AGREEMENT BY THE SHAREHOLDERS TO INDEMNIFY. The Shareholders jointly and severally agree to indemnify and hold Republic harmless from and against the aggregate of all expenses, losses, costs, deficiencies, liabilities and damages (including, without limitation, related counsel and paralegal fees and expenses) incurred or suffered by Republic (collectively, "Indemnifiable Damages") arising out of or resulting from (i) any breach of a representation or warranty made by the Shareholders in or pursuant to this Agreement, (ii) any breach of the covenants or agreements made by the AAA Companies or any Shareholder in or pursuant to this Agreement, (iii) any inaccuracy in any certificate delivered by the AAA Companies or any Shareholder pursuant to this Agreement, (iv) any Claim (as such term is defined in Section 8.5 hereof), or (v) any matters set forth on Schedules 3.12, 3.29 and 3.19 attached hereto. Without limiting the generality of the foregoing, with respect to the measurement of Indemnifiable Damages, Republic shall have the right to be put in the same pre-tax consolidated financial position as it would have been in had each of the representations and warranties of the Shareholders hereunder been true and correct and had the covenants and agreements of the AAA Companies and the Shareholders hereunder been performed in full. Notwithstanding the foregoing, after the Effective Time, the maximum liability of the Shareholders for Indemnifiable Damages for any breach of the representations, warranties, covenants and agreements hereunder shall not exceed in the aggregate the Purchase Price (the "Indemnification Limitation"); provided, however, that any Indemnifiable Damages resulting from or arising out of (i) any Claim (as defined in Section 8.5) and (ii) any matters set forth in Schedules 3.12, 3.29 and 3.19, shall not be applied against or subject to the foregoing Indemnification Limitation. Republic hereby agrees to use its, and cause its subsidiaries to use their, reasonable efforts to mitigate any claim for Indemnifiable Damages hereunder, including but not limited to seeking recovery under applicable insurance policies or from third parties. Republic hereby agrees to promptly deliver to the Shareholders any insurance proceeds received by Republic or any of the AAA Companies after the Effective Time,
Appears in 1 contract
AGREEMENT BY THE SHAREHOLDERS TO INDEMNIFY. The Shareholders agree, jointly and severally agree severally, to indemnify and hold Republic Medical Manager, its Affiliates and their respective stockholders, directors, officers, employees, attorneys, agents, successors and assigns (the "Indemnified Parties") harmless from and against the aggregate of all expenses, losses, costs, deficiencies, liabilities and damages (including, without limitation, related counsel and paralegal fees and expenses) incurred or suffered by Republic (collectivelythe Indemnified Parties, "Indemnifiable Damages") arising out of or resulting from (i) any breach of a representation or warranty made by the Shareholders Company or any Shareholder in or pursuant to this Agreement, (ii) any breach of the covenants or agreements made by the AAA Companies Company or any Shareholder in or pursuant to this Agreement, (iii) any inaccuracy in any certificate certificate, instrument or other document delivered by the AAA Companies Company or any Shareholder pursuant to this Agreement, Agreement or (iv) any Claim (as such term is defined in Section 8.5 hereof)Excluded Liabilities of the Company and its Affiliates which the Indemnified Parties are required to pay, or (v) any matters matter identified on Schedule 3.12, (vi) the failure to obtain the consent of any landlord to the transactions contemplated under this Agreement, if such consent is required pursuant to the terms of any of the real estate leases set forth on Schedules 3.12Schedule 3.14, 3.29 and 3.19 attached hereto(vii) any breach by CTF or the Shareholders of any representation, warranty, covenant or agreement under or made pursuant to the Asset Purchase Agreement (collectively, "Indemnifiable Damages"). Without limiting the generality of the foregoing, with respect to the measurement of Indemnifiable Damages, Republic the Indemnified Parties shall have the right to be put in the same pre-tax consolidated financial position as it would have been in had each of the representations and warranties of the Company and the Shareholders hereunder been true and correct and had the covenants and agreements of the AAA Companies Company and the Shareholders hereunder been performed in full. Notwithstanding the foregoingforegoing provisions, after the Effective Time, the maximum liability of the Shareholders no claim for Indemnifiable Damages (except for any claims under clauses (ii), (iv), (v) and (vi) of this Section 8.1, and except for claims for breach of Section 5.8 or of the representationslast sentence of Section 5.11), warrantiesshall be asserted by the Indemnified Parties until the aggregate of all Indemnifiable Damages (i.e. the Indemnifiable Damages, covenants and agreements hereunder shall not exceed in the aggregate under both this Agreement and under the Asset Purchase Price Agreement) exceeds the sum of Fifty Thousand Dollars ($50,000) (the "Indemnification LimitationThreshold"); provided, however, that any in which case the Indemnified Parties shall be entitled to the full amount of Indemnifiable Damages resulting from in excess of $50,000. Notwithstanding the foregoing or arising out any other provision of (i) any Claim (as defined in this Agreement, the parties agree that the aggregate Indemnifiable Damages that may be paid by the Shareholders and the Company, other than for claims under Section 8.5) and (ii) any matters set forth in Schedules 3.12, 3.29 and 3.195.8, shall not be applied against exceed the sum of the Purchase Price. If any indemnity payment is made hereunder by the Company or subject to the foregoing Indemnification Limitation. Republic hereby agrees to use itsby either Shareholder, and cause its subsidiaries to use their, reasonable efforts to mitigate any claim for Indemnifiable Damages hereunder, including but not limited to seeking recovery under applicable insurance policies or from third parties. Republic hereby agrees to promptly deliver to then the Shareholders and the Company shall each be subrogated to any insurance proceeds received by Republic or any rights which Medical Manager would have had against third parties in the absence of the AAA Companies after the Effective Time,such indemnity.
Appears in 1 contract
AGREEMENT BY THE SHAREHOLDERS TO INDEMNIFY. The Shareholders jointly and severally agree to indemnify and hold Republic harmless from and against the aggregate of all expenses, losses, costs, deficiencies, liabilities and damages (including, without limitation, related counsel and paralegal fees and expenses) incurred or suffered by Republic (collectively, "Indemnifiable Damages") arising out of or resulting from from: (ia) any breach of a representation or warranty made by the Shareholders Shareholders, the Taorminas or the Company in or pursuant to this Agreement, ; (iib) any breach of the covenants or agreements made by the AAA Companies Shareholders, the Taorminas or any Shareholder the Company in or pursuant to this Agreement, ; or (iiic) any inaccuracy in any certificate delivered by the AAA Companies Shareholders, the Taorminas or any Shareholder the Company pursuant to this AgreementAgreement (collectively, (iv) any Claim (as such term is defined in Section 8.5 hereof"Indemnifiable Damages"), or (v) any matters set forth on Schedules 3.12, 3.29 and 3.19 attached hereto. Without limiting the generality of the foregoing, with With respect to the measurement of Indemnifiable Damages, Republic shall have the right to be put in the same preafter-tax consolidated financial position as it would have been in had each of the such representations and warranties of the Shareholders hereunder been true and correct and had the such covenants and agreements of the AAA Companies and the Shareholders hereunder been performed in full. Notwithstanding anything to the foregoingcontrary contained herein (other than the proviso at the end of this sentence), after the Effective Time, the maximum liability of the Shareholders for Republic shall not be entitled to any Indemnifiable Damages for any unless the aggregate of all Indemnifiable Damages exceeds Two Million Dollars ($2,000,000) ("Indemnification Threshold"), in which case Republic shall be entitled to (i) the full amount of such Indemnifiable Damages if such Indemnifiable Damages result from a breach of Section 4.1(c) or the representationsrepresentations as to total indebtedness and Adjusted Total Stockholders Equity as provided in Section 3.11, warranties, covenants and agreements hereunder shall not exceed or (ii) the amount of such Indemnifiable Damages in excess of One Million Dollars ($1,000,000) if the aggregate the Purchase Price (the "Indemnification Limitation")Indemnifiable Damages result from anything other than a breach of Section 4.1(c) or such representations of Section 3.11; provided, provided however, that the Indemnification Threshold shall not apply with respect to, and Republic shall be entitled to the full amount of any Indemnifiable Damages resulting from any breach of representations set forth in Section 3.5 hereof or arising any representations set forth in any factual certificate delivered to Repulic relating to the share ownership of the Company. In the case of any claim for Indemnifiable Damages, Republic agrees that it shall satisfy such claim only out of the following, and in the following order: (i) first, out of any Claim Held Back Shares (or any Cash Collateral, as defined in Section 8.59.4 below) and still held by Republic, (ii) second, out of any matters set forth in Schedules 3.12, 3.29 and 3.19, shall not be applied against other Republic Shares (or subject to the foregoing Indemnification Limitation. any shares of Republic hereby agrees to use its, and cause its subsidiaries to use their, reasonable efforts to mitigate any claim for Indemnifiable Damages hereunder, including but not limited to seeking recovery under applicable insurance policies or from third parties. Republic hereby agrees to promptly deliver Common Stock issued to the Shareholders in connection with any insurance proceeds received stock split or stock dividend effected by Republic or any of the AAA Companies after the Effective Time,) which are still held by the Shareholders valued at a price equal to the Average Closing Share Price, and (iii) third, out of any Proceeds received by the Shareholders or the Taorminas on account of the sale of any of the Republic Shares (or any shares of Republic Common Stock issued in connection with any stock split or stock dividend effected by Republic after the Effective Time). After such amounts have been exhausted, the Shareholders and the Taorminas shall have no further liability for Indemnifiable Damages. As used in this Section 9.1, "Proceeds" shall mean (i) in the case of the sale at Fair Market Value of any of the Republic Shares, the net proceeds received on account of such sale, after deducting any
Appears in 1 contract
AGREEMENT BY THE SHAREHOLDERS TO INDEMNIFY. The Shareholders and the Company agree, jointly and severally agree severally, to indemnify and hold Republic Medical Manager, its Affiliates and their respective stockholders, directors, officers, employees, attorneys, agents, successors and assigns (the "Indemnified Parties") harmless from and against the aggregate of all expenses, losses, costs, deficiencies, liabilities and damages (including, without limitation, related counsel and paralegal fees and expenses) incurred or suffered by Republic (collectivelythe Indemnified Parties, "Indemnifiable Damages") arising out of or resulting from (i) any breach of a representation or warranty made by the Shareholders Company or any Shareholder in or pursuant to this Agreement, (ii) any breach of the covenants or agreements made by the AAA Companies Company or any Shareholder in or pursuant to this Agreement, (iii) any inaccuracy in any certificate certificate, instrument or other document delivered by the AAA Companies Company or any Shareholder pursuant to this Agreement, Agreement or (iv) any Claim (as such term is defined in Section 8.5 hereof)Excluded Liabilities of the Company and its Affiliates which the Indemnified Parties are required to pay, or (v) any matters matter identified on Schedule 3.12, (vi) the failure to obtain the consent of any landlord to the assignment of the real estate leases set forth on Schedules 3.12Schedule 3.14, 3.29 if such consent is required pursuant to the terms of such leases, and 3.19 attached hereto(vii) any breach by CTT or the Shareholders of any representation, warranty, covenant or agreement under or made pursuant to the Stock Purchase Agreement (collectively, "Indemnifiable Damages"). Without limiting the generality of the foregoing, with respect to the measurement of Indemnifiable Damages, Republic the Indemnified Parties shall have the right to be put in the same pre-tax consolidated financial position as it would have been in had each of the representations and warranties of the Company and the Shareholders hereunder been true and correct and had the covenants and agreements of the AAA Companies Company and the Shareholders hereunder been performed in full. Notwithstanding the foregoingforegoing provisions, after the Effective Time, the maximum liability of the Shareholders no claim for Indemnifiable Damages (except for any claims under clauses (ii), (iv), (v) and (vi) of this Section 8.1, and except for claims for breach of Section 5.8), shall be asserted by the representationsIndemnified Parties until the aggregate of all Indemnifiable Damages (i.e. the Indemnifiable Damages, warranties, covenants and agreements hereunder shall not exceed in the aggregate aggregate, under both this Agreement and under the Stock Purchase Price Agreement) exceeds the sum of Fifty Thousand Dollars ($50,000) (the "Indemnification LimitationThreshold"); provided, however, that any in which case the Indemnified Parties shall be entitled to the full amount of Indemnifiable Damages resulting from in excess of $50,000. Notwithstanding the foregoing or arising out any other provision of (i) any Claim (as defined in this Agreement, the parties agree that the aggregate Indemnifiable Damages that may be paid by the Shareholders and the Company, other than for claims under Section 8.5) and (ii) any matters set forth in Schedules 3.12, 3.29 and 3.195.8, shall not be applied against exceed the sum of the Purchase Price and the Receivables Debt. If any indemnity payment is made hereunder by the Company or subject to the foregoing Indemnification Limitation. Republic hereby agrees to use itsby either Shareholder, and cause its subsidiaries to use their, reasonable efforts to mitigate any claim for Indemnifiable Damages hereunder, including but not limited to seeking recovery under applicable insurance policies or from third parties. Republic hereby agrees to promptly deliver to then the Shareholders and the Company shall each be subrogated to any insurance proceeds received by Republic or any rights which Medical Manager would have had against third parties in the absence of the AAA Companies after the Effective Time,such indemnity.
Appears in 1 contract
AGREEMENT BY THE SHAREHOLDERS TO INDEMNIFY. The Shareholders jointly and severally (except that the Shareholders shall be severally, but not jointly, liable for any breach of Section 6.6) agree to indemnify and hold Republic Kellxxxxx xxx each of the Kellxxxxx Xxxpanies and each of their respective officers, directors, employees, attorneys and Affiliates (each a "Kellxxxxx Xxxemnified Party" and collectively the "Kellxxxxx Xxxemnified Parties") harmless from and against the aggregate of all expenses, losses, costs, deficiencies, liabilities and damages (including, without limitation, related reasonable counsel and paralegal fees and expenses) incurred or suffered by Republic (collectively, "Indemnifiable Damages") any of the Kellxxxxx Xxxemnified Parties arising out of or resulting from (i) any breach of a representation or warranty made by Certified or the Shareholders (or either of them) in or pursuant to this AgreementAgreement (including the schedules hereto and any certificates executed and delivered by Certified or the Shareholders (or either of them) pursuant to or in connection herewith), (ii) any breach of the covenants a covenant or agreements agreement made by Certified or the AAA Companies Shareholders (or any Shareholder either of them) in or pursuant to this Agreement, (iii) any inaccuracy in any statement made by Certified or the Shareholders (or either of them) in any certificate executed and delivered by Certified or the AAA Companies Shareholders (or any Shareholder either of them) pursuant to or in connection with this Agreement, (iv) any Claim liability of Certified or the Shareholders (as such term is defined or either of them) for income Taxes arising from or relating to any Pre-Closing Period (whether or not disclosed in Section 8.5 hereof)this Agreement or disclosed, referenced or incorporated by reference in any of the schedules hereto) in an amount which exceeds the amount set forth or reserved therefor in the Adjusted Closing Date Balance Sheet, (v) any matters set forth on Schedules 3.12Environmental Liabilities (whether or not disclosed in this Agreement or disclosed, 3.29 and 3.19 attached hereto. Without limiting the generality referenced or incorporated by reference in any of the foregoingschedules hereto) arising from or relating to any facts, circumstances or events occurring on or prior to the Closing Date with respect to Certified or its business or the measurement Property, except for any Environmental Liabilities arising from any change in any law, rule or regulation following the Closing Date, (vi) any claims of Indemnifiable Damagesany third parties arising from or relating to any facts, Republic shall have circumstances or events occurring on or prior to the right Closing Date with respect to be put Certified or its business other than those (a) arising from a change in any law, rule or regulation following the same pre-tax consolidated financial position as it would have been Closing Date, (b) set forth or reserved for on the Adjusted Closing Date Balance Sheet, or (c) expressly and specifically disclosed in had each this Agreement or any of the representations schedules hereto, and warranties (vii) any claims, obligations or liabilities arising from or relating to the business and operations of the Shareholders hereunder been true and correct and had the covenants and agreements of the AAA Companies and the Shareholders hereunder been performed in fullQC Metallurgical, Inc. (collectively, "Kellxxxxx Xxxemnifiable Damages"). Notwithstanding the foregoingforegoing provisions or anything contained herein to the contrary, after (a) no claim for Kellxxxxx Xxxemnifiable Damages shall be asserted by the Effective TimeKellxxxxx Xxxemnified Parties until the aggregate of all Kellxxxxx Xxxemnifiable Damages exceeds Three Hundred Thousand Dollars ($300,000) (the "Kellxxxxx Xxxemnification Threshold"), at which time the maximum Kellxxxxx Xxxemnified Parties shall only be entitled to the aggregate amount by which the Kellxxxxx Xxxemnifiable Damages exceeds the Kellxxxxx Xxxemnification Threshold, PROVIDED, HOWEVER, that the Kellxxxxx Xxxemnification Threshold shall not apply to (i) any Kellxxxxx Xxxemnifiable Damages arising under subsections (iv) or (vii) of this Section 9.1 above, (ii) a breach of any covenant or agreement of Shareholders contained in Article II, Section 6.6, Section 6.10 or Section 6.23 hereof, or (iii) any Kellxxxxx Xxxemnifiable Damages arising with subsection (v) of this Section 9.1 which constitute Remediation Costs, and (b) the total Kellxxxxx Xxxemnifiable Damages for which the Shareholders shall be liable hereunder shall not exceed an aggregate of Eight Million Dollars ($8,000,000) (the "Kellxxxxx Xxxemnification Cap"), PROVIDED, HOWEVER, that the Kellxxxxx Xxxemnification Cap shall not apply to and there shall be no limitation or restriction whatsoever on the liability of the Shareholders under this Article IX for Indemnifiable Kellxxxxx Xxxemnifiable Damages for with respect to or arising from any breach one or more of the representationsfollowing, warranties, covenants and agreements hereunder no Kellxxxxx Xxxemnifiable Damages arising therefrom shall not exceed be included in determining whether the aggregate the Purchase Price (the "Indemnification Limitation"); provided, however, that any Indemnifiable Damages resulting from or arising out of Kellxxxxx Xxxemnification Cap has been met: (i) a breach of any Claim (as defined one or more of the representations or warranties set forth in the first or last sentence of Section 4.1, or in Section 8.5) and 4.2, Section 4.3, Section 4.4, Section 4.5, Section 4.13 or the sixth sentence of Section 4.15(a), (ii) any matters set forth Kellxxxxx Xxxemnifiable Damages arising under subsections (iv), (v) or (vii) of this Section 9.1 above, (iii) any act of fraud in Schedules 3.12connection with the execution, 3.29 and 3.19delivery or performance of this Agreement, shall not be applied against including, without limitation, any fraudulent representation or subject warranty made in or pursuant to the foregoing Indemnification Limitation. Republic hereby agrees to use itsthis Agreement, and cause its subsidiaries to use theiror (iv) a breach of any covenant or agreement contained in Article II or Section 6.6, reasonable efforts to mitigate any claim for Indemnifiable Damages hereunder, including but not limited to seeking recovery under applicable insurance policies Section 6.10 or from third parties. Republic hereby agrees to promptly deliver to the Shareholders any insurance proceeds received by Republic or any of the AAA Companies after the Effective Time,Section 6.23 hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kellstrom Industries Inc)
