Common use of Pro-rata Indemnification Clause in Contracts

Pro-rata Indemnification. From and after the Closing and subject to the limitations set forth herein, each Seller shall indemnify the Buyer Indemnified Persons for such Seller’s Applicable Total Percentage of all Losses resulting from: (i) any inaccuracy in or breach of (A) the representations and warranties made by the Company in Article V (other than the representations and warranties set forth in Section 5.12 (Taxes)), as if such representations and warranties were made as of the Closing Date, or (B) the certificate delivered by the Company pursuant to Section 9.01(d)(ii), in each case determined after giving effect to any Schedule Supplement with respect to (and only with respect to) matters arising after the date hereof; (ii) any breach of any covenant or agreement made by the Company in this Agreement that is to be performed prior to or at the Closing; (iii) any (A) inaccuracy in or breach of any representation or warranty made by the Company in Section 5.12 (Taxes), and (B) Pre-Closing Taxes, in each case other than to the extent resulting from a Buyer Tax Act; (iv) any Closing Date Indebtedness or Transaction Expenses (including any Transaction Bonuses or the employer’s portion of the Withholding Amount) not paid and satisfied in full at the Closing or taken into account in the calculation of the Final Adjusted Purchase Price; and (v) any Pollution existing on, under or about the facilities located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Dr., Ludington, Michigan; and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the “Properties”), on or before the Closing Date; provided, that the Sellers’ indemnity obligations under this Section 10.01(b)(v) shall not exceed $1,000,000.00; provided further, that Buyer Indemnified Persons shall not, unless and to the extent required by Environmental Law or any Governmental Authority, take any of the following actions solely for the purpose of making a claim pursuant to this Section 10.01(b)(v): (A) dig or otherwise perform any excavation of soils at the Properties; (B) undertake any investigation of subsurface conditions at the Properties or perform any remedial action of any kind unless required by applicable Environmental Laws or a Governmental Authority with proper jurisdiction over the matter and, if so required, Buyer shall inform the Sellers’ Representative in writing before any such investigation or remedial action is initiated; (C) importune or incite any Governmental Authority or other third party to require, request or undertake any such investigation or remedial action; and (D) commit to any third party or otherwise conform in any such remedial action to remedial standards materially more stringent than those least stringent applicable standards required under applicable Environmental Laws without the prior written consent of the Sellers’ Representative (unless required to do so by a Governmental Authority). Buyer Indemnified Persons shall forfeit, and shall not be eligible for, indemnification under this Section 10.01(b)(v) to the extent that they breach or in any way fail to comply with any of the foregoing covenants or if they fail to take or omit taking all commercially reasonable actions to mitigate any indemnifiable Losses upon and after becoming aware of events or circumstances that could reasonably be expected to give rise to any such Losses for which Buyer Indemnified Persons may be entitled to indemnification under this Agreement. In addition, and notwithstanding anything contained herein to the contrary, Buyer Indemnified Persons shall not be entitled to recovery under this Section 10.01(b)(v) with respect to any claim not brought hereunder on or before the sixth (6th) anniversary of the Closing Date.

Pro-rata Indemnification. From and after the Closing and subject Subject to the limitations set forth hereinin Section 9.5 hereof, each Seller shall indemnify of the Buyer Indemnified Persons for Stockholders, severally and not jointly, will indemnify, defend, and hold harmless OSI and Merger Sub (including, if the Merger is consummated, the Surviving Corporation), from and against such Seller’s Applicable Total Percentage Stockholder's Pro Rata Portion of any and all Losses resulting fromDamages related to or arising, directly or indirectly, out of or in connection with: (i) any inaccuracy in or breach of (A) the representations and warranties any representation, warranty, covenant, agreement, obligation, or undertaking made by any Stockholder or the Company in Article V (other than excluding the representations several representations, warranties, covenants, agreements, obligations, and warranties undertakings of the Stockholders set forth in Section 5.12 Sections 5, 7, and 8 hereof) in this Agreement (Taxes)including any schedule or exhibit hereto), as if such representations and warranties were made as or any other agreement, instrument, certificate, or other document delivered by or on behalf of any of them in connection with this Agreement, the Merger, or any of the Closing Date, or (B) the certificate delivered by the Company pursuant to Section 9.01(d)(ii), in each case determined after giving effect to any Schedule Supplement with respect to (and only with respect to) matters arising after the date hereofother transactions contemplated hereby; (ii) any breach of litigation, arbitration, action, suit, proceeding, or investigation (whether conducted by any covenant judicial or agreement made by the Company in this Agreement that is to be performed prior to regulatory body, arbitrator, or at the Closingother person) currently pending; (iii) any (A) inaccuracy liability of the Company for Taxes in or breach respect of any representation action, omission, transaction, business, or warranty made by the Company in Section 5.12 (Taxes), and (B) Pre-Closing Taxes, in each case other than to the extent resulting from a Buyer Tax Act; (iv) any Closing Date Indebtedness or Transaction Expenses (including any Transaction Bonuses or the employer’s portion of the Withholding Amount) not paid and satisfied in full at the Closing or taken into account in the calculation of the Final Adjusted Purchase Price; and (v) any Pollution existing on, under or about the facilities located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Dr., Ludington, Michigan; and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the “Properties”), period on or before the Closing Date; provided, that the Sellers’ indemnity obligations under this Section 10.01(b)(v) shall not exceed $1,000,000.00; provided further, that Buyer Indemnified Persons shall not, unless and to the extent required by Environmental Law or any Governmental Authority, take any of the following actions solely for the purpose of making a claim pursuant to this Section 10.01(b)(v): (A) dig or otherwise perform any excavation of soils at the Properties; (B) undertake any investigation of subsurface conditions at the Properties or perform any remedial action of any kind unless required by applicable Environmental Laws or a Governmental Authority with proper jurisdiction over the matter and, if so required, Buyer shall inform the Sellers’ Representative in writing before any such investigation or remedial action is initiated; (C) importune or incite any Governmental Authority or other third party to require, request or undertake any such investigation or remedial action; and (D) commit to any third party or otherwise conform in any such remedial action to remedial standards materially more stringent than those least stringent applicable standards required under applicable Environmental Laws without the prior written consent of the Sellers’ Representative (unless required to do so by a Governmental Authority). Buyer Indemnified Persons shall forfeit, and shall not be eligible for, indemnification under this Section 10.01(b)(v) to the extent that they breach or such liability exceeds any corresponding reserve therefor reflected in the Most Recent Balance Sheet; (iv) the Bank of Naples Dispute; (v) the OnTrack Dispute; (vi) any failure to qualify to do business as a foreign corporation in any way fail jurisdictions in which the natures of its properties and activities makes such qualification necessary; or (vii) the failure to comply with have any persons who have participated in the creation or development of the foregoing covenants Intellectual Properties owned or if they fail purported to take or omit taking be owned by the Company execute and deliver to the Company effective assignments to the Company of all commercially reasonable actions of their respective rights, titles, and interests in and to mitigate any such Intellectual Properties. For the avoidance of doubt, the matters referred to in the preceding clauses (ii) through (vii) are indemnifiable Losses upon regardless of whether disclosed and after becoming aware regardless of events or circumstances that could reasonably be expected to give rise to any such Losses for which Buyer Indemnified Persons may be entitled to indemnification under whether a breach of this Agreement. In addition, and notwithstanding anything contained herein to the contrary, Buyer Indemnified Persons shall not be entitled to recovery under this Section 10.01(b)(v) with respect to any claim not brought hereunder on or before the sixth (6th) anniversary of the Closing Date.