GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that they, jointly and severally, will indemnify, defend, protect and hold harmless QSI and the Company at all times, from and after the date of this Agreement, from and against all claims, damages, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "Claims") incurred by QSI or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are as a result of or arising from (i) any breach of the representations and warranties of the Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; (ii) any breach of any agreement on the part of the Stockholders under this Agreement; (iii) any liability under the 1933 Act, the 1934 Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI or its counsel by the Company or the Stockholders contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (v) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or the Company to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder.
Appears in 2 contracts
Samples: Agreement and Plan of Organization (Quanta Services Inc), Agreement and Plan of Organization (Quanta Services Inc)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations contained in Section 12.5 hereof, each Stockholder, jointly and severally, covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI UniCapital, Newco and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "ClaimsLosses") incurred by QSI UniCapital, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (ia) any breach of the representations and warranties of made by the Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; , (iib) any breach nonfulfillment of any covenant or agreement on the part of the Stockholders or the Company under this Agreement; , (iiic) the business, operations or assets of the Company prior to the Merger Effective Date or the actions or omissions of the Company's directors, officers, stockholders, employees or agents prior to the Merger Effective Date, other than Losses arising from matters expressly disclosed in the Financial Statements, this Agreement or the Schedules to this Agreement, or (d) any liability under the 1933 Securities Act, the 1934 Securities Exchange Act of 1934, as amended (the "Exchange Act") or other federal or state law or regulation, at common law or otherwise, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI or its counsel by the Company or the Stockholders contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement theretothereto (including any additional registration statement filed pursuant to Rule 462(b) under the Securities Act), which statement was provided or was based upon information or documents provided to UniCapital or its counsel by the Company or the Stockholders, or arising out of or based upon (ii) any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared information was not provided to UniCapital or its counsel by QSI; (v) any liability asserted against QSI the Company or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this AgreementStockholders; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI UniCapital, Newco or the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or such omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI UniCapital for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 2 contracts
Samples: Agreement and Plan of Contribution (Unicapital Corp), Agreement and Plan of Contribution (Unicapital Corp)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations --------------------------------------- contained in Section 12.5 hereof, the Stockholders, jointly and severally, covenant and agree that they will indemnify, defend, protect and hold harmless QSI USFloral, Newco and the Company Surviving Corporation and their respective officers, Stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "Claims") incurred by QSI USFloral, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporations as a result of or arising from (i) any breach of the representations and warranties of the made by Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; , (ii) any breach nonfulfillment of any agreement on the part of Stockholders or the Stockholders Company under this Agreement; Agreement or (iii) any liability under the Securities Act of 1933, as amended, (the "1933 Act"), the 1934 Exchange Act or other federal Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company (including the Company's Subsidiaries) or the Stockholders, and provided to QSI USFloral or its counsel by the Company (including any Company Subsidiary) or the Stockholders Stockholders, contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company (including any Company Subsidiary) or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating , and not provided to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared USFloral or its counsel by QSI; (v) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of (including the Company's Subsidiaries) or Stockholders, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or USFloral, Newco and the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI USFloral for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theyAfter the Effective Time, jointly and severallysubject to the limitations contained in Section 12.5 hereof, will each Stockholder shall indemnify, defend, protect and hold harmless QSI UniCapital and the Company its officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "ClaimsLosses") incurred by QSI or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are UniCapital as a result of or arising from (ia) any breach of the representations and warranties of made by the Individual Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; , (iib) any breach nonfulfillment of any covenant or agreement on the part of the Stockholders any Stockholder under this Agreement; , or (iiic) any liability under the 1933 Securities Act, the 1934 Securities Exchange Act of 1934, as amended (the "Exchange Act") or other federal or state law or regulation, at common law or otherwise, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact relating to the Company, any CLA Company or any Stockholder contained under the Stockholders, and provided to QSI "Identified Disclosure" (as defined below) or its counsel by the Company or the Stockholders contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon (ii) any omission or alleged omission to state therein in the Identified Disclosure of a material fact relating to the Company, any CLA Company or the Stockholders any Stockholder required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared information was provided to UniCapital or its counsel by QSI; (v) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the any CLA Company with respect to or any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this AgreementStockholder; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI UniCapital or any other indemnified person, Newco or the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or such omission (or alleged omission) occurred in, any preliminary prospectus and the Company, any CLA Company or the Stockholders provided, in writing, corrected information to QSI counsel and to QSI UniCapital for inclusion in the final prospectus, and such information was not so included. For purposes hereof, the term "Identified Disclosure" means (i) the disclosure contained under the captions "PROSPECTUS SUMMARY--The Founding Companies--Cauff, Lippxxx Xxxation, Inc. ("Cauff Lippxxx")," MANAGEMENT'S ANALYSIS AND DISCUSSION OF FINANCIAL CONDITION AND OPERATION RESULTS--The Founding Companies--Cauff, Lippxxx Xxxation, Inc." and BUSINESS--The Founding Companies--Cauff, Lippxxx Xxxation, Inc." or (ii) under any other caption identified in writing by UniCapital to the Stockholders as being included in the Identified Captions in any preliminary prospectus or properly deliveredthe final prospectus forming a part the Registration Statement, and or any amendment thereof or supplement thereto (B) that no Stockholder shall be liable for including any indemnification obligation additional registration statement filed pursuant to this Section 10.1 Rule 462(b) under the Securities Act), which disclosure was provided or was based upon information or documents provided to UniCapital or its counsel by the extent attributable to a breach of Company, any representation, warranty CLA Company or agreement made herein individually by any other Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations contained in Section 12.4 hereof, each Stockholder, jointly and severally, covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI UniCapital, Newco and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.4) from and against all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "ClaimsLosses") incurred by QSI UniCapital, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (ia) any breach of the representations and warranties of made by the Stockholders or the Company set forth herein or on in the schedules or certificates delivered in connection herewith; , (iib) any breach nonfulfillment of any covenant or agreement on the part of the Stockholders under this Agreement; (iii) any liability under the 1933 Act, the 1934 Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI or its counsel by the Company or the Stockholders contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (v) any liability asserted against QSI or the Company from matters occurring under this Agreement or (c) the business, operations or assets of the Company prior to the Closing Date and not listed on any Schedule or the actions or omissions of the Company's directors, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on officers, stockholders, employees or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date agents prior to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Closing Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations other than Losses arising from matters expressly disclosed in the ordinary course of business through Financial Statements, this Agreement or the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, Schedules to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or the Company to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Unicapital Corp)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations --------------------------------------- contained in Section 12.5 hereof, each Stockholder, jointly and severally, covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI USFloral, Newco and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "Claims") incurred by QSI USFloral, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (i) any breach of the representations and warranties of made by the Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; , (ii) any breach nonfulfillment of any agreement on the part of Stockholders or the Stockholders Company under this Agreement; Agreement or (iii) any liability under the 1933 Act, the 1934 Exchange Act or other federal Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI USFloral or its counsel by the Company or the Stockholders Stockholders, contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) , and not provided to USFloral or its counsel by the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (v) any liability asserted against QSI Company or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the CompanyStockholders, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or USFloral, Newco and the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI USFloral for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations --------------------------------------- contained in Section 12.5 hereof, STOCKHOLDERS, jointly and severally, covenant and agree that they will indemnify, defend, protect and hold harmless QSI USFLORAL, NEWCO and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "Claims") incurred by QSI USFLORAL, NEWCO or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (i) any breach of the representations and warranties of the Stockholders or the Company made by STOCKHOLDERS set forth herein or on the schedules or certificates delivered in connection herewith; , (ii) any breach nonfulfillment of any agreement on the part of the Stockholders STOCKHOLDERS or any COMPANY under this Agreement; Agreement or (iii) any liability under the Securities Act of 1933, as amended, (the "1933 Act"), the 1934 Securities Exchange Act of 1934, as amended (the "Exchange Act") or other federal Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company any COMPANY or the StockholdersSTOCKHOLDERS, and provided to QSI USFLORAL or its counsel by the Company any COMPANY or the Stockholders STOCKHOLDERS, contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company any COMPANY or the Stockholders STOCKHOLDERS required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (v) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on provided to USFLORAL or its counsel by any Schedule of the CompanyCOMPANY or STOCKHOLDERS, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or USFLORAL, NEWCO and the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders STOCKHOLDERS provided, in writing, corrected information to QSI counsel and to QSI USFLORAL for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations contained in Section 12.5 hereof, each Stockholder jointly and severally, covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI UniCapital, Newco and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "ClaimsLosses") incurred by QSI UniCapital, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (ia) any breach of the representations and warranties of made by the Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; , (iib) any breach nonfulfillment of any covenant or agreement on the part of the Stockholders or the Company under this Agreement; , (iiic) the business, operations or assets of the Company prior to the Merger Effective Date or the actions or omissions of the Company's directors, officers, stockholders, employees or agents prior to the Merger Effective Date, other than Losses arising from matters expressly disclosed in the Financial Statements, this Agreement or the Schedules to this Agreement, or (d) any liability under the 1933 Securities Act, the 1934 Securities Exchange Act of 1934, as amended (the "Exchange Act") or other federal or state law or regulation, at common law or otherwise, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI or its counsel by the Company or the Stockholders contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement theretothereto (including any additional registration statement filed pursuant to Rule 462(b) under the Securities Act), which statement was provided or was based upon information or documents provided to UniCapital or its counsel by the Company or the Stockholders, or arising out of or based upon (ii) any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared information was not provided to UniCapital or its counsel by QSI; (v) any liability asserted against QSI Company or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this AgreementStockholders; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI UniCapital, Newco or the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or such omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI UniCapital for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations contained in Section 12.4 hereof, each Stockholder, jointly and severally, covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI UniCapital, Newco and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.5) from and against all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "ClaimsLosses") incurred by QSI UniCapital, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (ia) any breach of the representations and warranties of made by the Company or the Stockholders or the Company set forth herein or on in the schedules or certificates delivered in connection herewith; , (iib) any breach nonfulfillment of any covenant or agreement on the part of the Stockholders under this Agreement; (iii) any liability under the 1933 Act, the 1934 Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI or its counsel by the Company or the Stockholders contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (v) any liability asserted against QSI or the Company from matters occurring under this Agreement or (c) the business, operations or assets of the Company prior to the Closing Date and not listed on any Schedule or the actions or omissions of the Company's directors, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on officers, stockholders, employees or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date agents prior to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Closing Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations other than Losses arising from matters expressly disclosed in the ordinary course of business through Financial Statements, this Agreement or the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, Schedules to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or the Company to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Unicapital Corp)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations contained in Section 12.4 hereof, each Stockholder, jointly and severally, covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI UniCapital, Newco and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.4) from and against all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "ClaimsLosses") incurred by QSI UniCapital, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (ia) any breach of the representations and warranties of made by the Company or the Stockholders or the Company set forth herein or on in the schedules or certificates delivered in 45 connection herewith; , (iib) any breach nonfulfillment of any covenant or agreement on the part of the Stockholders under this Agreement; (iii) any liability under the 1933 Act, the 1934 Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI or its counsel by the Company or the Stockholders contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (v) any liability asserted against QSI or the Company from matters occurring under this Agreement or (c) the business, operations or assets of the Company prior to the Closing Date and not listed on any Schedule or the actions or omissions of the Company's directors, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on officers, stockholders, employees or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date agents prior to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Closing Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations other than Losses arising from matters expressly disclosed in the ordinary course of business through Financial Statements, this Agreement or the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, Schedules to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or the Company to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Unicapital Corp)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant After the Closing, Parent, its Affiliates (including without limitation the Surviving Corporation and agree that theyits Subsidiaries) and their respective directors, officers, stockholders, employees, agents, representatives, successors and assigns (collectively, the “Buyer Indemnified Parties”) shall have the right to collect from the Stockholders, jointly but not severally and severally, will indemnify, defend, protect and hold harmless QSI and to the Company at all times, from and after full extent (but not further) of the date amount of the consideration received by them or by the Stockholder Representative and/or by the Merger Escrow Agent pursuant to the Merger and/or this Agreement, from any and against all claims, damages, actionslosses, suitsdeficiencies, proceedingscosts, demandsexpenses, assessmentsobligations, adjustmentsfines, costs expenditures and expenses (liabilities, including specifically, but without limitation, limitation reasonable attorneys' fees and expenses of investigation) counsel (collectively, "Claims") “Damages”), imposed upon or incurred or suffered by QSI or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are as a result of or arising from any Buyer Indemnified Party, resulting from:
(i) any breach of the representations and warranties of the Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; (iia) any breach of any representation or warranty of the Company contained in this Agreement;
(b) any breach or non-fulfillment of any agreement or covenant on the part of the Stockholders under Company contained in this Agreement; ;
(iiic) any liability under the 1933 Act, the 1934 Act inaccurate or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue incomplete statement or alleged untrue statement of a material fact relating information set forth in any Schedule, Updated Schedule or Exhibit to the Company or the Stockholders, and provided to QSI or its counsel by the Company or the Stockholders contained in the Registration Statement or any prospectus forming a part thereofthis Agreement, or any amendment thereof or supplement theretoto any of same, or arising out set forth in any certificate delivered to Parent or Merger Sub pursuant to or in connection with this Agreement or any of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; transactions contemplated herein.
(iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (vd) any liability asserted against QSI or of the Company from matters occurring incurred prior to the Closing Date and but not listed shown on the Financial Statements or disclosed on Schedule 8.1(d);
(e) any Schedule liability of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes or of the Company with respect to any taxable period ending on Surviving Corporation or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current Parent respecting a liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if anyfor any transaction, for the Taxes occurrence or other matter or thing whatsoever which occurred, or arose out of any other personof the foregoing which occurred, pursuant prior to Code the Closing;
(f) any amounts owed to Xxxxxx Xxxxxxxx and expenses incurred in connection therewith as referenced in Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or 8.4(b) not paid out of the Special Indemnity Fund;
(viiig) all Transfer any amounts owed to the Company and/or Parent and/or the Surviving Corporation with respect to financing costs referenced in Section 1.3(e)(i)(C).
(h) any amounts (including without limitation litigation fees and other Taxes arising expenses) owed to any Dissenting Stockholders who dissent from the transactions contemplated by Merger and prevail in an Action to be paid more per share than this AgreementAgreement provides for; provided, however, and
(Ai) that any Tax-Related Losses (as defined in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or the Company to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder9.1).
Appears in 1 contract
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations contained in Section 12.5 hereof, each Stockholder jointly and severally, covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI UniCapital, Newco and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "ClaimsLosses") incurred by QSI UniCapital, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (ia) any breach of the representations and warranties of made by the Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; , (iib) any breach nonfulfillment of any covenant or agreement on the part of the Stockholders or the Company under this Agreement; , (iiic) the business, operations or assets of the Company prior to the Merger Effective Date or the actions or omissions of the Company's directors, officers, stockholders, employees or agents prior to the Merger Effective Date, other than Losses arising from matters expressly disclosed in the Financial Statements, this Agreement or the Schedules to this Agreement, or (d) any liability under the 1933 Securities Act, the 1934 Securities Exchange Act of 1934, as amended (the "Exchange Act") or other federal or state law or regulation, at common law or otherwise, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI or (including its counsel by the Company Subsidiaries) or the Stockholders contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement theretothereto (including any additional registration statement filed pursuant to Rule 462(b) under the Securities Act), which statement was provided or was based upon information or documents provided to UniCapital or its counsel by the Company (including its Subsidiaries) or the Stockholders, or arising out of or based upon (ii) any omission or alleged omission to state therein a material fact relating to the Company (including its Subsidiaries) or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared information was not provided to UniCapital or its counsel by QSI; the Company (vincluding its Subsidiaries) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this AgreementStockholders; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI UniCapital, Newco or the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or such omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI UniCapital for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant covenants and agree that they, jointly and severally, will agrees to indemnify, defend, protect and hold harmless QSI Purchaser and the Company at Surviving Corporation and their respective officers, directors, employees, stockholders, assigns, successors and affiliates (individually, an "Indemnified Party" and collectively, "Indemnified Parties") from, against and in respect of:
(a) all timesliabilities, from and after the date of this Agreementlosses, from and against all claims, damages, actionspunitive damages, suitscauses of action, lawsuits, administrative proceedings (including informal proceedings), investigations, audits, demands, assessments, adjustments, judgments, settlement payments, deficiencies, penalties, fines, interest (including interest from the date of such damages) and costs and expenses (including specifically, but without limitation, limitation reasonable attorneys' fees and expenses disbursements of investigationevery kind, nature and description) (collectively, "ClaimsDamages") suffered, sustained, incurred or paid by QSI or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are as a result of Indemnified Parties in connection with, resulting from or arising from out of, directly or indirectly:
(i) any breach of the representations and warranties any representation or warranty of the Stockholders or the Company set forth herein in this Agreement or any Schedule or certificate, delivered by or on the schedules behalf of Company or certificates delivered Stockholders in connection herewith; or
(ii) any breach nonfulfillment of any covenant or agreement on by Stockholders or, prior to the part of the Stockholders Closing Date, Company, under this Agreement; ;
(iii) any liability under the 1933 Actbusiness, the 1934 Act operations or other federal or state law or regulation, at common law or otherwise, arising out assets of or based upon any untrue statement or alleged untrue statement of a material fact relating Company and its Subsidiaries prior to the Company Closing Date or the Stockholdersactions or omissions of Company's or any Subsidiary's directors, and provided officers, shareholders, employees or agents prior to QSI or its counsel by the Closing Date, other than Damages arising from matters expressly disclosed in the Company Financial Statements, this Agreement or the Stockholders contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission Schedules to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleadingthis Agreement; or
(iv) the matters described disclosed on Schedule 10.1(iv) Schedules 4.22 (relating to specifically identified matters such as ongoing claims and/or conformity with law; litigation), which schedule shall be prepared by QSI; 4.24 (vtaxes) and 4.27 (environmental matters).
(b) any liability asserted against QSI and all Damages incident to any of the foregoing or the Company from matters occurring prior to the Closing Date and not listed on any Schedule enforcement of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or the Company to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder9.1.
Appears in 1 contract
Samples: Stock Purchase Agreement (Genesisintermedia Com Inc)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations contained in Section 12.5 hereof, each Stockholder who is a stockholder of the Company, jointly and severally, covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI UniCapital, Newco and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "ClaimsLosses") incurred by QSI UniCapital, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (ia) any breach of the representations and warranties of made by the Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; , (iib) any breach nonfulfillment of any covenant or agreement on the part of the Stockholders or the Company under this Agreement; , (iiic) the business, operations or assets of the Company or any Subsidiary prior to the Merger Effective Date or the actions or omissions of the Company's or any Subsidiary's directors, officers, stockholders, employees or agents prior to the Merger Effective Date, other than Losses arising from matters expressly disclosed in the Audited Financial Statements, this Agreement or the Schedules to this Agreement, or (d) any liability under the 1933 Securities Act, the 1934 Securities Exchange Act of 1934, as amended (the "Exchange Act") or other federal or state law or regulation, at common law or otherwise, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI or (including its counsel by the Company Subsidiaries) or the Stockholders contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement theretothereto (including any additional registration statement filed pursuant to Rule 462(b) under the Securities Act), which statement was provided or was based upon information or documents provided to UniCapital or its counsel by any Company (including its Subsidiaries) or the Stockholders, or arising out of or based upon (ii) any omission or alleged omission to state therein a material fact relating to the Company (including its Subsidiaries) or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared information was not provided to UniCapital or its counsel by QSI; the Company (vincluding its Subsidiaries) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this AgreementStockholders; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI UniCapital, Newco or the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or such omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI UniCapital for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations --------------------------------------- contained in Section 12.5 hereof, each STOCKHOLDER, jointly and severally, covenant and agree that they will indemnify, defend, protect and hold harmless QSI USFLORAL, NEWCO and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "Claims") incurred by QSI USFLORAL, NEWCO or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (i) any breach of the representations and warranties of the Stockholders or the Company made by STOCKHOLDERS set forth herein or on the schedules or certificates delivered in connection herewith; , (ii) any breach nonfulfillment of any agreement on the part of STOCKHOLDERS or the Stockholders COMPANY under this Agreement; Agreement or (iii) any liability under the Securities Act of 1933, as amended (the "1933 Act"), the 1934 Securities Exchange Act of 1934, as amended (the "Exchange Act") or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company COMPANY or the StockholdersSTOCKHOLDERS, and provided to QSI USFLORAL or its counsel by the Company COMPANY or the Stockholders STOCKHOLDERS, contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company COMPANY or the Stockholders STOCKHOLDERS required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (v) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of provided to USFLORAL or its counsel by the CompanyCOMPANY or STOCKHOLDERS, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI USFLORAL, NEWCO or the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders STOCKHOLDERS provided, in writing, corrected information to QSI counsel and to QSI USFLORAL for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theythey will, jointly and severally, will indemnify, defenddefend (as to third party claims only), protect and hold harmless QSI Buyer, the Surviving Corporation, Company and the Company their respective officers, shareholders, directors, divisions, subdivisions, affiliates, subsidiaries, parent, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date from and against all liabilities claims, damages, actions, suits, proceedings, demands, assessments, adjustments, penalties, losses, costs and expenses whatsoever (including specifically, but without limitation, court costs, reasonable attorneys' fees and reasonable expenses, and reasonable expenses of investigation) (collectively, "Claims") whether equitable or legal, matured or contingent, known or unknown, foreseen or unforeseen, ordinary or extraordinary, patent or latent, whether arising out of occurrences prior to, at or after the date of this Agreement, incurred by QSI or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are as a result of or arising from incident to: (ia) any breach of of, misrepresentation in, untruth in or inaccuracy in the representations and warranties by Company or Stockholders (including, without limitation, those relating to the environmental condition of the Stockholders or the Company Land and Company's environmental compliance), set forth herein or on in the schedules Schedules, Exhibits or certificates attached hereto or delivered in connection herewithpursuant hereto; (iib) any breach nonfulfillment or nonperformance of any agreement agreement, covenant or condition on the part of the Stockholders under made in this Agreement; (iiic) nonfulfillment or nonperformance of any liability under agreement, covenant or condition on the 1933 Act, the 1934 Act or other federal or state law or regulation, at common law or otherwise, arising out part of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, made in this Agreement and provided to QSI or its counsel by the Company or the Stockholders contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (v) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending performed on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Closing Date; (viid) all the matters set forth in Section 11.1; (e) the existence of liabilities of Company in excess of the Companyliabilities represented by Stockholders and Company consistent with Sections 2.4 and 10.2; and (f) any claim by a third party that, if anytrue, would mean that a condition for the Taxes indemnification set forth in subsections (a) through (e) of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or the Company to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder12.2 had been satisfied.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S Liquids Inc)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations --------------------------------------- contained in Section 12.5 hereof, each Stockholder, jointly and severally, covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI USFloral, Newcos and the Company Surviving Corporations and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "Claims") incurred by QSI USFloral, Newcos or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporations as a result of or arising from (i) any breach of the representations and warranties of made by the Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; , (ii) any breach nonfulfillment of any agreement on the part of the Stockholders or either Company under this Agreement; Agreement or (iii) any liability under the 1933 Act, the 1934 Exchange Act or other federal Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the either Company or the Stockholders, and provided to QSI USFloral or its counsel by the either Company or the Stockholders Stockholders, contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the either Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating , and not provided to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared USFloral or its counsel by QSI; (v) any liability asserted against QSI either Company or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the CompanyStockholders, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI or USFloral, Newcos and the Company Surviving Corporations to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI USFloral for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations --------------------------------------- contained in Section 12.5 hereof, each of the STOCKHOLDERS, jointly and severally, covenants and agrees that they will indemnify, defend, protect and hold harmless QSI USFLORAL, NEWCO and the Company Surviving Corporation and their respective officers, stockholders, directors, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "Claims") incurred by QSI USFLORAL, NEWCO or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (i) any breach of the representations and warranties of the Stockholders or the Company made by STOCKHOLDERS set forth herein or on the schedules or certificates delivered in connection herewith; , (ii) any breach nonfulfillment of any agreement on the part of STOCKHOLDERS or the Stockholders COMPANIES under this Agreement; Agreement prior to the Merger Effective Date or (iii) any liability under the 1933 Act, the 1934 Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company COMPANIES or the StockholdersSTOCKHOLDERS, and provided to QSI USFLORAL or its counsel by the Company COMPANIES or the Stockholders STOCKHOLDERS, contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company COMPANIES or the Stockholders STOCKHOLDERS required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared by QSI; (v) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of provided to USFLORAL or its counsel by the CompanyCOMPANIES or STOCKHOLDERS, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this Agreement; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI USFLORAL, NEWCO or the Company Surviving Corporation to the extent that (i) such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders STOCKHOLDERS provided, in writing, corrected information to QSI counsel and to QSI USFLORAL for inclusion in the final prospectus, and such information was not so included or properly delivered, and (Bii) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 such untrue statement (or alleged untrue statement) or omission (or alleged omission) was corrected in writing by the STOCKHOLDERS prior to the extent attributable to effectiveness of the Registration Statement and such correction was not made in any preliminary prospectus, the Registration Statement or any prospectus forming a breach of part thereof, or any representation, warranty amendment thereof or agreement made herein individually by any other Stockholdersupplement thereto.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)
GENERAL INDEMNIFICATION BY STOCKHOLDERS. The Stockholders covenant and agree that theySubject to the limitations contained in Section 12.5 hereof, each Stockholder jointly and severally, severally covenants and agrees that such Stockholder will indemnify, defend, protect and hold harmless QSI UniCapital, Newco and the Company Surviving Corporation and their respective officers, stockholders, directors, divisions, subdivisions, affiliates, subsidiaries, parents, agents, employees, successors and assigns at all times, times from and after the date of this Agreement, Agreement until the Expiration Date (as defined in Section 12.6) from and against all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including specifically, but without limitation, reasonable attorneys' fees and expenses of investigation) (collectively, "ClaimsLosses") incurred by QSI UniCapital, Newco or the Company for which QSI or the Company deliver notice of such Claims to the Stockholders prior to the Expiration Date and which Claims are Surviving Corporation as a result of or arising from (ia) any breach of the representations and warranties of made by the Stockholders or the Company set forth herein or on the schedules or certificates delivered in connection herewith; , (iib) any breach nonfulfillment of any covenant or agreement on the part of the Stockholders or the Company under this Agreement; , (iiic) the business, operations or assets of the Company and its Subsidiary prior to the Merger Effective Date or the actions or omissions of the Company's or its Subsidiary's directors, officers, stockholders, employees, agents or partners prior to the Merger Effective Date, other than Losses arising from matters expressly disclosed in the Financial Statements, this Agreement or the Schedules to this Agreement, or (d) any liability under the 1933 Securities Act, the 1934 Securities Exchange Act of 1934, as amended (the "Exchange Act") or other federal or state law or regulation, at common law or otherwise, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to QSI or (including its counsel by the Company Subsidiary) or the Stockholders contained in any preliminary prospectus, the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement theretothereto (including any additional registration statement filed pursuant to Rule 462(b) under the Securities Act), which statement was provided or was based upon information or documents provided to UniCapital or its counsel by the Company (including its Subsidiary) or the Stockholders, or arising out of or based upon (ii) any omission or alleged omission to state therein a material fact relating to the Company (including its Subsidiary) or the Stockholders required to be stated therein or necessary to make the statements therein not misleading; (iv) the matters described on Schedule 10.1(iv) (relating to specifically identified matters such as ongoing claims and/or litigation), which schedule shall be prepared information was not provided to UniCapital or its counsel by QSI; the Company (vincluding its Subsidiary) any liability asserted against QSI or the Company from matters occurring prior to the Closing Date and not listed on any Schedule of the Company, where such liability would have been required to be listed on a Schedule; (vi) all Taxes of the Company with respect to any taxable period ending on or before the Funding and Consummation Date (or for any taxable period beginning before and ending after the Funding and Consummation Date to the extent allocable to the portion of such period beginning before and ending on the Funding and Consummation Date) to the extent such Taxes exceed the amount of the current liability accruals for Taxes (exclusive of reserves for deferred Taxes established to reflect timing differences) reflected on the balance sheet of the Company as of September 30, 1997 as adjusted for Company operations in the ordinary course of business through the Funding and Consummation Date in accordance with generally accepted accounting principles consistently applied and, to the extent consistent therewith, the most recent custom and practices of the Company; provided that the portion of any periodic Tax attributable to a taxable year or period beginning before and ending after the Funding and Consummation Date shall be determined by apportioning the Tax for the entire year or period based upon the number of days in the year or period, except that any such Tax measured by income or receipts shall be apportioned based upon actual results of operations through the end of the Funding and Consummation Date; (vii) all liabilities of the Company, if any, for the Taxes of any other person, pursuant to Code Section 1.1502-6 or other law, as a transferee or successor, by contract or otherwise; or (viii) all Transfer and other Taxes arising from the transactions contemplated by this AgreementStockholders; provided, however, (A) that in the case of any indemnity arising pursuant to clause (iii) such indemnity shall not inure to the benefit of QSI UniCapital, Newco or the Company Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or such omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided, in writing, corrected information to QSI counsel and to QSI UniCapital for inclusion in the final prospectus, and such information was not so included or properly delivered, and (B) that no Stockholder shall be liable for any indemnification obligation pursuant to this Section 10.1 to the extent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholderincluded.
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Unicapital Corp)
