Parent and Surviving Corporation Claims. From and after the Effective Time, the Participating Stockholders shall, severally, but not jointly, in proportion to their respective Percentage Shares, defend, indemnify and hold harmless the Surviving Corporation and Parent from and against any and all losses, damages, Liabilities, claims, demands, judgments, settlements, costs and expenses of any nature whatsoever (including reasonable attorneys’ fees) (collectively, “Loss”), resulting from or arising out of any: (i) breach of any representation, warranty, covenant or agreement of the Company contained herein; (ii) Liability of the Company, that was neither addressed by a representation or warranty nor disclosed on a Schedule attached hereto, which was created, incurred or arose from facts, events, conditions or circumstances existing on or before the Closing Date, to the extent that, but only to the extent that, such Liability was required (by GAAP as consistently applied) to be but was not reflected or reserved against on the face of the Final Balance Sheet, as adjusted for Liabilities incurred in the Ordinary Course of Business of the Company since the date of the Final Balance Sheet; (iii) amounts due to Parent with respect to the Working Capital Adjustment; and (iv) the Schedule 8.1(iv) Liability described in Schedule 8.1(iv) (the “Schedule 8.1(iv) Liability”). No claim for indemnification pursuant to this Section 8.1 or Section 8.3 may be made subsequent to the date 18 months after the Closing Date or in respect of a Loss for which Parent or the Surviving Corporation has otherwise been previously reimbursed by the Participating Stockholders; provided, however, that the expiration period hereunder that will apply to breaches of Surviving Obligations (as defined infra) and other Excepted Claims (as defined infra) shall be the period ending on the final date of the statute of limitations period pertaining thereto under applicable Law (as such statute of limitations period may be extended by waiver or otherwise, with the consent of the Stockholder Committee, which consent shall not be unreasonably withheld or delayed).
Parent and Surviving Corporation Claims. From and after the Effective Time, each Participating Stockholder shall, severally, but not jointly, and, with respect to clauses (i) and (iv) infra, in proportion to his or its respective Percentage Share, defend, indemnify and hold harmless the Surviving Corporation and Parent from and against any and all losses, damages, liabilities, claims, demands, judgments, settlements, costs and expenses of any nature whatsoever (including reasonable attorneys’ fees) (collectively, “Loss”), resulting from or arising out of any: (i) breach of any representation or warranty of the Company contained in Article II; (ii) breach by and only by such Participating Stockholder of any representation or warranty of such Participating Stockholder contained in Section 2A.1; (iii) breach by and only by such Participating Stockholder of any of his or its obligations pursuant to Sections 6.8 and 6.9; and (iv) failure of the stockholder information materials in the form delivered in writing to Parent on the date hereof (in the form so delivered, the "Materials") to comply with the applicable provisions of the DGCL, including, without limitation, Sections 228(e) and 262(d)(2) thereof; provided, however, that no Participating Stockholder shall have any liability pursuant to this clause (iv) unless and only if (A) the Company properly and timely mails, in compliance with the applicable provisions of the DGCL, the Materials, in the form delivered on the date hereof (subject to the Company’s obligation prior to such mailing to attach thereto as part of Annex C thereof the financial statements of the Company for its 2004 and 2005 fiscal years, as audited by PricewaterhouseCoopers (“PWC”), or, if such audited financial statements for the Company’s 2005 fiscal year are not delivered by PWC to the Company prior to the mailing of the Materials, the Company’s financial statements for its 2004 fiscal year, as audited by PWC, and the Company’s unaudited financial statements for its 2005 fiscal year, as prepared by the Company’s management most recently prior to the Closing), to all of the holders of record of Common Stock at the respective addresses reflected in the Company's stock record books on the date hereof, (B) such Loss results solely from the demand of appraisal rights or quasi-appraisal rights by any such holder after the 20-day period referenced in Section 262(d)(2) of the DGCL, (C) the demand by such holder was permitted, notwithstanding the passage of such 20-day period, solely as ...
