General Indemnification Covenants. Subject to the last sentence --------------------------------- of this Section 6.1, Target and the Shareholders, jointly and severally, agree to indemnify and hold harmless Parent and Merger Sub from and against, and to reimburse Parent and Merger Sub with respect to, any and all loss, damage, liability, cost and expense, including reasonable attorneys' fees (collectively, "Losses"), incurred by Parent or Merger Sub by reason of or arising out of or in connection with (i) a breach of any representation or warranty contained in Sections 4.2, 7.3 or 7.10 or in any certificate delivered to Parent or Merger Sub pursuant to the provisions of this Agreement, (ii) the failure of Target or the Shareholders to perform any agreement required by this Agreement to be performed by them, unless such performance was or is prohibited by law or by court order, (iii) the alleged existence by any third party of any liability, obligation, lease, agreement, contract, other commitment or state of facts which if it existed would constitute a breach of any representation or warranty contained in said Sections 4.2, 7.3 or 7.10 or in any certificate delivered to Parent or Merger Sub pursuant to the provisions of this Agreement, or (iv) any actions, suits, proceedings or investigations involving Target arising out of any matter occurring or accruing prior to the Effective Time. Target and the Shareholders, jointly and severally, also agree (subject to the last sentence of this Section 6.1) to pay Parent or Merger Sub (as the case may be) interest on any amount paid by Parent or Merger Sub pursuant to this Section 6.1 from the date when such damage, liability, cost or expense was paid by Parent or Merger Sub or such loss was incurred by Parent or Merger Sub, at a rate per annum equal to the so-called "prime rate" as announced from time to time by Citibank N.A., but not higher than the maximum interest rate legally payable under the laws of the State of New York. Parent and Merger Sub agree to give prompt notice to the Shareholders of the alleged existence by any third party of any liability, obligation, lease, agreement, contract, other commitment or state of facts referred to in clause (iii) or clause (iv) above and the Shareholders shall have the right to participate in, and, with the consent of Parent and Merger Sub, which consent shall not be unreasonably withheld or delayed, to control the contest and defense of any such claim at their own cost and expense, including the cost and expense of attorneys' fees in connection with such contest and defense. Notwithstanding the foregoing, Target and the Shareholders shall not be liable for or with respect to such Losses (a) until the aggregate amount of all such Losses incurred by Parent and Merger Sub exceeds $100,000, at which point Target and the Shareholders shall be required to indemnify Parent and Merger Sub from any and all such Losses, including the first $100,000 of such Losses and (b) to the extent that the aggregate amount of all such Losses incurred by Parent and Merger Sub exceed the Aggregate Merger Consideration.
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General Indemnification Covenants. Subject to the last sentence --------------------------------- of this Section 6.1, Target and the Shareholders, jointly and severally, agree to indemnify and hold harmless Parent and Merger Sub from and against, and to reimburse Parent and Merger Sub with respect to, any and all loss, damage, liability, cost and expense, including reasonable attorneys' fees (collectively, "Losses"), incurred by Parent or Merger Sub by reason of or arising out of or in connection with (i) a breach of any representation or warranty contained in Sections 4.2, 7.3 or 7.10 or in any certificate delivered to Parent or Merger Sub pursuant to the provisions of this --------------------------------- Section 7, Shareholder as of the Closing Date, shall indemnify, defend, save and keep CMED and its affiliates (including CIVCO), and their respective officers, directors, successors and assigns (collectively, the "CMED Indemnitees"), harmless against and from all liability, demands, claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenses, including without limitation, reasonable attorneys' fees, court costs and other fees, disbursements and expenses (collectively "Damages"), sustained or incurred prior to the second anniversary of the Closing Date by any of the CMED Indemnitees as a result of, arising out of or by virtue of (i) any misrepresentations, breach of any warranty or representation, or non-fulfillment of any agreement or covenant on the part of CIVCO or Shareholder, whether contained in this Agreement, any Document or any exhibit or schedule hereto or thereto, or any written statement or certificate furnished or to be furnished to CMED pursuant hereto or in any closing document delivered by CIVCO or Shareholder to CMED in connection herewith; (ii) any Damages associated with curing unsatisfactory title or survey conditions of the failure of Target Real Property; or the Shareholders to perform any agreement required by this Agreement to be performed by them, unless such performance was or is prohibited by law or by court order, (iii) cleanup costs associated with the alleged existence Real Property or any claims, suits, actions, demands, order, assessments, fines or penalties or other administrative proceedings brought by any third party (a) owners of any liabilityreal property adjacent to the Real Property (or lessees of their real property) as a result of actual, obligationthreatened or claimed release or migration of contamination from the Real Property to adjacent properties; or (b) a local, leasestate or federal agency, agreementarising out of the occurrence of or release or threat of release of contamination at, contracton, other commitment under, or state from the Real Property as a result of facts conditions or operations at the Real Property on or before the Closing Date. Such obligations apply regardless of the presence of a Third Party Claim (as defined below). For purposes of determining the amount of Damages for which if it existed would constitute indemnification is provided hereunder (but not for the purpose whether a breach of a representation, warranty or covenant has occurred), each of the representations, warranties and covenants made by any representation or warranty contained party in said Sections 4.2, 7.3 or 7.10 this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents, shall be deemed to Parent have been made without the inclusion of limitations or Merger Sub pursuant qualifications as to the provisions of this Agreement, or (iv) any actions, suits, proceedings or investigations involving Target arising out of any matter occurring or accruing prior to the Effective Time. Target and the Shareholders, jointly and severally, also agree (subject to the last sentence of this Section 6.1) to pay Parent or Merger Sub (materiality such as the case may be) interest on any amount paid by Parent or Merger Sub pursuant to this Section 6.1 from the date when such damage, liability, cost or expense was paid by Parent or Merger Sub or such loss was incurred by Parent or Merger Sub, at a rate per annum equal to the so-called word "prime ratematerial," as announced from time to time by Citibank N.A., but not higher than the maximum interest rate legally payable under the laws of the State of New York. Parent and Merger Sub agree to give prompt notice to the Shareholders of the alleged existence by any third party of any liability, obligation, lease, agreement, contract, other commitment or state of facts referred to in clause (iii) or clause (iv) above and the Shareholders shall have the right to participate in, and, if with the consent of Parent and Merger Sub, which consent shall not be unreasonably withheld or delayed, to control the contest and defense of any such claim at their own cost and expense, including the cost and expense of attorneys' fees in connection with such contest and defense. Notwithstanding the foregoing, Target and the Shareholders shall not be liable for or with respect to such Losses (a) until the aggregate amount of all such Losses incurred by Parent and Merger Sub exceeds $100,000, at which point Target and the Shareholders shall be required to indemnify Parent and Merger Sub from any and all such Losses, including the first $100,000 inclusion of such Losses and (b) to limitation or qualification the extent that the aggregate amount of all such Losses incurred by Parent and Merger Sub exceed the Aggregate Merger Considerationrepresentation, warranty or covenant was breached.
Appears in 1 contract
General Indemnification Covenants. (a) Subject to the last sentence --------------------------------- provisions of this Section 6.1Sections 8.3 and 8.4, the Shareholders shall indemnify, save and keep Parent and its affiliates, successors and permitted assigns (including Target and the ShareholdersSurviving Corporation) (the "Parent Indemnitees"), jointly harmless against and severally, agree to indemnify and hold harmless Parent and Merger Sub from and against, and to reimburse Parent and Merger Sub with respect to, any and all loss, damage, liability, cost demands, claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenseexpenses, including reasonable attorneys' fees fees, disbursements and expenses (collectively, "LossesDamages"), sustained or incurred by any of the Parent or Merger Sub by reason of or Indemnitees as a result of, arising out of or in connection with (i) a by virtue of any misrepresentation, breach of any representation warranty or warranty representation, or non-fulfillment of any agreement or covenant on the part of Target or any of the Shareholders, whether contained in Sections 4.2, 7.3 this Agreement or 7.10 the Merger Agreement or any exhibit or schedule hereto or in any certificate closing document delivered by Target or any of the Shareholders to Parent or Merger Sub pursuant to the provisions of Subsidiary in connection herewith. Notwithstanding anything contained in this Article VIII or this Agreement, (ii) the failure no claim, suit, demand suit or cause of Target or action shall be brought against the Shareholders to perform nor shall any agreement required by this Agreement to be performed by them, unless such performance was or is prohibited by law or by court order, (iii) the alleged existence by any third party of any liability, obligation, lease, agreement, contract, other commitment or state of facts which if it existed would constitute a breach of any representation or warranty contained in said Sections 4.2, 7.3 or 7.10 or in any certificate delivered to Parent or Merger Sub pursuant to the provisions of this Agreement, or (iv) any actions, suits, proceedings or investigations involving Target arising out of any matter occurring or accruing prior to the Effective Time. Target and the Shareholders, jointly and severally, also agree (subject to the last sentence of this Section 6.1) to pay Parent or Merger Sub (as the case may be) interest on any amount paid by Parent or Merger Sub pursuant to this Section 6.1 from the date when such damage, liability, cost or expense was paid by Parent or Merger Sub or such loss was incurred by Parent or Merger Sub, at a rate per annum equal to the so-called "prime rate" as announced from time to time by Citibank N.A., but not higher than the maximum interest rate legally payable under the laws of the State of New York. Parent and Merger Sub agree to give prompt notice to the Shareholders of the alleged existence by any third party of any liability, obligation, lease, agreement, contract, other commitment or state of facts referred to in clause (iii) or clause (iv) above and the Shareholders shall have the right to participate in, and, with the consent of Parent and Merger Sub, which consent shall not be unreasonably withheld or delayed, to control the contest and defense of any such claim at their own cost and expense, including the cost and expense of attorneys' fees in connection with such contest and defense. Notwithstanding the foregoing, Target and the Shareholders shall not Shareholder be liable for any Damages under this Article VIII or with respect to such Losses (a) this Agreement unless and until the aggregate amount of all such Losses incurred by Damages under this Article VIII or this Agreement exceeds fifty thousand dollars ($50,000), in which event Parent and Merger Sub exceeds $100,000, at which point Target and the Shareholders shall be required entitled to indemnify Parent and Merger Sub from any and indemnification for all such Losses, including Damages in excess of $50,000 in the first $100,000 of such Losses and aggregate. (b) Parent shall indemnify, save and keep the Shareholders ("Target Indemnitees") harmless against and from all liability, demands, claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenses, including reasonable attorneys fees, disbursements and expenses (collectively, "Damages") sustained or incurred by any of the Target Indemnitees as a result of any misrepresentations, breach of any warranty or representation or non-fulfillment of any agreement or covenant on the part of Parent, whether contained in this Agreement or the Merger Agreement or any exhibit or schedule hereto in any closing document delivered by Parent to any of the extent that Shareholders in connection herewith. Notwithstanding anything contained in this Article VIII or this Agreement, no claim, suit, demand suit or cause of action shall be brought against Parent nor shall Parent be liable for any Damages under this Article VIII or this Agreement unless and until the aggregate amount of Damages under this Article VIII or this Agreement exceeds fifty thousand dollars ($50,000) in the aggregate, in which event Shareholders shall be entitled to indemnification for all such Losses incurred by Parent and Merger Sub exceed Damages in excess of $50,000 in the Aggregate Merger Considerationaggregate (excluding Damages attributable to any violation of Section 4.1, Section 6.7 or Section 6.8).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (First Cash Financial Services Inc)
General Indemnification Covenants. (a) Subject to the last sentence --------------------------------- provisions of this Section 6.1Sections 8.3, Shareholders individually, on a several and not joint basis to the extent of their respective ownership of Target Common Stock at Closing and which shall not exceed the total value of the Merger Consideration received by each Shareholder individually, shall indemnify, save and keep Parent and its affiliates, successors and permitted assigns (including Target and the ShareholdersSurviving Corporation) (the "Parent Indemnitees"), jointly harmless against and severally, agree to indemnify and hold harmless Parent and Merger Sub from and against, and to reimburse Parent and Merger Sub with respect to, any and all loss, damage, liability, cost demands, claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenseexpenses, including reasonable attorneys' fees fees, disbursements and expenses (collectively, "LossesDamages"), sustained or incurred by any of the Parent or Merger Sub by reason of or Indemnitees as a result of, arising out of or in connection with (i) a by virtue of any misrepresentation, breach of any representation warranty or warranty representation, or non-fulfillment of any agreement or covenant on the part of Target or Shareholders, whether contained in Sections 4.2, 7.3 this Agreement or 7.10 any exhibit or schedule hereto or any written statement furnished or to be furnished to Parent or Sub pursuant hereto or in any certificate closing document delivered by Target or Shareholders to Parent or Merger Sub pursuant to in connection herewith.
(b) Parent shall indemnify, save and keep each of the provisions Shareholders, their successors and permitted assigns (the "Shareholder Indemnitees"), harmless against and from all liability, demands, claims, actions or causes of this Agreementaction, assessments, losses, fines, penalties, costs, damages, and expenses including reasonable attorneys fees, disbursements and expenses (ii) the failure collectively, "Damages"), sustained or incurred by any Shareholder Indemnitee as a result of, arising out of Target or the Shareholders to perform any agreement required by this Agreement to be performed by them, unless such performance was or is prohibited by law or by court order, (iii) the alleged existence by any third party virtue of any liabilitymisrepresentation, obligation, lease, agreement, contract, other commitment or state of facts which if it existed would constitute a breach of any warranty or representation or warranty non-fulfillment of any agreement or covenant on the part of Parent or Sub, whether contained in said Sections 4.2this Agreement or any exhibit or schedule, 7.3 thereto or 7.10 any written statement furnished or to be furnished to Target or Shareholders pursuant hereto or in any certificate closing document delivered to Parent or Merger Sub pursuant to the provisions of this Agreement, or (iv) any actions, suits, proceedings or investigations involving Target arising out of any matter occurring or accruing prior to the Effective Time. Target and the Shareholders, jointly and severally, also agree (subject to the last sentence of this Section 6.1) to pay Parent or Merger Sub (as the case may be) interest on any amount paid by Parent or Merger Sub pursuant to this Section 6.1 from the date when such damage, liability, cost Target or expense was paid by Parent or Merger Sub or such loss was incurred by Parent or Merger Sub, at a rate per annum equal to the so-called "prime rate" as announced from time to time by Citibank N.A., but not higher than the maximum interest rate legally payable under the laws of the State of New York. Parent and Merger Sub agree to give prompt notice to the Shareholders of the alleged existence by any third party of any liability, obligation, lease, agreement, contract, other commitment or state of facts referred to in clause (iii) or clause (iv) above and the Shareholders shall have the right to participate in, and, with the consent of Parent and Merger Sub, which consent shall not be unreasonably withheld or delayed, to control the contest and defense of any such claim at their own cost and expense, including the cost and expense of attorneys' fees in connection with such contest and defense. Notwithstanding the foregoing, Target and the Shareholders shall not be liable for or with respect to such Losses (a) until the aggregate amount of all such Losses incurred by Parent and Merger Sub exceeds $100,000, at which point Target and the Shareholders shall be required to indemnify Parent and Merger Sub from any and all such Losses, including the first $100,000 of such Losses and (b) to the extent that the aggregate amount of all such Losses incurred by Parent and Merger Sub exceed the Aggregate Merger Considerationherewith.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Halifax Corp)
General Indemnification Covenants. Subject to the last sentence --------------------------------- provisions of this Section 6.1Sections 8.3 and 8.4, Target the Shareholders shall indemnify, save and keep Purchaser, Company and their respective affiliates, successors and permitted assigns (the Shareholders"Purchaser Indemnitees"), jointly harmless against and severally, agree to indemnify and hold harmless Parent and Merger Sub from and against, and to reimburse Parent and Merger Sub with respect to, any and all loss, damage, liability, cost demands, claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenseexpenses, including reasonable attorneys' fees fees, disbursements and expenses (collectively, "LossesDamages"), sustained or incurred by Parent or Merger Sub by reason any of or the Purchaser Indemnitees as a result of, arising out of or in connection with (i) a by virtue of any misrepresentation, breach of any representation warranty or warranty representation, or non-fulfillment of any agreement or covenant on the part of Company or any of the Shareholders, whether contained in Sections 4.2, 7.3 this Agreement or 7.10 any exhibit or schedule hereto or in any certificate closing document delivered by Company or any of the Shareholders to Parent or Merger Sub pursuant Purchaser in connection herewith. Subject to the provisions of this AgreementArticle VIII, (ii) Purchaser shall be entitled to offset the failure Notes for any Damages incurred by Purchaser; provided, however, that Damages incurred solely by breach by a specific Shareholder may only be offset against such Shareholder's Note. In no event shall a Shareholder be liable for the violation of Target section 6.3 by another Shareholder. Notwithstanding anything set forth in this Article VIII or the Shareholders to perform any agreement required by this Agreement to be performed by them, unless such performance was or is prohibited by law or by court order, (iii) the alleged existence by any third party of any liability, obligation, lease, agreement, contract, other commitment or state of facts which if it existed would constitute a breach of any representation or warranty contained in said Sections 4.2, 7.3 or 7.10 or in any certificate delivered to Parent or Merger Sub pursuant to the provisions of this Agreement, no claim, demand, suit or cause of action shall be brought against Shareholders nor shall any Shareholder be liable for any Damages under this Article VIII or Agreement unless and until the aggregate amount of Damages under this Article VIII or Agreement exceeds one hundred fifty thousand dollars (iv$150,000), in which event Purchaser shall be entitled to indemnification from the Shareholders for any and all Damages in excess of $150,000, with the aggregate liability with respect to any one Shareholder limited to six million dollars ($6,000,000) any actions, suits, proceedings or investigations involving Target arising out times the percentage ownership interest of any matter occurring or accruing such Shareholder in the Company immediately prior to the Effective Time. Target and the Shareholders, jointly and severally, also agree (subject to the last sentence of this Section 6.1) to pay Parent or Merger Sub (as the case may be) interest on any amount paid by Parent or Merger Sub pursuant to this Section 6.1 from the date when such damage, liability, cost or expense was paid by Parent or Merger Sub or such loss was incurred by Parent or Merger Sub, at a rate per annum equal to the so-called "prime rate" as announced from time to time by Citibank N.A., but not higher than the maximum interest rate legally payable under the laws of the State of New York. Parent and Merger Sub agree to give prompt notice to the Shareholders of the alleged existence by any third party of any liability, obligation, lease, agreement, contract, other commitment or state of facts referred to in clause (iii) or clause (iv) above and the Shareholders shall have the right to participate in, and, with the consent of Parent and Merger Sub, which consent shall not be unreasonably withheld or delayed, to control the contest and defense of any such claim at their own cost and expense, including the cost and expense of attorneys' fees in connection with such contest and defenseClosing Date. Notwithstanding the foregoing, Target and the aggregate liability of the Shareholders under this Article VIII or this Agreement for all Damages arising out of, or related to or involving fraud or willful misrepresentation or the actual amount (determined in accordance with GAAP and prepared on the proforma basis described in Section 5.3(e)) of the proforma assets, proforma net income, proforma net income before income taxes or proforma equity of Miraglia, Inc. for the periods and xxxxx xxdicated in Section 5.3 (e) being less than ten percent (10%) of the amount of such proforma assets, proforma net income, proforma net income before income taxes or proforma equity of Miraglia, Inc. reflected on the proxxxxx xxnancial statements of Miraglia, Inc. as of such dates and xxx xxxh periods attached as Exhibit M shall not exceed the purchase price set forth in Article II, which in any event shall not be liable for or deemed to exceed ten million dollars ($10,000,000) with the aggregate liability with respect to any one Shareholder limited to the total consideration received by such Losses Shareholder. Damages shall be determined after taking into account (a) until the aggregate amount of all such Losses actual tax benefit realized in the form of a refund or a reduction in taxes otherwise payable or actual tax detriment inuring to or incurred by Parent Purchaser arising from the facts and Merger Sub exceeds $100,000, at which point Target and the Shareholders shall be required circumstances giving rise to indemnify Parent and Merger Sub from any and all such Losses, including the first $100,000 of Damages after such Losses benefit is realized and (b) to the extent that the aggregate amount any insurance proceeds received by Purchaser on account of all such Losses incurred by Parent and Merger Sub exceed the Aggregate Merger ConsiderationDamages after such proceeds are realized.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (First Cash Inc)
