Common use of Agreement by Seller to Indemnify Clause in Contracts

Agreement by Seller to Indemnify. Seller hereby agrees to indemnify and hold Buyer and each of its officers, directors, employees, Affiliates, successors and assigns (collectively, for the purpose of this Article VIII, “Buyer”) harmless from and against the aggregate of all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel and paralegal fees and expenses) incurred or suffered by Buyer arising out of or resulting from (i) any breach of a representation, warranty or certification made by Seller in this Agreement or in any other written document or certificate delivered pursuant to this Agreement, (ii) any breach of the covenants or agreements made by Seller in this Agreement or in any other written document or certificate to this Agreement, (iii) any Excluded Liabilities (collectively, “Indemnifiable Damages”). Without limiting the generality of the foregoing, Indemnifiable Damages shall be measured on a pre-Tax basis, and with respect to the measurement of Indemnifiable Damages, (i) Buyer shall have the right to be put in the same pre-Tax consolidated financial position considering the pre-Tax effects of any Indemnifiable Damages and (ii) the indemnity payment with respect to any Indemnifiable Damages shall be calculated after taking into account all reductions in federal, state, local and foreign Taxes (including estimated Taxes) realized by the indemnified party as a result of the event giving rise to such Indemnifiable Damages. Buyer shall, and shall cause its Affiliates to, realize all such reductions in federal, state, local and foreign Taxes reasonably available, including through the filing of amended Tax Returns. Notwithstanding the foregoing, no claim for Indemnifiable Damages (except for claims for breaches of covenants, which may be asserted without regard to the Indemnification Threshold) shall be asserted by Buyer until the aggregate of all Indemnifiable Damages exceeds the sum of Five Thousand Dollars ($5,000) (the “Indemnification Threshold”), in which case Buyer shall be entitled to collect all Indemnifiable Damages from the first dollar thereof, without regard to the Indemnification Threshold. Further, Buyer shall have no right to collect Indemnifiable Damages in excess of the Purchase Price.

Agreement by Seller to Indemnify. Seller hereby agrees Zila and Seller, jointly and severally, agree to indemnify and hold harmless Buyer and each of its officers, directors, employees, Affiliatesshareholders, successors and assigns (collectively, for the purpose "Seller Indemnified Parties") in respect of the aggregate of all indemnifiable damages caused to the Acquired Business or any of the Seller Indemnified Parties. The parties agree that the indemnification provisions set forth in this Article VIII11 are the sole remedy for any claims of the Seller Indemnified Parties relating to the Acquired Business or Purchased Assets and this Agreement; provided, “Buyer”) harmless however, nothing in this Section 11 shall preclude Buyer from and against seeking damages that arise from fraud. 11.1.1. For this purpose, "indemnifiable damages" caused to the Acquired Business or any of the Seller Indemnified Parties means the aggregate of all expenses, losses, penalties, costs, deficiencies, liabilities and damages (including related reasonable and necessary counsel and paralegal fees and expenses) incurred or suffered by Buyer arising out the Acquired Business or any of the Seller Indemnified Parties (in each case net of any insurance or other third-party recoveries) resulting from (i) any from: A. The breach of a representation, any representation or warranty or certification made by Zila and Seller in this Agreement or in any other written document or certificate delivered pursuant to Section 4 of this Agreement, (ii) ; B. The breach of any breach of the covenants or agreements made by Zila or Seller in this Agreement or in any other written document or certificate to this Agreement, including the ancillary documents to be executed and/or delivered by Zila or Seller; C. The failure of Seller to pay, discharge or perform any liability or obligation of Seller which is not an Assumed Liability; D. Any actions, claims, proceedings, demands, grievances or disputes brought or initiated by third parties against the Acquired Business or any of the Seller Indemnified Parties in connection with an Excluded Liability; E. The conduct of the Acquired Business by Seller through and including the Closing Date; F. Any actions, claims, proceedings, demands, grievances or disputes brought or initiated by third parties against the Acquired Business or any of the Seller Indemnified Parties in connection with any Plan (iiias defined in Section 4.17.1) or any Excluded Seller Employee Liabilities (collectivelyas defined in Section 4.16.1.C); G. The total cost of any inventory that is a Purchased Asset and that is determined to be Heat Sensitive Inventory on or after the date hereof, “Indemnifiable Damages”including any additional costs for handling and reshipping replacement products to customers. "Heat Sensitive Inventory" means any Xxxxxxx Kodak Company anesthesia, that is a Purchased Asset, which is determined to be unusable as a result of exposure to excessive heat (this determination shall be made pursuant to a written evaluation from Xxxxxxx Kodak Company, or another qualified lab as may be reasonably approved by the Buyer). Without limiting the generality of the foregoing, Indemnifiable Damages shall be measured on a pre-Tax basis, and with respect to the measurement of Indemnifiable Damages, (i) The Buyer shall have the right to be put have all of the Heat Sensitive Inventory evaluated in the same pre-Tax consolidated financial position considering event that the pre-Tax effects of any Indemnifiable Damages and (ii) Buyer determines in good faith that such products are being returned at an unusually high rate relative to the indemnity payment with respect to any Indemnifiable Damages shall be calculated after taking into account all reductions in federal, state, local and foreign Taxes (including estimated Taxes) realized by the indemnified party as a result normal historic return rate of the event giving rise to such Indemnifiable Damages. Buyer shall, and shall cause its Affiliates to, realize all such reductions in federal, state, local and foreign Taxes reasonably available, including through the filing of amended Tax Returns. Notwithstanding the foregoing, no claim for Indemnifiable Damages (except for claims for breaches of covenants, which may be asserted without regard to the Indemnification Threshold) shall be asserted by Buyer until the aggregate of all Indemnifiable Damages exceeds the sum of Five Thousand Dollars ($5,000) (the “Indemnification Threshold”), in which case Buyer shall be entitled to collect all Indemnifiable Damages from the first dollar thereof, without regard to the Indemnification Threshold. Further, Buyer shall have no right to collect Indemnifiable Damages in excess of the Purchase Price.Acquired Business;

Agreement by Seller to Indemnify. Seller hereby Each of the Sellers agrees to that he shall indemnify and hold Buyer and each of its officers, directors, employees, Affiliates, successors and assigns the Purchaser harmless with respect to any Indemnifiable Damages incurred by the Purchaser to the extent that such Indemnifiable Damages result from: (collectively, for the purpose of this Article VIII, “Buyer”) harmless from and against the aggregate of all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel and paralegal fees and expenses) incurred or suffered by Buyer arising out of or resulting from (ia) any breach of a representation, representation or warranty or certification made by of such Seller in this Agreement or in any other written document or certificate delivered pursuant to this Agreement, provided, however, that no such claim for indemnification as a result of matters specified in this clause (iia) may be initiated by or on behalf of any party hereto after the date which is fifteen (15) months after the Closing Date; or (b) result from any breach of the covenants or agreements of such Seller under this Agreement. 11.2.1. Each of the representations and warranties made by each Seller in this Agreement or in any other written document pursuant hereto are made as of the Closing Date by such Seller individually and only to the best of his knowledge. 11.2.2. The obligations of the Sellers, individually or certificate as a group, pursuant to this Section 11.2 shall be subject to the following limitations: 11.2.2.1. The Sellers shall not have any obligation to indemnify the Purchaser from and against any Indemnifiable Damages pursuant to this Section 11.2: (i) until such time as the Purchaser has suffered Indemnifiable Damages by reason of all such claims in an aggregate amount in excess of One Hundred Thousand Dollars ($100,000.00) (after which point the Sellers will be obligated only to indemnify the Purchaser from and against further such Indemnifiable Damages); or (ii) which are incurred by Purchaser (or any of the Companies following Closing) as a consequence of any event or circumstance which arises (A) pursuant to or based upon the Schlotzsky's Franchise Agreement, or (B) due to the inability of the Sellers or the Companies (or any one of them) to obtain the Schlotzsky's Consent. 11.2.2.2. The Sellers' aggregate obligations under this Article XI shall be limited to an amount (the "SELLER INDEMNIFIABLE AMOUNT") not to exceed one hundred percent (100.0%) of: (i) the Purchase Price, plus (ii) any Adjustment Amount actually paid to the Sellers by the Purchaser, minus (iii) any Excluded Liabilities (collectively, “Indemnifiable Damages”)the amount of all Scheduled Debt. 11.2.2.3. Without limiting the generality of the foregoing, The Purchaser shall not be entitled to recover Indemnifiable Damages shall be measured on a pre-Tax basis, and with respect to the measurement of Indemnifiable Damages, (i) Buyer shall have the right to be put in the same pre-Tax consolidated financial position considering the pre-Tax effects of from any Indemnifiable Damages and (ii) the indemnity payment individual Seller with respect to any Indemnifiable Damages shall be calculated after taking into account all reductions in federal, state, local and foreign Taxes (including estimated Taxes) realized by the indemnified party as a result of the event giving rise to such Indemnifiable Damages. Buyer shall, and shall cause its Affiliates to, realize all such reductions in federal, state, local and foreign Taxes reasonably available, including through the filing of amended Tax Returns. Notwithstanding the foregoing, no claim for Indemnifiable Damages (except for claims for breaches of covenants, which may be asserted without regard to the Indemnification Threshold) shall be asserted by Buyer until the aggregate of all Indemnifiable Damages exceeds the sum of Five Thousand Dollars ($5,000) (the “Indemnification Threshold”), in which case Buyer shall be entitled to collect all Indemnifiable Damages from the first dollar thereof, without regard to the Indemnification Threshold. Further, Buyer shall have no right to collect Indemnifiable Damages indemnification hereunder in excess of the Purchase Priceamount of Indemnifiable Damages arising from such claim multiplied by such Seller's Participating Percentage.

Agreement by Seller to Indemnify. Seller hereby agrees Zila and Seller, jointly and severally, agree to indemnify and hold harmless Buyer and InfoCure and each of its their respective officers, directors, employees, Affiliatesshareholders, successors and assigns (collectively, for the purpose "Seller Indemnified Parties") in respect of the aggregate of all indemnifiable damages caused to the Acquired Business or any of the Seller Indemnified Parties. The parties agree that the indemnification provisions set forth in this Article VIII11. are the sole remedy for any claims of the Seller Indemnified Parties relating to the Acquired Business or Purchased Assets and this Agreement; provided, “Buyer”) harmless however, nothing in this Section 11. Shall preclude Buyer or InfoCure from and against seeking damages that arise from fraud. For this purpose, "indemnifiable damages" caused to the Acquired Business or any of the Seller Indemnified Parties means the aggregate of all expenses, losses, penalties, costs, deficiencies, liabilities and damages (including related counsel and paralegal fees and expenses) incurred or suffered by Buyer arising out the Acquired Business or any of or the Seller Indemnified Parties resulting from (i) any from: A. The breach of a representation, any warranty or certification made by Seller in this Agreement or in any other written document or certificate delivered pursuant to this Agreement, (ii) ; B. The breach of any breach of the covenants or agreements made by Seller in this Agreement; C. The failure of Seller to pay, discharge or perform any liability or obligation of Seller which is not an Assumed Liability; D. Any actions, claims, proceedings, demands, grievances or disputes brought or initiated by third parties against the Acquired Business or any of the Seller Indemnified Parties in connection with an Excluded Liability; E. The conduct of the Acquired Business by Seller through and including the Closing Date; or F. Any actions, claims, proceedings, demands, grievances or dispute brought or initiated by third parties against the Acquired Business or any of the Seller Indemnified Parties in connection with any Plan (as defined in Section 4.17.1.) or any Seller Employee Liabilities (as defined in Section 4.16.1.B.). The foregoing obligation of Zila and Seller to indemnify the Seller Indemnified Parties shall be subject to each of the following principles or qualifications: 11.1.1. Each of the representations and warranties made by Zila and Seller in this Agreement or in pursuant hereto, shall survive for a period of two (2) years after the Closing Date, notwithstanding any other written document investigation at any time made by or certificate to this Agreementon behalf of Buyer or InfoCure, (iii) any Excluded Liabilities (collectively, “Indemnifiable Damages”). Without limiting the generality of the foregoing, Indemnifiable Damages and thereafter all such representations and warranties shall be measured on a pre-Tax basisextinguished; provided, and with respect to the measurement of Indemnifiable Damageshowever, (i) Buyer shall have the right to be put in the same pre-Tax consolidated financial position considering the pre-Tax effects of any Indemnifiable Damages and (ii) the indemnity payment with respect to any Indemnifiable Damages shall be calculated after taking into account all reductions in federal, state, local and foreign Taxes (including estimated Taxes) realized by the indemnified party as a result of the event giving rise to such Indemnifiable Damages. Buyer shall, and shall cause its Affiliates to, realize all such reductions in federal, state, local and foreign Taxes reasonably available, including through the filing of amended Tax Returns. Notwithstanding the foregoing, no claim for Indemnifiable Damages (except for claims for breaches of covenants, which may be asserted without regard to the Indemnification Threshold) shall be asserted by Buyer until the aggregate of all Indemnifiable Damages exceeds the sum of Five Thousand Dollars ($5,000) (the “Indemnification Threshold”), in which case Buyer shall be entitled to collect all Indemnifiable Damages from the first dollar thereof, without regard to the Indemnification Threshold. Further, Buyer shall have no right to collect Indemnifiable Damages in excess of the Purchase Price.that

Agreement by Seller to Indemnify. Seller hereby agrees to indemnify and hold Buyer, Buyer Assignee and each of its their respective officers, directors, employees, Affiliates, successors attorneys and assigns Affiliates (collectively, for each a "Buyer Indemnified Party" and together the purpose of this Article VIII, “Buyer”"Buyer Indemnified Parties") harmless from and against the aggregate of all expenses, losses, costs, deficiencies, liabilities Liabilities and damages (including related reasonable counsel and paralegal fees and expensesexpenses related thereto) incurred or suffered by any of Buyer Indemnified Parties arising out of or resulting from (i) any breach Breach of a representation, representation or warranty or certification made by Seller in this Agreement or in any other written document or certificate delivered pursuant to this Agreement, (ii) any breach Breach of the covenants a covenant or agreements agreement made by Seller in this Agreement or in any other written document or certificate pursuant to this Agreement, (iii) any Excluded Liabilities inaccuracy in any Contract delivered by Seller pursuant to or in connection with this Agreement, (iv) Seller's ownership of the Purchased Assets prior to Closing, or (v) any claims of any third parties arising from or relating to any facts, circumstances or events occurring on or prior to the Closing Date with respect to the Purchased Assets or any of the foregoing, whether or not disclosed to Buyer herein or in any schedule hereto (collectively, “"Buyer Indemnifiable Damages”"). Without limiting the generality of the foregoing, Indemnifiable Damages shall be measured on a pre-Tax basis, and with respect to the measurement of Indemnifiable Damages, (i) Buyer shall have the right to be put in the same pre-Tax tax consolidated financial position considering as it would have been in had each of the pre-Tax effects representations and warranties of any Seller hereunder been true and correct and had the covenants and agreements of each of Seller hereunder been performed in full. Notwithstanding anything to the contrary set forth herein, the total Buyer Indemnifiable Damages for which Seller shall be collectively liable hereunder shall not exceed an amount equal to the Purchase Price (the "Buyer Indemnification Cap"). Notwithstanding anything to the contrary set forth herein, Buyer Indemnification Cap shall not apply to and (ii) there shall be no limitation or restriction whatsoever on the indemnity payment Liability of Seller under this Article 8 for Buyer Indemnifiable Damages with respect to or arising from any one or more of the following and no Buyer Indemnifiable Damages arising from any of the following shall be calculated after taking into account all reductions included in federaldetermining whether Buyer Indemnification Cap has been met: (a) a Breach of any one or more of the representations and warranties set forth in the first or last sentence of Section 4.1, stateor in Section 4.2, local and foreign Taxes Section 4.3; (b) any willful or intentional Breach of any representation, warranty, covenant or agreement made in or pursuant to this Agreement (including estimated Taxesin the Schedules and Exhibits attached hereto) realized or in any Assigned Contract delivered by Seller pursuant to this Agreement; and (c) any act of fraud or act in the indemnified party as a result nature of fraud in connection with the event giving rise to such Indemnifiable Damages. Buyer shallexecution, and shall cause its Affiliates to, realize all such reductions in federal, state, local and foreign Taxes reasonably availabledelivery or performance of this Agreement, including through any fraudulent representation or warranty made in or pursuant to this Agreement (including in the filing of amended Tax Returns. Notwithstanding the foregoing, no claim for Indemnifiable Damages (except for claims for breaches of covenants, which may be asserted without regard Schedules and Exhibits attached hereto) or in any Assigned Contract delivered by Seller pursuant to the Indemnification Threshold) shall be asserted by Buyer until the aggregate of all Indemnifiable Damages exceeds the sum of Five Thousand Dollars ($5,000) (the “Indemnification Threshold”), or in which case Buyer shall be entitled to collect all Indemnifiable Damages from the first dollar thereof, without regard to the Indemnification Threshold. Further, Buyer shall have no right to collect Indemnifiable Damages in excess of the Purchase Priceconnection with this Agreement.

Agreement by Seller to Indemnify. Seller hereby agrees to shall indemnify Buyer against and hold Buyer harmless from, any and each of its officersall losses, directorsliabilities, employeescosts, Affiliatesdamages, successors claims, taxes and assigns expenses, including attorney fees and paralegal fees (collectively, for the purpose "Damages"), which Buyer may sustain by reason of this Article VIII, “Buyer”) harmless from and against the aggregate of all expenses, losses, costs, deficiencies, liabilities and damages (including related counsel and paralegal fees and expenses) incurred or suffered by Buyer arising out of or resulting from (i) Seller's noncompliance with any breach of a representation, warranty applicable bulk sales or certification made by Seller in this Agreement or in any other written document or certificate delivered pursuant to this Agreementtransfer law, (ii) any breach of the covenants or agreements made by Seller Retained Liability (as defined in this Agreement or in any other written document or certificate to this AgreementSection 2.5), (iii) any Excluded Liabilities obligation of, or performance of services by, Seller under the Transition Agreement, including without limitation any liability arising from defects in the Post-Closing BiliCals (collectivelyas defined in the Transition Agreement), “Indemnifiable Damages”and any liability arising from defective repair of BiliCheck products by Seller during the Transition Period (as defined in the Transition Agreement). Without limiting , (iv) subject to the generality provisions of Section 12 of the foregoing, Indemnifiable Damages shall be measured on a pre-Tax basis, Purchasing and License Agreement with respect to infringement suits relating to products sold in the measurement United States and Canada prior to the Closing and to the * CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED provisions of Indemnifiable DamagesSection 11.4 below, any liability to or claim by a third party where any Intellectual Property is alleged to infringe the patents or other intellectual property rights of such third party, except for liabilities and claims which arise from the actions or inactions of Buyer (other than Buyer's sale, in a form unmodified by Buyer, of BiliChecks, BiliCals, BilEclipses or other products sold by Seller in the BiliCheck Business, or if such products are modified by Buyer, the modification is not the cause of the alleged infringement), (iv) Buyer shall have the right to be put in the same pre-Tax consolidated financial position considering the pre-Tax effects any liability under Section 6.3 of this Agreement, (vi) any Indemnifiable Damages and (ii) the indemnity payment liability under Section 2.9 of this Agreement with respect to fixed assets or (vii) the breach or inaccuracy of or failure to comply with, or the existence of any Indemnifiable Damages shall be calculated after taking into account all reductions facts resulting in federalthe inaccuracy of, state, local and foreign Taxes (including estimated Taxes) realized by the indemnified party as a result any of the event giving rise to such Indemnifiable Damages. Buyer shallwarranties, and shall cause its Affiliates torepresentations, realize all such reductions conditions, covenants or agreements of Seller contained in federalthis Agreement, statethe Transition Agreement, local and foreign Taxes reasonably availablethe Multiuse IP License or in any other agreement, including through the filing of amended Tax Returns. Notwithstanding the foregoing, no claim for Indemnifiable Damages (except for claims for breaches of covenants, which may be asserted without regard to the Indemnification Threshold) shall be asserted by Buyer until the aggregate of all Indemnifiable Damages exceeds the sum of Five Thousand Dollars ($5,000) (the “Indemnification Threshold”)certificate or document delivered pursuant hereto or thereto, in which case Buyer shall be entitled to collect all Indemnifiable Damages from the first dollar thereofconnection herewith or therewith, without regard to the Indemnification Threshold. Further, Buyer shall have no right to collect Indemnifiable Damages in excess or arising out of the Purchase Priceconsummation of the transactions contemplated hereby or thereby.