by Newco. Each Party, jointly and severally with its Affiliated Group, agrees to pay and to indemnify and hold the other Party harmless from and against the amount of Restructuring Taxes and liability to shareholders allocated to such first Party under this subsection 2.3(c).
by Newco. (i) if the Company (A) shall have breached any of the covenants or agreements contained in this Agreement to be complied with by the Company such that the closing condition set forth in Section 7.2(b) would not be satisfied or (B) there exists a breach of any representation or warranty of the Company contained in this Agreement such that the closing condition set forth in Section 7.2(a) would not be satisfied, and, in the case of either (A) or (B), such breach is incapable of being cured by the Termination Date or is not cured by the Company within twenty (20) Business Days after the Company receives written notice of such breach from Newco;
(ii) if, prior to the obtaining of the Company Stockholder Approval (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company shall have failed to include in the Proxy Statement the recommendation of the Board of Directors of the Company or any committee thereof that its stockholders vote in favor of the Merger and the transactions contemplated by this Agreement, (C) a tender or exchange offer relating to any Company Shares shall have been commenced and the Company shall not have sent to its security holders, within ten (10) Business Days after the commencement of such tender or exchange offer, a statement disclosing that the Company recommends rejection of such tender or exchange offer or (D) the Board of Directors of the Company or any committee thereof approves or recommends a Takeover Proposal to the holders of Company Shares or approves or recommends that holders of Company Shares tender their Company Shares in any tender offer or exchange offer; or
(iii) if the Company breaches in any material respect any of its obligations under Section 6.2 or 6.3(a).
by Newco. NewCo shall indemnify, hold harmless and defend BBI from and against any and all claims, disputes, demands, causes of action, suits, proceedings, losses, damages, liabilities, obligations, costs, and expenses of every kind and nature, including without limitation reasonable attorneys' fees and legal costs and expenses in connection therewith, whether known or unknown, and whether now existing or hereafter arising, which may be threatened against, incurred, undertaken, received or paid by BBI:
(i) in connection with or which arise out of or result from or are based upon (A) NewCo's operations or business transactions or its relationship with any of its employees, or (B) NewCo's failure to comply with any statute or regulation of any federal, state or local government or agency (or any political subdivision thereof) in connection with the transactions described in this Agreement;
(ii) in connection with or which arise out of or result from or are based upon of any fact, condition or circumstance that constitutes a breach by NewCo of, or any inaccuracy, incompleteness or inadequacy in, any of its representations or warranties under or in connection with this Agreement, or any failure of NewCo to perform any of its covenants, agreements or obligations under or in connection with this Agreement; and,
(iii) in connection with or which arise out of or result from or are based upon any information provided by it which is included in the Proxy Statement and which information causes the Proxy Statement at the time of its mailing to BBI's shareholders to contain any untrue statement of a material fact or to omit any material fact required to be stated therein or necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not false or misleading.
by Newco. (i) upon a breach of any covenant or agreement on the part of the Company, or if any representation or warranty of the Company shall be untrue, in any case such that the conditions set forth in Section 5.2(a) or Section 5.2(b) would not be satisfied (assuming that the date of such determination is the Closing Date); provided that if such breach is curable by the Company through the exercise of reasonable best efforts and the Company continues to exercise such reasonable best efforts, Newco may not terminate this Agreement under this Section 6.1(d)(i); or
(ii) if the board of directors of the Company shall have publicly disclosed a Change in Recommendation.
by Newco. If any matter subject to indemnification hereunder arises in the form of a claim against NewCo, its successors and assigns (collectively, "Indemnitee") (herein referred to as a "Third Party Claim"), the applicable Indemnitee promptly shall give notice and details thereof, including copies of all pleadings and pertinent documents, to BBI. Within fifteen (15) days of such notice, BBI either (i) shall pay the Third Party Claim either in full or upon agreed compromise or (ii) shall notify the applicable Indemnitee and NewCo that BBI disputes the Third Party Claim and intends to defend against it, and thereafter shall so defend and pay any adverse final judgment or award in regard thereto. Such defense shall be controlled by BBI and the cost of such defense shall be borne by BBI except that the applicable Indemnitee shall have the right to participate in such defense at its own expense and provided that BBI shall have no right in connection with any such defense or the resolution of any such Third Party Claim to impose any cost, restriction, limitation or 40 condition of any kind upon any of the parties comprising Indemnitee hereunder. NewCo agrees that it shall cooperate in all reasonable respects in the defense of any such Third Party Claim, including making personnel, books and records relevant to the Third Party Claim available to BBI without charge therefor except for out-of-pocket expenses. If BBI fails to take action within fifteen (15) days as hereinabove provided or, having taken such action, thereafter fails diligently to defend and resolve the Third Party Claim, the parties comprising Indemnitee shall have the right to pay, compromise or defend the Third Party Claim and to assert the indemnification provisions hereof. Each of the parties comprising Indemnitee also shall have the right, exercisable in good faith, to take such action as may be necessary to avoid a default prior to the assumption of the defense of the Third Party Claim by BBI.
by Newco if (a) the individuals who as of the date of this Agreement constituted the Board of Directors of Parent and (b) any other individuals who become directors of Parent between the date of this Agreement and the Closing Date and whose election to the Board of Directors of Parent or whose nomination for election to the Board of Directors of Parent by the stockholders of Parent were approved by a majority of the directors of Parent then in office who are referred to in clause (a) or this clause (b), cease for any reason to constitute a majority of the Board of Directors of Parent;
by Newco if as a result of closing a tender offer or exchange offer that was not approved or recommended by the Board of Directors of Parent prior to the commencement of such tender offer or exchange offer, any Person (collectively with such Person's Affiliates) acquires 35% or more of the issued and outstanding Parent Common Stock;
by Newco upon consummation of a sale of or agreement to sell all or substantially all of Parent's or its Subsidiaries' assets that requires approval of Parent's stockholders pursuant to Delaware General Corporation Law;
by Newco. (A) if there shall have been a breach of any of the covenants or agreements or a failure to be true of any of the representations or warranties set forth in this Agreement on the part of the Company (except the covenants and agreements that provide a right of termination pursuant to Section 5.4), which breach or failure to be true, either individually or in the aggregate and, in the case of the representations and warranties, measured on the date of this Agreement or, if provided herein, as of any subsequent date (as if made on such date), would result in the failure of the conditions set forth in Section 4.1 or 4.2, as the case may be, and which is not cured within the earlier of (i) the Termination Date and (ii) thirty (30) days following written notice to the Company, or which by its nature or timing cannot be cured within such time period; provided, however, that Newco shall not have the right to terminate this Agreement pursuant to this Section 6.1(a)(vii)(A) if Newco is then in material breach of any of its covenants or agreements contained in this Agreement and such breach has resulted in the circumstances giving rise to Newco’s seeking to terminate its obligation to effect the Closing.
(B) if all the conditions set forth in Section 4.1 and 4.3 have been satisfied and the Company has failed to consummate the Recapitalization Transactions no later than ten (10) Business Days after the satisfaction of such conditions.
by Newco. Newco agrees to indemnify and hold harmless, to the full extent permitted by law, each Selling Stockholder, its officers, directors and agents, and each person, if any, who controls any of the foregoing persons within the meaning of the Securities Act against all losses, claims, damages, liabilities and expenses, joint or several
