and General Escrow Survival Date until such agreed treatment will govern for purposes of this Agreement, unless otherwise required by applicable Legal Requirements. In the event that the result of such payments in cash could reasonably be determined to cause the Merger to violate the requirement of Section 368(a)(2)(E)(ii) of the Code that Parent acquire “control” (as defined in Section 368(c) of the Code) of the Company in exchange for voting stock of Parent, then the Stockholder Representative and Parent will negotiate in good faith as to whether it would be reasonable to satisfy (in whole or in part) such indemnification obligation in Parent Capital Stock to the extent necessary to not violate such requirement, taking into account the negative impact of such violation on the former holders of Company Capital Stock relative to any negative impact on Parent of satisfying such indemnification obligation through the issuance of Parent Capital Stockmatters are finally resolved. (dx) Nothing Notwithstanding anything in this Agreement shall limit to the right contrary, each Party agrees that, other than with regard to matters arising out of Fraud, the sole recourse of Parent Indemnitees against the Company, the Stockholders, the Company Option Holders or the Stockholders’ Agent for any Losses incurred as a result of any Seller Indemnified Party matter for which indemnification is a party available under Section 9.2(a)(v) is the Special Escrow Fund and that from and after the Special Escrow Survival Date the Parent Indemnitees will have no further recourse under Section 9.2(a)(v) other than for Losses arising out of or relating to a Related Agreement matters subject to pursue remedies under such Related Agreement against the other parties thereto. Notwithstanding anything any Indemnification Notice provided prior to the contrary contained in this Agreement, no breach of any representation, warranty, covenant or agreement contained herein or in any Related Agreement shall give rise to any right on the part of any Seller Indemnified Party, after the consummation of the Transactions, to rescind this Agreement or any of the transactions contemplated herebySpecial Escrow Survival Date until such matters are finally resolved.

Parent Indemnification. (a) From Except as set forth below, Parent agrees to indemnify the Company and after the consummation its subsidiaries, and each of the MergerCompany’s and its subsidiaries’ respective officers, subject to the terms and limitations of this ARTICLE VIII, Parent shall indemnify and hold harmless the Seller Indemnifying Parties and their respective directors, officers stockholders, employees and other employees agents (each, an “Seller Indemnified Party” and collectively, the “Seller Indemnified Parties”), ) from and against any and all Losses paid, incurred, suffered or sustained by which any of the Seller Indemnified PartiesParties may incur or sustain, or any of them (regardless of whether or not such Losses relate to any third party claims), resulting from or arising out of which any of the followingSeller Indemnified Parties may be subjected, arising out of: (ia) any breach of or inaccuracy in, as of the date hereof or as of the Closing, a any representation or warranty of Parent or Merger Sub LLC set forth herein, whether or not the Company or the Shareholders relied thereon or had knowledge thereof; or (b) any breach in any respect of any covenant or agreement of the Parent or Merger LLC set forth herein. (c) any fraud, willful misconduct, bad faith or criminal acts (other than misdemeanors) of the Parent or any of its Subsidiaries; and (d) any costs of enforcing this AgreementAgreement and all actions, suits, proceedings, claims and demands incident to the foregoing or such indemnification; Notwithstanding any other provision of Section 7.3 to the contrary, no claim for indemnification with respect to any matter for which there is an Indemnification Termination Date may be brought after such Indemnification Termination Date; provided, however, that in the event of any such breach or inaccuracy, for purposes of determining the amount of any Loss relating thereto no effect will be given to any qualifications based on the word “material” or similar phrases (including “Company Material Adverse Effect”) contained therein (it being agreed and understood however that such qualifications will continue to apply, as applicable, to the determination of whether a breach or inaccuracy of representation or warranty has occurred); (ii) any failure by Parent or Merger Sub to perform or comply with any of its covenants or agreements set forth in this Agreement; and (iii) Fraud on the part of Parent or its Affiliates in connection with this Agreement or the Transactions. (b) Subject to Section 8.2(c), payments made to if a Seller Indemnified Party pursuant has delivered to any indemnification obligations under this ARTICLE VIII shall be paid Parent written notice of such a claim describing in cash by wire transfer reasonable detail the basis for such claim prior to the Escrow Agent of immediately available funds and the Escrow Agent shall distribute such funds to the Seller Indemnified Parties in accordance with their Pro Rata Portion as calculated by the Stockholder Representative and provided in writing to the Escrow Agent (it being understood that Parent shall assist the Stockholder Representative in such distribution if the Escrow Agent is unwilling or unable to make such distribution). (c) Any payments made to a Seller Indemnified Party pursuant to any indemnification obligations under this ARTICLE VIII will be treated as adjustments to the Total Consideration for Tax purposes and such agreed treatment will govern for purposes of this Agreement, unless otherwise required by applicable Legal Requirements. In the event that the result of such payments in cash could reasonably be determined to cause the Merger to violate the requirement of Section 368(a)(2)(E)(ii) of the Code that Parent acquire “control” (as defined in Section 368(c) of the Code) of the Company in exchange for voting stock of ParentIndemnification Termination Date, then the Stockholder Representative and Parent will negotiate in good faith as to whether it would be reasonable to satisfy (in whole or in part) such indemnification obligation in Parent Capital Stock with respect to such claim shall survive the extent necessary to not violate Indemnification Termination Date until such requirement, taking into account the negative impact of such violation on the former holders of Company Capital Stock relative to any negative impact on Parent of satisfying such indemnification obligation through the issuance of Parent Capital Stockclaim is resolved. (d) Nothing in this Agreement shall limit the right of any Seller Indemnified Party which is a party to a Related Agreement to pursue remedies under such Related Agreement against the other parties thereto. Notwithstanding anything to the contrary contained in this Agreement, no breach of any representation, warranty, covenant or agreement contained herein or in any Related Agreement shall give rise to any right on the part of any Seller Indemnified Party, after the consummation of the Transactions, to rescind this Agreement or any of the transactions contemplated hereby.