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 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 Unless otherwise noted herein, all representations and warranties hereunder shall survive for a period equal to twelve (12) months after execution of this Subscription Agreement and delivery of the Shareholders Common Shares. All covenants and agreements shall survive until performed. The Company shall indemnify, defend and hold harmless the Investor and each of its agents, partners, members, officers, directors, representatives, or affiliates (collectively, the “Investor Indemnitees”) against any and all losses, liabilities, claims and expenses, including reasonable attorneys’ fees (“Losses”), sustained by Investor Indemnities resulting from, arising out of, or connected with any material inaccuracy in, material breach of, or nonfulfillment in any material way of any representation, warranty, covenant or agreement made by or other obligation of the Company contained in this Agreement or in any instrument document delivered pursuant to this Agreement in connection herewith; provided that the amount of such Losses indemnified hereunder shall survive not exceed 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)Purchase Price. The Shareholders shallInvestor shall indemnify, 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 defend and hold harmless NEON the Company and each of its affiliates for any claimsagents, lossespartners, liabilitiesmembers, 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, representatives, or affiliatesaffiliates (collectively, related to or the “Company Indemnitees”) against any and all Losses, sustained by the Company Indemnities resulting from, arising out of, or connected with any material inaccuracy in, material breach of, or nonfulfillment in any material way of any inaccuracy representation, warranty, covenant or breach agreement made by or other obligation 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 Investor contained in this Agreement shall terminate at or in any document delivered in connection herewith. Except as otherwise required by law, the Closingparties hereto agree to treat any indemnification payments made pursuant to this Section 14 as an adjustment to the purchase price for income tax purposes.

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.