Common use of Survival of Representations and Warranties; Indemnity Clause in Contracts

Survival of Representations and Warranties; Indemnity. The representations and warranties of the Shareholders in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing and shall terminate twelve (12) months after the Closing (the "Expiration Date"); provided, however, that (i) the representations and warranties and covenants relating or pertaining to any Tax or Returns related to such Tax set forth in Section 2.10, Section 2.29(c) and Section 6.7 hereof, shall survive until the expiration of all applicable statutes of limitations, or extensions thereof, governing each Tax or Returns related to such Tax and (ii) the representations and warranties set forth in Section 2.3, Section 2.29(a) and Article III hereof shall survive the Closing and continue for a period of four (4) years after the Closing, except for Section 3.7, which shall survive until the last issuance of Incentive Stock pursuant to Section 1.2(b). The Shareholders shall, jointly and severally in the case of the Holding Shareholder and severally in the case of the other Shareholders, except as to the Escrow Amount, in which case liability shall be joint and several as to all of the Shareholders, indemnify and hold harmless NEON and its affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (hereinafter individually a "Loss" and collectively "Losses"), incurred by NEON, its officers, directors, or affiliates, related to or arising out of any inaccuracy or breach of the representations, warranties, and covenants specified in clauses (i) and (ii) hereof. Such indemnity shall be limited to a maximum of $16.5 million for the Holding Shareholder and for the other Shareholders such indemnity shall be limited to a maximum of their portion of the Shareholder consideration set forth in Section 1.2. NEON's representations and warranties contained in this Agreement shall terminate at the Closing.

Survival of Representations and Warranties; Indemnity. The Company's representations and warranties of the Shareholders in this Agreement or in any instrument delivered pursuant to this Agreement (each as modified by the Company Schedules) shall survive the Closing Merger and shall terminate twelve (12) months after continue until the Closing earlier of one year or the first release of audited financial statements containing the combined results of Parent and the Company (the "Expiration DateEXPIRATION DATE"); provided, however, that (i) the Company's representations and warranties and covenants relating or pertaining to (i) Section 2.2, (ii) any Tax federal or state income tax or Returns related to such Tax federal or state income tax set forth in Section 2.102.8 hereof or (iii) Section 2.11 (collectively, the "SPECIFIC REPRESENTATIONS") shall not terminate until 5 p.m., California time, on the first anniversary of the Closing Date (the "FINAL EXPIRATION DATE"). The stockholders of the Company (the "PRINCIPAL SHAREHOLDERS") shall indemnify Parent and its affiliates for any Loss (as defined in Section 2.29(c7.2 below) and Section 6.7 hereofincurred by Parent, shall survive until its officers, directors or affiliates (including the expiration Surviving Corporation) directly or indirectly as a result of all applicable statutes an inaccuracy or breach of limitations, or extensions thereof, governing each Tax or Returns related to such Tax and (ii) the representations and warranties set forth of the Company contained in Section 2.3the Specific Representations; provided, Section 2.29(a) and Article III hereof shall survive however, that the Closing and continue for a period of four (4) years after the Closing, except for Section 3.7, which shall survive until the last issuance of Incentive Stock pursuant to Section 1.2(b). The Shareholders maximum indemnity shall, jointly in the case of Section 2.2, be equal to the Aggregate Parent Share Number issuable to the stockholders of the Company in the Merger, and severally shall, in the case of the Holding Shareholder above-referenced portions of Section 2.8 and severally the entirety of Section 2.11, be equal to 10% of the Aggregate Parent Share Number issuable to the stockholders of the Company in the case Merger (the "PARENT INDEMNIFICATION"). If payment is made for indemnification in cash instead of in shares, the value of the other Shareholders, except as to the Escrow Amount, in which case liability Aggregate Parent Share Number shall be joint and several as to all of calculated using the Shareholdersaverage closing sale price for the ten (10) most recent trading days ending on the Closing Date. Neither Parent, indemnify and hold harmless NEON and its affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (hereinafter individually a "Loss" and collectively "Losses"), incurred by NEON, nor its officers, directors or affiliates (including the Surviving Corporation) shall be entitled to any claim against the Escrow Fund, the Specific Representations or otherwise with respect to any matter for which Parent was entitled to a Purchase Price Reduction in accordance with Section 1.6(g)(iii). Delivery of indemnification amounts shall be pro rata from the stockholders. Provided that D2 does not refuse to provide the D2 Agreement, Parent shall not be entitled to any recourse against the Company, or its shareholders, optionholders, affiliates, directors, officers, employees or affiliatesagents, related for Losses incurred by the Company in connection with any claim for damages by D2 against the Company. To the extent that the Consideration has been reduced pursuant to or arising out of any inaccuracy or breach of Section 1.6(g)(iii), the representations, warranties, and covenants specified in clauses (i) and (ii) hereof. Such indemnity Losses covering such reduction shall not be limited recovered by Parent pursuant to a maximum of $16.5 million for the Holding Shareholder and for the other Shareholders such indemnity shall be limited to a maximum of their portion of the Shareholder consideration set forth in Section 1.2. NEON's representations and warranties contained in this Agreement shall terminate at the Closingsection.

Survival of Representations and Warranties; Indemnity. The representations and warranties of the Shareholders in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing and shall terminate twelve (12) months after the Closing (the "Expiration Date"); provided, however, that (i) the representations and warranties and covenants relating or pertaining to any Tax or Returns related to such Tax set forth in Section 2.10, Section 2.29(c) 2.10 and Section 6.7 hereof, shall survive until the expiration of all applicable statutes of limitations, or extensions thereof, governing each Tax or Returns related to such Tax and (ii) the representations and warranties set forth in Section 2.3, Section 2.29(a) 2.3 and Article III hereof shall survive the Closing and continue for a period of four (4) years after the Closing, except for Section 3.7, which shall survive until the last issuance of Incentive Stock pursuant to Section 1.2(b). The Shareholders shallshall severally, jointly and severally in the case of the Holding Shareholder and severally in the case of the other Shareholders, except as to the Escrow Amount, in which case liability shall be joint and several as to all of the Shareholdersbut not jointly, indemnify and hold harmless NEON and its affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (hereinafter individually a "Loss" and collectively "Losses"), incurred by NEON, its officers, directors, or affiliates, related to or arising out of any inaccuracy or breach of the representations, warranties, and covenants specified in clauses (i) and (ii) hereof. Such indemnity shall be limited to a maximum of $16.5 million for the Holding Shareholder and for the other Shareholders such indemnity shall be limited to a maximum of their portion of the Shareholder consideration set forth in Section 1.2. NEON's representations and warranties contained in this Agreement shall terminate at the Closing.

Survival of Representations and Warranties; Indemnity. The representations All representations, warranties and warranties covenants contained herein or made in writing by the Subscriber, or by or on behalf of the Shareholders Company in connection with the transactions contemplated by this Agreement or in any instrument delivered pursuant to this Subscription Agreement shall survive the Closing execution and shall terminate twelve (12) months after the Closing (the "Expiration Date"); provideddelivery of this Subscription Agreement, however, that (i) the representations and warranties and covenants relating any investigation at any time made by or pertaining to any Tax or Returns related to such Tax set forth in Section 2.10, Section 2.29(c) and Section 6.7 hereof, shall survive until the expiration of all applicable statutes of limitations, or extensions thereof, governing each Tax or Returns related to such Tax and (ii) the representations and warranties set forth in Section 2.3, Section 2.29(a) and Article III hereof shall survive the Closing and continue for a period of four (4) years after the Closing, except for Section 3.7, which shall survive until the last issuance of Incentive Stock pursuant to Section 1.2(b). The Shareholders shall, jointly and severally in the case on behalf of the Holding Shareholder Company or the Subscriber, and severally the issue and sale of Common Units. Unless the Company agrees otherwise in writing, the case of the other Shareholders, except as to the Escrow Amount, in which case liability Subscriber shall be joint and several as to all of the Shareholders, hereby does indemnify and hold harmless NEON the Company, the Adviser, the Administrator, their affiliates and its affiliates for their respective directors, officers, employees, representatives and agents (together, the “Indemnified Parties” and each, an “Indemnified Party”) from and against any claims, and all losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees liabilities and expensesother claims and damages (collectively, and expenses of investigation and defense (hereinafter individually a "Loss" and collectively "“Losses"), incurred by NEON, its officers, directors, or affiliates, related ”) relating to or arising out of any inaccuracy or breach of any representation, warranty or covenant made by the representations, warranties, and covenants specified in clauses (i) and (ii) hereof. Such indemnity shall be limited to a maximum of $16.5 million for the Holding Shareholder and for the other Shareholders such indemnity shall be limited to a maximum of their portion of the Shareholder consideration set forth in Section 1.2. NEON's representations and warranties contained Subscriber in this Agreement Subscription Agreement, except for Losses to the extent primarily attributable to such Indemnified Party’s own willful misfeasance, bad faith, gross negligence, or reckless disregard of such Indemnified Party’s duties. Unless the Subscriber agrees otherwise in writing, the Company shall terminate at and hereby does indemnify and hold harmless the ClosingSubscriber, its affiliates and its respective directors, officers, employees, representatives and agents (together, the “Subscriber Indemnified Parties” and each, a “Subscriber Indemnified Party”) from and against any and all Losses relating to or arising out of any breach of any representation, warranty or covenant made by the Company in this Subscription Agreement, except for Losses to the extent primarily attributable to such Subscriber Indemnified Party’s own willful misfeasance, bad faith, gross negligence, or reckless disregard of such Subscriber Indemnified Party’s duties.