Common use of Indemnification of Parent Clause in Contracts

Indemnification of Parent. (a) The Company agrees that, after the Effective Time, Parent and the Surviving Corporation (each a “Buyer Indemnified Person”), but only to the extent of funds on deposit in the Indemnity Escrow and the amounts available under the Indemnity Policy, shall, to the extent provided in this Article VII be indemnified and held harmless from and against, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred or paid, including reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, court or arbitration costs and Taxes of or with respect to the Company or any Company Subsidiary (or of or with respect to any other member of the same consolidated group, or any of their respective predecessors) paid or payable after the Effective Time but specifically excluding consequential damages, lost profits, indirect damages, punitive damages, exemplary damages and any Taxes incurred as a result of any recovery received under this Article VII (any and all such amounts subject to indemnification hereunder, being hereinafter collectively referred to as “Damages”), to the extent such Damages arise out of or result from, in connection with, or by virtue of (i) any inaccuracy or misrepresentation in any of the representations or warranties given or made by the Company in this Agreement (other than Section 3.20 and Section 3.23), as qualified by the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation, or (ii) any breach by the Shareholder Representative of any covenant set forth in this Agreement, any Unpaid Company Transaction Expense to the extent it is not actually reflected in the Unpaid Company Transaction Expenses used to determine the Merger Consideration, or any inaccuracy or misrepresentation in the Company’s representation and warranty in Section 3.20 or Section 3.23, as qualified by the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation (collectively, “Company Breaches”); provided that Damages shall also include amounts awarded in a Third-Party Claim as consequential damages, lost profits, indirect damages, punitive damages or exemplary damages to any Person who is neither a Buyer Indemnified Person or Seller Indemnified Person (as the case may be) nor an Affiliate thereof. For the avoidance of doubt, no Buyer Indemnified Person will be entitled to be indemnified pursuant to this Section 7.1 for any Damages to the extent such amount is actually reflected in the Net Closing Indebtedness, Unpaid Company Transaction Expenses or Closing Working Capital used to determine the Merger Consideration. The Company will not be obligated to indemnify any Buyer Indemnified Person for any Damages relating to any inaccuracy, misrepresentation or breach of which Parent had actual knowledge on the date hereof, as and only to the extent that such knowledge is supported by the exchange of information during Parent’s due diligence investigation of the Company.

Indemnification of Parent. (a) The Company agrees that, From and after the Effective Time, Parent and the Surviving Corporation Closing (each a “Buyer Indemnified Person”), but only subject to the extent terms and conditions of funds on deposit in this Article 8), the Indemnity Escrow and the amounts available under the Indemnity Policy, Holders shall, to jointly and severally, in accordance with each Holder’s Indemnification Percentage, indemnify and hold the extent provided in this Article VII be indemnified and held Parent Indemnitees (as defined below) harmless from and against, and pay to the applicable Parent Indemnitees the amount of, any and all losses, liabilities, claims, demands, suits, actions, causes of actionsobligations, lossesdeficiencies, costsdemands, awards, judgments, damages, liabilities interest, fines, penalties, costs and out-of-pocket expenses incurred or paid, (including reasonable attorneys’ fees, costs of investigation or settlement, and defense and attorneys’ and other professionals’ fees and experts’ feesexpenses) whether or not involving a Third Party Claim (hereinafter individually a “Loss” and collectively “Losses”) suffered or incurred by Parent, court or arbitration costs and Taxes of or with respect to the Company or any Company Subsidiary (or of or with respect to any other member of the same consolidated group, its Affiliates or any of their respective predecessorsofficers, directors, managers, employees, stockholders, members, partners, agents, representatives or successors and assigns (the “Parent Indemnitees”) paid or payable after the Effective Time but specifically excluding consequential damages, lost profits, indirect damages, punitive damages, exemplary damages and any Taxes incurred as a result of any recovery received under this Article VII (any and all such amounts subject to indemnification hereunder, being hereinafter collectively referred to as “Damages”), to the extent such Damages arise out of or result from, in connection withattributable to, or by virtue of arising or resulting from (i) any inaccuracy breach of any representation or misrepresentation in any warranty of the representations or warranties given or made by the Company contained in Article 3 of this Agreement (other than Section 3.20 and Section 3.23)Agreement, as qualified by the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation, or (ii) any breach by the Shareholder Representative of any covenant set forth of the Company contained in this Agreement, (iii) any Unpaid Company Transaction Expense to the extent it is not actually reflected proceeding in the Unpaid Company Transaction Expenses used to determine the Merger Consideration, or respect of any inaccuracy or misrepresentation in the Company’s representation Dissenting Shares and warranty in Section 3.20 or Section 3.23, as qualified by the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation (collectively, “Company Breaches”); provided that Damages shall also include amounts awarded in a Third-Party Claim as consequential damages, lost profits, indirect damages, punitive damages or exemplary damages payments to any Person who is neither that was a Buyer Indemnified Person or Seller Indemnified Person (as the case may be) nor an Affiliate thereof. For the avoidance holder of doubt, no Buyer Indemnified Person will be entitled to be indemnified pursuant to this Section 7.1 for any Damages Company Capital Stock immediately prior to the extent Effective Time in respect of such amount is actually reflected in the Net Closing IndebtednessPerson’s Dissenting Shares, Unpaid Company Transaction Expenses or Closing Working Capital used to determine the Merger Consideration. The Company will not be obligated to indemnify any Buyer Indemnified Person for any Damages relating to any inaccuracy, misrepresentation or breach of which Parent had actual knowledge on the date hereof, as and only to the extent that such knowledge is supported payments exceed the portion of the Final Aggregate Merger Consideration to which such Person would have been entitled pursuant to this Agreement in respect of such Dissenting Shares if such Person had not exercised appraisal or dissenting rights in respect thereof, (iv) any Holder Transaction Expenses or Indebtedness that were not taken into account in the determination of the Final Aggregate Merger Consideration; (v) any amounts that are required to be repaid under any Government Grant set forth on the Government Grants Schedule received by the exchange of information during Parent’s due diligence investigation Company prior to the Closing to the extent arising from any action or omission by the Company prior to the Closing; (vi) any claim by any individual set forth on Schedule 5.10 alleging that such individual owns any of the CompanyIntellectual Property of the Company to the extent such claim could not have been successfully asserted had such individual signed an Invention Assignment Agreement in the form attached hereto as Exhibit F on or prior to the Closing; (vii) if the Company has elected to fund the Additional Escrow, any amounts that are required to be repaid under any Government Grant set forth on the Government Grants Schedule received by the Company prior to the Closing to the extent arising from the termination of such a Government Grant as a result of the failure to obtain a consent set forth on Schedule 2.02(e)(viii) and (viii) the indemnification matters set forth on Schedule 8.02(a)(viii).

Indemnification of Parent. (a) The Company agrees that, From and after the Effective TimeTime and subject to the limitations contained in this Article XI, Parent the Former Company Stockholders will indemnify, on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, employees and Affiliates (each a collectively, the “Buyer Parent Indemnified PersonParties”)) and hold the Parent Indemnified Parties harmless against any loss, but only expense, liability or other damage, including court costs and attorneys’ fees, to the extent of funds on deposit the actual amount of such loss, expense, liability or other damage (without regard to the use of any multiplier) (collectively “Damages”) that the Parent Indemnified Parties have incurred by reason of (i) the inaccuracy or breach by the Company of any representation or warranty of the Company contained in this Agreement or in the Indemnity Escrow certificate delivered pursuant to Section 9.2(a) or 9.2(b) of this Agreement (in each case, as such representation or warranty would read if all qualifications as to materiality, including each reference to the defined term “Company Material Adverse Effect,” were deleted therefrom), and (ii) any of the amounts available under matters set forth on Schedule 4.16 of the Indemnity PolicyCompany Disclosure Schedules. All such calculations of Damages shall take into account any offset benefits or insurance proceeds received in connection with the matter out of which such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, shallcredit or actual reduction in Taxes realized by the Parent Indemnified Parties as a result of such Damages (including any such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages to the extent provided set forth in this Article VII be indemnified Section 2 of the letter dated as of the date hereof, between the Company and held harmless from and against, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred or paid, including reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, court or arbitration costs and Taxes of or with respect Parent (Re: Indemnification Matters) (the “Indemnification Matters Letter”). Notwithstanding anything herein to the Company or any Company Subsidiary contrary, (or of or a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any other member Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the same consolidated group, or any of their respective predecessors) paid or payable after the Effective Time but specifically excluding consequential damages, lost profits, indirect damages, punitive damages, exemplary damages and any Taxes incurred Parent Indemnified Parties as a result of any recovery received under this Article VII (any such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and all such amounts subject then the Parent Indemnified Parties shall be entitled to indemnification hereunderonly for such aggregate amount that exceeds the Deductible; provided, being hereinafter collectively referred that the Deductible shall not apply to as “Damages”), Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) a breach of a representation or warranty shall not be deemed to have occurred and the extent such Parent Indemnified Parties shall not be deemed to have incurred any Damages arise out of or result from, in connection with, or by virtue of under clauses (i) any inaccuracy or misrepresentation in any of the representations or warranties given or made by the Company in this Agreement (other than Section 3.20 and Section 3.23), as qualified by the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation, or (ii) above unless any Damages arising from such breach by the Shareholder Representative of any covenant or matter set forth in this Agreementon Schedule 4.16 of the Company Disclosure Schedules, any Unpaid Company Transaction Expense to the extent it is not actually reflected in the Unpaid Company Transaction Expenses used to determine the Merger Consideration, or any inaccuracy or misrepresentation in the Company’s representation and warranty in Section 3.20 or Section 3.23, as qualified by the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation (collectively, “Company Breaches”); provided that Damages shall also include amounts awarded in a Third-Party Claim as consequential damages, lost profits, indirect damages, punitive damages or exemplary damages to any Person who is neither a Buyer Indemnified Person or Seller Indemnified Person (as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) nor an Affiliate thereof. For $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the avoidance matters set forth in Section 1 of doubt, no Buyer the Indemnification Matters Letter; (c) the aggregate amount of all payments to which the Parent Indemnified Person will Parties shall be entitled to be indemnified receive in satisfaction of claims for indemnification pursuant to this Section 7.1 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for any Damages to the extent that the items giving rise to such Damages had been accounted for in any of the adjustments to the Merger Consideration pursuant to Sections 3.3(f), (g) and (h); (e) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount is actually reflected of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the Net Closing Indebtednessaggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, Unpaid Company Transaction Expenses or Closing Working Capital used and, then the Parent Indemnified Parties shall be entitled to determine indemnification only for such aggregate amount that exceeds the Merger Consideration. The Company will sum of the Schedule 4.16 Matters Deductible and the Deductible; and (f) the Parent Indemnified Parties shall not be obligated deemed to indemnify have incurred any Buyer Indemnified Person Damages under clauses (i) or (ii) above with respect to any of the matters set forth on Schedule 11.1 attached hereto. In no event shall the Former Company Stockholders be liable for any Damages relating to any inaccuracypunitive, misrepresentation special or breach of which Parent had actual knowledge on the date hereof, as and only exemplary damages except to the extent that such knowledge is supported actually payable by the exchange of information during Parent’s due diligence investigation of the Companya Parent Indemnified Party to a third party.

Indemnification of Parent. (a) The Company agrees that, after the Effective Time, Parent and the Surviving Corporation and their respective officers, directors, agents and representatives (each hereinafter referred to individually as a “Buyer "Parent Indemnified Person”" and collectively as "Parent Indemnified Persons"), but only to the extent of funds on deposit in the Indemnity Escrow and the amounts available under the Indemnity Policy, shall, to the extent provided in this Article VII shall be indemnified and held harmless from and against, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred or paid, including reasonable attorneys’ ' fees, costs of investigation or settlement, other professionals’ ' and experts’ ' fees, and court or arbitration costs and Taxes of or with respect to the Company or any Company Subsidiary (or of or with respect to any other member of the same consolidated group, or any of their respective predecessors) paid or payable after the Effective Time but specifically excluding consequential damages, lost profits, indirect damages, punitive damages, exemplary damages and any Taxes incurred exemplary damages; provided, that the foregoing exclusion shall not apply to (i) amounts paid to third parties in respect of an indemnifiable claim hereunder or (ii) damages measured based on the difference in value of the Company as represented in this Agreement and the actual value of the Company as a result of any recovery received under this Article VII Company Breaches (any and all such amounts subject to indemnification hereunder, being as hereinafter defined) (hereinafter collectively referred to as “"Damages”") (but only to the extent provided in Section 9.1(c)), to the extent such Damages arise are determined by a Final Award, a final order of a court of competent jurisdiction or agreement of Parent and the Stockholder Representative to have arisen out of or result to have resulted from, in connection with, or by virtue of (i) any inaccuracy facts or misrepresentation in circumstances which constitute an inaccuracy, misrepresentation, breach of, default in, or failure to perform, any of the representations representations, warranties or warranties covenants given or made by the Company in this Agreement (other than or in the certificate delivered pursuant to Section 3.20 and Section 3.238.2(c)(i), as qualified by the Schedules hereto, or hereto as updated from time to time in accordance with the facts or circumstances constituting any such inaccuracy or misrepresentation, or (ii) any breach by the Shareholder Representative terms of any covenant set forth in this Agreement, or any Unpaid Company Transaction Expense to the extent it is not actually reflected in the Unpaid Company Transaction Expenses used to determine the final Merger Consideration, or any inaccuracy or misrepresentation in the Company’s representation and warranty in Section 3.20 or Section 3.23, as qualified by the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation Consideration (collectively, “"Company Breaches”"); provided that Damages shall also include amounts awarded if any representation or warranty is qualified in a Third-Party Claim as consequential damagesany respect by materiality or reference to Company Material Adverse Effect, lost profits, indirect damages, punitive damages for purposes of this paragraph such materiality or exemplary damages to any Person who is neither a Buyer Indemnified Person or Seller Indemnified Person (as the case may be) nor an Affiliate thereofCompany Material Adverse Effect qualification will in all respects be ignored. For the avoidance of doubt, no Buyer Parent Indemnified Person will be entitled to be indemnified pursuant to this Section 7.1 9.1 for any Damages liability to the extent (but only to the extent) the Stockholder Representative can demonstrate that the amount of such amount liability is actually reflected in the Net Closing Indebtedness, Unpaid Company Transaction Expenses or Closing Working Capital used to determine the final Merger Consideration. The Company will not be obligated Consideration or is provided for pursuant to indemnify any Buyer Indemnified Person for any Damages relating to any inaccuracy, misrepresentation or breach of which Parent had actual knowledge on the date hereof, as and only to the extent that such knowledge is supported by the exchange of information during Parent’s due diligence investigation of the CompanySection 7.12.

Indemnification of Parent. (a) The Company agrees that, From and after the Effective TimeTime and subject to the limitations contained in this Article XI, Parent the Former Company Stockholders will indemnify, on a several (and not joint) basis, Parent, Merger Sub, the Surviving Corporation and their respective officers, directors, employees and Affiliates (each a collectively, the “Buyer Parent Indemnified PersonParties”)) and hold the Parent Indemnified Parties harmless against any loss, but only expense, liability or other damage, including court costs and attorneys’ fees, to the extent of funds on deposit in the Indemnity Escrow and the amounts available under the Indemnity Policyactual amount of such loss, shallexpense, liability or other damage (without regard to the extent provided in this Article VII be indemnified and held harmless from and against, any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and out-of-pocket expenses incurred or paid, including reasonable attorneys’ fees, costs of investigation or settlement, other professionals’ and experts’ fees, court or arbitration costs and Taxes of or with respect to the Company or any Company Subsidiary (or of or with respect to any other member of the same consolidated group, or any of their respective predecessors) paid or payable after the Effective Time but specifically excluding consequential damages, lost profits, indirect damages, punitive damages, exemplary damages and any Taxes incurred as a result use of any recovery received under this Article VII multiplier) (any and all such amounts subject to indemnification hereunder, being hereinafter collectively referred to as “Damages”), to ) that the extent such Damages arise out of or result from, in connection with, or Parent Indemnified Parties have incurred by virtue reason of (i) any the inaccuracy or misrepresentation in any of the representations or warranties given or made breach by the Company of any representation or warranty of the Company contained in Article IV of this Agreement or in the certificate delivered pursuant to Section 9.2(b) of this Agreement (other than Section 3.20 and Section 3.23)in each case, as qualified by such representation or warranty would read if all qualifications as to materiality, including each reference to the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentationdefined term “Company Material Adverse Effect,” were deleted therefrom), or (ii) any breach of the matters set forth on Schedule 4.16 of the Company Disclosure Schedules. All such calculations of Damages shall take into account any offset benefits or insurance proceeds received in connection with the matter out of which such Damages shall arise net of any premium increases directly resulting therefrom and shall take into account any refund, credit or actual reduction in Taxes realized by the Shareholder Representative Parent Indemnified Parties as a result of such Damages (including any covenant such Tax benefit realized in the taxable period in which such Damages were incurred or a taxable period beginning after the tax period in which such Damages were incurred); provided, that any benefit referred to above that occurs after the Parent Indemnified Parties have recovered Damages in accordance with this Article XI shall be promptly paid to the Former Company Stockholders’ Agent. Each of Parent and Merger Sub shall be deemed to have waived, on behalf of all Parent Indemnified Parties, any claim for Damages arising under clause (i) above if, prior to the Closing, it had actual knowledge and understanding of that misrepresentation or breach (including potential consequences thereof). Notwithstanding anything herein to the contrary, (a) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (i) above unless and until the aggregate amount of all Damages suffered by the Parent Indemnified Parties as a result of such breach(es) exceeds in the aggregate the amount set forth as the Deductible in Section 11.4 and then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the Deductible; provided, that the Deductible shall not apply to Damages incurred by reason of the matters set forth in this Agreementthe letter dated as of the date hereof, any Unpaid between the Company Transaction Expense to and Parent (Re: Indemnification Matters) (the extent it is not actually reflected in the Unpaid Company Transaction Expenses used to determine the Merger Consideration, or any inaccuracy or misrepresentation in the Company’s representation and warranty in Section 3.20 or Section 3.23, as qualified by the Schedules hereto, or the facts or circumstances constituting any such inaccuracy or misrepresentation (collectively, “Company BreachesIndemnification Matters Letter”); provided that (b) a breach of a representation or warranty shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages shall also include amounts awarded in a Third-Party Claim as consequential damagesunder clauses (i) or (ii) above unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, lost profits, indirect damages, punitive damages or exemplary damages to any Person who is neither a Buyer Indemnified Person or Seller Indemnified Person (as the case may be, exceeds (together with all other claims so substantially related as to effectively constitute one claim) nor an Affiliate thereof. For $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of the avoidance matters set forth in the Indemnification Matters Letter; (c) the aggregate amount of doubt, no Buyer all payments to which the Parent Indemnified Person will Parties shall be entitled to be indemnified receive in satisfaction of claims for indemnification pursuant to this Section 7.1 11.1 or Section 8.6 shall in no event exceed the amount set forth in Section 11.4 as the Cap; (d) the Parent Indemnified Parties shall not be entitled to seek indemnification for any Damages to the extent that the items giving rise to such Damages had been accounted for in any of the adjustments to the Merger Consideration pursuant to Sections 3.3(f), (g) and (h); and (e) the Parent Indemnified Parties shall not be entitled to seek indemnification with respect to any Damages arising under clause (ii) above unless and until (A) the aggregate amount is actually reflected of all Damages suffered by the Parent Indemnified Parties under clause (ii) above exceeds in the Net Closing Indebtednessaggregate the amount set forth as the Schedule 4.16 Matters Deductible in Section 11.4 and (B) the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) above exceeds in the aggregate the sum of the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in Section 11.4, Unpaid and, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible. In no event shall the Former Company Transaction Expenses or Closing Working Capital used to determine the Merger Consideration. The Company will not Stockholders be obligated to indemnify any Buyer Indemnified Person liable for any Damages relating to any inaccuracypunitive, misrepresentation special or breach of which Parent had actual knowledge on the date hereof, as and only exemplary damages except to the extent that such knowledge is supported actually payable by the exchange of information during Parent’s due diligence investigation of the Companya Parent Indemnified Party to a third party.