General Indemnification Obligations. 3.1.1. The Seller shall indemnify and defend the Buyer and the Parent and hold the Buyer and the Parent harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) arising out of, resulting from, relating to, in the nature of or caused by any misrepresentation or breach of any representation, warranty, covenant or agreement made by the Seller in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by the Seller to Buyer pursuant to this Agreement or in connection with the transactions contemplated by this Agreement. 3.1.2. The Buyer and the Parent shall indemnify and defend the Seller and hold the Seller harmless from and against any and all Adverse Consequences arising out of, resulting from, relating to, in the nature of or caused by any misrepresentation or breach of any representation, warranty, covenant or agreement made by the Buyer or the Parent in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by Buyer to the Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remedies.

Appears in 3 contracts

Samples: Asset Purchase Agreement (Janus Resources, Inc.), Asset Purchase Agreement (Janus Resources, Inc.), Asset Purchase Agreement (Janus Resources, Inc.)

General Indemnification Obligations. ~~3.1.1. The Seller~~ (a) Subject to the limitations and other provisions of this Article IX, from and after the Applicable Closing Date, Crestwood shall indemnify and ~~defend the Buyer~~ hold harmless each of CEGPS, its Affiliates and ~~the Parent~~ its and ~~hold the Buyer~~ their equityholders, officers, directors, trustees, employees, managers, advisors, representatives or agents, and ~~the Parent harmless from~~ each of their respective successors and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses permitted assigns (collectively, the “~~Adverse Consequences~~CEGPS Indemnified Parties”) arising out of, resulting from, relating to, in the nature of or caused by any misrepresentation or breach of any representation, warranty, covenant or agreement made by the Seller in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by the Seller to Buyer pursuant to this Agreement or in connection with the transactions contemplated by this Agreement. 3.1.2. The Buyer and the Parent shall indemnify and defend the Seller and hold the Seller harmless from and against any and all Adverse Consequences arising out of, resulting from, ~~relating to, in the nature of~~ or caused by any (i) misrepresentation or breach of any representation or warranty made by Crestwood in this Agreement or in any certificate furnished or delivered by Crestwood to CEGPS pursuant to this Agreement, (ii) breach of any covenant or agreement of Crestwood contained in this Agreement, (iii) Crestwood Indemnified Tax or (iv) Transaction Expenses to be paid by Newco, Newco Service Company or any of the Contributed Entities to the extent not reflected in the calculation of the Initial Post-Closing Adjustment or the Second Post-Closing Adjustment; provided, however, for clarity, that for purposes of (i) and (ii) above, Crestwood shall have no indemnification obligation under this Article IX in respect of matters relating to Crestwood Pipeline East or its assets unless the Second Closing occurs. (b) Subject to the limitations and other provisions of this Article IX, from and after the Applicable Closing, CEGPS shall indemnify and hold harmless each of Crestwood, its Affiliates and its and their equityholders, officers, directors, trustees, employees, managers, advisors, representatives or agents, and each of their respective successors and permitted assigns from and against any and all Adverse Consequences and incurred by Crestwood arising out of, resulting from, or caused by any of the following: (i) any misrepresentation or breach of any ~~representation, warranty, covenant~~ representation or ~~agreement~~ warranty made by ~~the Buyer or the Parent~~ CEGPS in this Agreement or in any ~~statement, certificate, instrument or other document or item furnished or delivered or to be~~ certificate furnished or delivered by ~~Buyer~~ CEGPS to ~~the Seller~~ Crestwood pursuant to this Agreement or (ii) any breach of any covenant or agreement of CEGPS contained in ~~connection with the transactions contemplated by~~ this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shallTHE INDEMNITIES IN THIS ARTICLE IX ARE EXPRESSLY INTENDED TO APPLY NOTWITHSTANDING ANY NEGLIGENCE (WHETHER SOLE, ~~as soon as is reasonably practicable and commercially feasible~~CONCURRENT, ~~make application for such insurance procedures referred to in clause (a~~ACTIVE OR PASSIVE) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remediesOR OTHER FAULT OR STRICT LIABILITY ON THE PART OF THE INDEMNIFIED PARTY OR ITS AFFILIATES EXCEPTING ONLY INJURIES ACTUALLY RESULTING ON THE ACCOUNT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED PARTY OR ITS AFFILIATES.

Appears in 3 contracts

Samples: Contribution Agreement (Consolidated Edison Inc), Contribution Agreement (Crestwood Midstream Partners LP), Contribution Agreement

General Indemnification Obligations. ~~3.1.1. The~~ (a) Seller shall indemnify ~~and defend the~~ Buyer and ~~the Parent~~ its directors, officers and other Affiliates (including Parent) and hold ~~the~~ Buyer and ~~the Parent~~ such other parties harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by the Seller Parties in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished ~~or delivered~~ to Buyer by any of the Seller ~~to Buyer~~ Parties pursuant to this Agreement (including the Transaction Documents); (B) subject to Section 7.3.2, any Excluded Assets or ~~in connection with~~ Retained Liabilities; and (C) subject to Section 7.3.2, the ~~transactions contemplated by this Agreement~~ownership, operation or use of any of the businesses or assets of the Seller Parties or their Affiliates (other than the Business and the Acquired Assets) whether before, on or after the Closing Date. ~~3.1.2. The~~ (b) Buyer and ~~the~~ Parent shall indemnify Seller, and ~~defend the~~ their directors, officers and other Affiliates (including Citizens) and hold Seller and ~~hold the Seller~~ such other parties harmless from and against any and all ~~Adverse Consequences~~ Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by ~~the~~ Parent or Buyer ~~or the Parent~~ in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished to Seller by Parent or ~~delivered by~~ Buyer ~~to the Seller~~ pursuant to this Agreement (including the Transaction Documents), (B) any Assumed Liabilities after the Closing Date, (C) the ownership, operation or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) use of the ~~assertion of any claim,~~ Business or the ~~commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable~~ Acquired Assets after the ~~party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section~~ Closing Date (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent ~~that the defense of such action is prejudiced by such delay~~ resulting from Retained Liabilities or ~~failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver~~ to the ~~Indemnified Party a written response~~ extent resulting from breaches by the Seller Parties of representations, warranties, covenants or agreements hereunder or in ~~which~~ the ~~Indemnifying Party shall:~~ other Transaction Documents); and (ID) ~~agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied~~ any claim by a ~~payment by~~ Transferred Employee or a Former Employee referred to on Schedule 5.12 or the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress Beneficiary of any such ~~defense~~employee or former employee for post-retirement health care or life insurance benefits "incurred" (within the meaning of Section 5.9.4) after the Closing. (c) For purposes of this Agreement, ~~compromise~~ "Damages" shall mean any and all losses, liabilities, obligations, damages (including any governmental penalty or ~~settlement. The Indemnifying Party shall be liable for any settlement~~ punitive damages assessed or asserted against the party seeking indemnification and including costs of ~~any action effected pursuant to~~ investigation, clean-up and ~~in accordance with this Section for any final judgment (subject to any right of appeal~~remediation), deficiencies, interest, costs and expenses and any claims, actions, demands, causes of action, judgments, costs and reasonable expenses (including reasonable attorneys' fees and all other reasonable expenses incurred in investigating, preparing or defending any litigation or proceeding, commenced or threatened, incident to the ~~Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason~~ successful enforcement of ~~such settlement or judgment. 3.1.4~~this Agreement). For purposes of this ~~Section~~Section 7.4, ~~including~~ the determination of ~~Claims by Buyer~~whether any breach of any representation, ~~any~~ covenant or agreement has occurred, and ~~all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes~~ the calculation of ~~determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating~~ the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received Damages incurred by the Indemnified Party ~~with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered~~ arising out of or resulting from any ~~third parties, by way~~ breach of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any a representation~~, warranty~~, covenant or agreement ~~with respect~~ by any party hereto, the references to ~~the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set~~ a "Material Adverse Effect" or ~~set-off any payment due pursuant to this Agreement against any~~ materiality (or other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section correlative terms) shall be ~~the exclusive means of recovery by either the Buyer~~disregarded, ~~the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any~~ provided that no such breach ~~or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and~~ shall be found to have occurred due to facts or circumstances arising from an occurrence or condition described in ~~lieu of any other common law or statutory rights or remedies.~~Section 1.1.61

Appears in 2 contracts

Samples: Asset Purchase Agreement (Citizens Utilities Co), Merger Agreement (American Water Works Co Inc)

General Indemnification Obligations. ~~3.1.1. The~~ (a) Seller shall indemnify ~~and defend the~~ Buyer and ~~the Parent~~ its directors, officers and other Affiliates (including Parent) and hold ~~the~~ Buyer and ~~the Parent~~ such other parties harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by the Seller Parties in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished ~~or delivered~~ to Buyer by any of the Seller ~~to Buyer~~ Parties pursuant to this Agreement (including the Transaction Documents); (B) subject to Section 7.3.2, any Excluded Assets or Retained Liabilities; (C) subject to Section 7.3.2, the ownership, operation or use of any of the businesses or assets of the Seller Parties or their Affiliates (other than the Business and the Acquired Assets) whether before, on or after the Closing Date; and (D) an event of taxability, as such term is customarily used in ~~connection with~~ municipal securities transactions, relating to the ~~transactions contemplated by~~ Retained IDRB Indebtedness and arising from the sale of the Acquired Assets pursuant to this Agreement. ~~3.1.2. The~~ (b) Buyer and ~~the~~ Parent shall indemnify Seller, and ~~defend the~~ their directors, officers and other Affiliates (including Citizens) and hold Seller and ~~hold the Seller~~ such other parties harmless from and against any and all ~~Adverse Consequences~~ Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by ~~the~~ Parent or Buyer ~~or the Parent~~ in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished to Seller by Parent or ~~delivered by~~ Buyer ~~to the Seller~~ pursuant to this Agreement (including the Transaction Documents), including the Buyer's IDRB Obligations; (B) any Assumed Liabilities after the Closing Date, including the Assumed Indebtedness; (C) the ownership, operation or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) use of the ~~assertion of any claim,~~ Business or the ~~commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable~~ Acquired Assets after the ~~party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section~~ Closing Date (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent ~~that the defense of such action is prejudiced by such delay~~ resulting from Retained Liabilities or ~~failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver~~ to the ~~Indemnified Party a written response~~ extent resulting from breaches by the Seller Parties of representations, warranties, covenants or agreements hereunder or in ~~which~~ the ~~Indemnifying Party shall:~~ other Transaction Documents); (ID) ~~agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied~~ any claim by a ~~payment~~ Transferred Employee or a Former Employee referred to on Schedule 5.12 or the Beneficiary of any such employee or former employee for post-retirement health care or life insurance benefits "incurred" (within the meaning of Section 5.9.4) after the Closing; (E) any violation by ~~the Indemnifying Party to the Indemnified Party~~ Parent or Buyer, or any assignee, lessee or successor of ~~the damages claimed, by check~~ Parent or ~~by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all~~Buyer, of the ~~damages claimed~~ covenants and ~~a reasonable explanation~~ agreements as provided by Section 5.16.3 hereof and Section 5 of Exhibit D hereto; and (F) an event of taxability, as such term is customarily used in municipal securities transactions, relating to the Assumed Indebtedness and arising from the sale of the ~~basis therefor~~ Acquired Assets pursuant to this Agreement and/or the assignment or assumption of the Assumed Indebtedness. (c) For purposes of this Agreement, "Damages" shall mean any and all losses, liabilities, obligations, damages (including any governmental penalty or punitive damages assessed or asserted against the ~~“Agreed Amount”)~~ party seeking indemnification and including costs of investigation, clean-up and remediation), deficiencies, interest, costs and expenses and any claims, actions, demands, causes of action, judgments, costs and reasonable expenses (including reasonable attorneys' fees and all other reasonable expenses incurred in ~~which case such response shall be accompanied by a payment by the Indemnifying Party~~ investigating, preparing or defending any litigation or proceeding, commenced or threatened, incident to the ~~Indemnified Party~~ successful enforcement of ~~the Agreed Amount, by check or by wire transfer~~this Agreement), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this ~~Section~~Section 7.4, ~~including~~ the determination of ~~Claims by Buyer,~~ whether any ~~and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes~~ breach of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation~~, warranty~~, covenant or agreement ~~with respect to~~ has occurred, and the ~~matters contained herein. Provided that the Buyer has complied with all~~ calculation of the ~~provisions~~ amount of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remedies.Damages Pennsylvania

Appears in 2 contracts

Samples: Merger Agreement (American Water Works Co Inc), Asset Purchase Agreement (Citizens Utilities Co)

General Indemnification Obligations. ~~3.1.1. The~~ (a) Seller shall indemnify ~~and defend the~~ Buyer and ~~the Parent~~ its directors, officers and other Affiliates (including Parent) and hold ~~the~~ Buyer and ~~the Parent~~ such other parties harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by the Seller Parties in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished ~~or delivered~~ to Buyer by any of the Seller ~~to Buyer~~ Parties pursuant to this Agreement (including the Transaction Documents); (B) subject to Section 7.3.2, any Excluded Assets or Retained Liabilities; (C) subject to Section 7.3.2, the ownership, operation or use of any of the businesses or assets of the Seller Parties or their Affiliates (other than the Business and the Acquired Assets) whether before, on or after the Closing Date; and (D) an event of taxability, as such term is customarily used in ~~connection with~~ municipal securities transactions, relating to the ~~transactions contemplated by~~ Retained IDRB Indebtedness and arising from the sale of the Acquired Assets pursuant to this Agreement. ~~3.1.2. The~~ (b) Buyer and ~~the~~ Parent shall indemnify Seller, and ~~defend the~~ their directors, officers and other Affiliates (including Citizens) and hold Seller and ~~hold the Seller~~ such other parties harmless from and against any and all ~~Adverse Consequences~~ Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by ~~the~~ Parent or Buyer ~~or the Parent~~ in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished to Seller by Parent or ~~delivered by~~ Buyer ~~to the Seller~~ pursuant to this Agreement (including the Transaction Documents), including the Buyer's IDRB Obligations; (B) any Assumed Liabilities after the Closing Date; (C) the ownership, operation or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) use of the ~~assertion of any claim,~~ Business or the ~~commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable~~ Acquired Assets after the ~~party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section~~ Closing Date (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent ~~that the defense of such action is prejudiced by such delay~~ resulting from Retained Liabilities or ~~failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver~~ to the ~~Indemnified Party a written response~~ extent resulting from breaches by the Seller Parties of representations, warranties, covenants or agreements hereunder or in ~~which~~ the ~~Indemnifying Party shall:~~ other Transaction Documents); (ID) ~~agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied~~ any claim by a ~~payment~~ Transferred Employee or a Former Employee referred to on Schedule 5.12 or the Beneficiary of any such employee or former employee for post-retirement health care or life insurance benefits "incurred" (within the meaning of Section 5.9.4) after the Closing; and (E) any violation by ~~the Indemnifying Party to the Indemnified Party~~ Parent or Buyer, or any assignee, lessee or successor of ~~the damages claimed, by check~~ Parent or ~~by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all~~Buyer, of the covenants and agreements as provided by Section 5 of Exhibit D hereto. (c) For purposes of this Agreement, "Damages" shall mean any and all losses, liabilities, obligations, damages ~~claimed~~ (including any governmental penalty or punitive damages assessed or asserted against the party seeking indemnification and a including costs of investigation, clean-up and remediation), deficiencies, interest, costs and expenses and any claims, actions, demands, causes of action, judgments, costs and reasonable ~~explanation of the basis therefor~~ expenses (~~the “Agreed Amount”) (~~including reasonable attorneys' fees and all other reasonable expenses incurred in ~~which case such response shall be accompanied by a payment by the Indemnifying Party~~ investigating, preparing or defending any litigation or proceeding, commenced or threatened, incident to the ~~Indemnified Party~~ successful enforcement of ~~the Agreed Amount, by check or by wire transfer~~this Agreement), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this ~~Section~~Section 7.4, ~~including~~ the determination of ~~Claims by Buyer~~whether any breach of any representation, ~~any~~ covenant or agreement has occurred, and ~~all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes~~ the calculation of ~~determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating~~ the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received Damages incurred by the Indemnified Party ~~with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered~~ arising out of or resulting from any ~~third parties, by way~~ breach of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any a representation~~, warranty~~, covenant or agreement ~~with respect~~ by any party hereto, the references to ~~the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set~~ a "Material Adverse Effect" or ~~set-off any payment due pursuant to this Agreement against any~~ materiality (or other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section correlative terms) shall be ~~the exclusive means of recovery by either the Buyer~~disregarded, ~~the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any~~ provided that no such breach ~~or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and~~ shall be found to have occurred due to facts or circumstances arising from an occurrence or condition described in ~~lieu of any other common law or statutory rights or remedies.~~Section 1.1.61

Appears in 2 contracts

Samples: Merger Agreement (American Water Works Co Inc), Asset Purchase Agreement (Citizens Utilities Co)

General Indemnification Obligations. ~~3.1.1. The~~ (a) Subject to the terms and conditions set forth in this Agreement, Seller shall indemnify and defend Purchaser and its employees, officers, directors, shareholders, agents, representatives and Affiliates (individually a “Purchaser Indemnified Party” and collectively, the ~~Buyer and the Parent~~ “Purchaser Indemnified Parties”) and hold the Buyer and the Parent harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) arising out of, resulting from, relating to, in the nature of or caused by any misrepresentation or breach of any representation, warranty, covenant or agreement made by the Seller in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by the Seller to Buyer pursuant to this Agreement or in connection with the transactions contemplated by this Agreement. 3.1.2. The Buyer and the Parent shall indemnify and defend the Seller and hold the Seller Purchaser Indemnified Parties harmless from and against any and all Adverse Consequences arising out of, resulting from, relating to, in the nature of or caused by: (i) Any misrepresentation or breach of any representation or warranty made by Seller in this Agreement; (ii) Breach of any covenant or agreement made by Seller in this Agreement; (iii) The Excluded Assets; or (iv) The Retained Liabilities. (b) Purchaser shall indemnify and defend Seller and its employees, officers, directors, shareholders, agents, representatives and Affiliates (individually a “Seller Indemnified Party” and collectively, the “Seller Indemnified Parties”) and hold the Seller Indemnified Parties harmless from and against any and all Adverse Consequences arising out of, resulting from, relating to, in the nature of or caused by: (i) Any misrepresentation or breach of any representation, warranty, covenant or agreement made by ~~the Buyer or the Parent~~ Purchaser in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by Buyer to the Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement.; 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) ~~a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and~~ The Assumed Liabilities; or (iii) ~~a demand for payment in~~ Liabilities arising on or after the ~~amount of such damages; provided, however that any delay~~ Closing Date relating to Purchaser’s ownership or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all operation of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages Business or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remediesPurchased Assets.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Nugen Holdings, Inc.), Asset Purchase Agreement (InovaChem, Inc.)

General Indemnification Obligations. ~~3.1.1. The~~ (i) Seller shall indemnify ~~and defend the~~ each of Buyer and ~~the~~ Parent and their respective directors, officers and other Affiliates (the "Buyer Indemnified Parties") and hold ~~the~~ Buyer and ~~the~~ Parent and their respective directors, officers and other Affiliates harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages arising out of or resulting from (A) any breach of, ~~resulting from~~or inaccuracy in, ~~relating to, in the nature of~~ any representation or ~~caused by any misrepresentation or breach of any representation, warranty, covenant or agreement~~ warranty made by ~~the~~ Seller in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished ~~or delivered by the Seller~~ to Buyer or Parent by Seller or its Affiliates pursuant to this Agreement (including any representation or warranty of Seller set forth in the second sentence of Section 4.2(b)); (B) any breach of any covenant or agreement of Seller contained in this Agreement; (C) any violation of or liability arising under any bulk sales law in connection with the ~~transactions contemplated by this Agreement~~transfer of the Acquired Assets; and (D) any Retained Liabilities. ~~3.1.2. The~~ (ii) Buyer and Parent (the ~~Parent shall~~ "Seller Indemnifying Parties" and, together with Seller, the "Indemnifying Parties") shall, on a joint and several basis, indemnify ~~and defend the~~ Seller and its respective directors, officers (and solely in the case of clause (E) below, Seller's controller) and other Affiliates (the "Seller Indemnified Parties" and, together with Buyer Indemnified Parties, the "Indemnified Parties") and hold Seller and its directors, officers (and solely in the ~~Seller~~ case of clause (E) below, Seller's controller) and other Affiliates harmless from and against any and all ~~Adverse Consequences~~ Damages arising out of or resulting from (A) any breach of, ~~resulting from~~or inaccuracy in, ~~relating to, in the nature of~~ any representation or ~~caused by any misrepresentation or breach of any representation, warranty, covenant or agreement~~ warranty made by ~~the~~ Buyer or ~~the~~ Parent in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished ~~or delivered~~ to Seller by Buyer ~~to the Seller~~ or Parent pursuant to this ~~Agreement~~ Agreement; (B) any breach of a covenant or agreement of Buyer or Parent contained in ~~connection with the transactions contemplated by~~ this Agreement~~. 3.1.3. A party seeking indemnification pursuant to this Section~~ ; (~~an “~~C) any Acquired Liabilities; (D) Post-Closing Buyer Environmental Liabilities; and (E) any claim by Parent's Accountants against a Seller Indemnified ~~Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”)~~ Party for a breach of ~~the assertion of any claim~~or misrepresentation in a Representation Letter, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains unless (i) a ~~description and~~ representation in the ~~amount~~ Representation Letter was made with actual knowledge that it contained an untrue statement of ~~any damages incurred by~~ a material fact or omitted to state a material fact necessary to make the ~~Indemnified Party,~~ statements or facts contained therein not misleading or (ii) such claim results from a ~~statement that~~ breach of, or inaccuracy in, any representation or warranty of Seller in the ~~Indemnified Party is entitled to indemnification under this~~ second sentence of Section ~~and a reasonable explanation of the basis therefor, and~~ 4.2(b). (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this ~~Section~~Agreement, ~~including the determination of Claims by Buyer,~~ "Damages" shall mean any and all ~~references to “material” limitations~~ losses, liabilities, obligations, damages (including any governmental penalty or ~~limitations as to “knowledge”~~ punitive damages and including costs of investigation, clean-up and remediation), deficiencies, interest, costs and expenses and any claims, actions, demands, causes of action, judgments, costs and expenses (including attorneys' fees and all other reasonable expenses incurred in ~~Seller’s representations and warranties~~investigating, ~~while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified~~preparing or defending any litigation or proceeding, ~~shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless~~ commenced or ~~until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject~~ threatened incident to the ~~Indemnity Cap) only for the monetary amounts~~ successful enforcement of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”this Agreement). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remedies.

Appears in 1 contract

Samples: Asset Purchase Agreement (Dingley Press, Inc.)

General Indemnification Obligations. ~~3.1.1. The Seller~~ (a) Effective as of the Closing, subject to the terms of this Agreement, Newco shall indemnify the TAP Indemnified Parties against and ~~defend~~ shall hold each of the ~~Buyer and the Parent and hold the Buyer and the Parent~~ TAP Indemnified Parties harmless ~~from and against~~ from, any and all ~~actions~~Damages incurred or suffered by the TAP Indemnified Parties, ~~suits~~or any of them, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) to the extent arising out of: (i) any breach by Newco of, ~~resulting~~ or any failure by Newco to perform or comply with, any covenant or agreement contained in this Agreement, in each case from and after the Closing; (ii) any Assumed Liability, other than any Pre-Closing TAP Matter; (iii) any claim or cause of action of any third party or any notice, directive, order, demand, request or other communication from any Governmental Authority to the extent arising out of the conduct or operations of Newco from and after the Closing; or (iv) to the extent provided in Section 12.03, any Pre-Closing TAP Matter other than any Pre-Closing TAP Matter as to which any Transaction Document other than this Agreement provides for indemnification of any TAP Indemnified Party. (b) Effective as of the Closing, subject to the terms of this Agreement, TAP shall indemnify the Newco Indemnified Parties against and shall hold each of the Newco Indemnified Parties harmless from, ~~relating to~~any and all Damages incurred or suffered by the Newco Indemnified Parties, or any of them, to the extent arising out of: (i) any breach by TAP of, or any failure by TAP to perform or comply with, any covenant or agreement of TAP contained in this Agreement, in each case from and after the ~~nature~~ Closing; (ii) any Retained Liability, other than any Pre-Closing TAP Matter; (iii) any claim or cause of action of any third party or ~~caused~~ any notice, directive, order, demand, request or other communication from any Governmental Authority to the extent arising out of the conduct or operations of TAP from and after the Closing; or (iv) to the extent provided in Section 12.04, any Pre-Closing TAP Matter other than any Pre-Closing TAP Matter as to which any Transaction Document other than this Agreement provides for indemnification of any Newco Indemnified Party. (c) Effective as of the Closing, subject to the terms of this Agreement, Abbott shall indemnify the TAH Indemnified Parties against and shall hold each of the TAH Indemnified Parties harmless from, any and all Damages incurred or suffered by the TAH Indemnified Parties, or any ~~misrepresentation~~ of them, to the extent arising out of: (i) any inaccuracy or breach of any ~~representation~~representation or warranty contained in Article 5; or (ii) any breach by Abbott of, ~~warranty~~or any failure by Abbott to perform or comply with, any covenant or agreement ~~made by the Seller~~ of Abbott contained in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by the Seller to Buyer pursuant to this Agreement or in connection with the transactions contemplated by this Agreement. ~~3.1.2. The Buyer and~~ (d) Effective as of the ~~Parent~~ Closing, subject to the terms of this Agreement, TAH shall indemnify the Abbott Indemnified Parties against and ~~defend~~ shall hold each of the ~~Seller and hold the Seller~~ Abbott Indemnified Parties harmless ~~from and against~~ from, any and all ~~Adverse Consequences~~ Damages incurred or suffered by the Abbott Indemnified Parties, or any of them, to the extent arising out of~~, resulting from, relating to, in the nature of or caused by~~ : (i) any ~~misrepresentation~~ inaccuracy or breach of any ~~representation, warranty, covenant~~ representation or ~~agreement made by the Buyer or the Parent~~ warranty contained in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by Buyer to the Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), Article 6 or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimedwithout giving effect, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a there has been any such inaccuracy or breach, to any of the TAP Disclosure Schedules or any qualifications as to Knowledge or materiality) Section 4.05; or (ii) any breach ~~has occurred~~ by TAH or Takeda of, or failure by TAH or Takeda to perform or comply with, any covenant or agreement contained in this Agreement. (e) Notwithstanding anything to the contrary herein, indemnification under this Article 12 with respect to any matter giving rise to ~~a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified,~~ an inaccuracy or breach of any representation or warranty contained in Article 5 shall be ~~disregarded for purposes~~ available only pursuant to Section 12.02(c)(i) and not pursuant to Section 12.02(a)(iv) or Section 12.02(b)(iv), and indemnification under this Article 12 with respect to any matter giving rise to an inaccuracy or breach of ~~calculating the amount of said Claim~~any representation or warranty contained in Article 6 or Section 4.05 shall be available only pursuant to Section 12.02(d)(i) and not pursuant to Section 12.02(a)(iv) or Section 12.02(b)(iv). ~~3.1.5. Neither party~~ (f) All amounts owing under this Article 12 shall be ~~required~~ paid by wire transfer of immediately available funds to ~~indemnify~~ the ~~other party pursuant~~ account designated in writing by the Indemnified Party entitled to ~~this Section unless or until the aggregate monetary amount~~ such payment, promptly after receipt of ~~Adverse Consequences exceeds $10,000.00 (the “Basket”) following which~~ written notice by the Indemnifying Party ~~shall be required to indemnify~~ from the Indemnified Party ~~(subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences~~ specifying in ~~excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i)~~ reasonable detail the amount of the ~~Cash Portion~~ claimed Damages and the basis for such Damages. Upon a final determination (by agreement of the Indemnifying Party or a final, non-appealable order obtained in accordance with this Agreement) that ~~Buyer has paid~~ an indemnification obligation is due under this Article 12 and the failure of the Indemnifying Party to pay such obligation within thirty (30) days of written demand for payment from the ~~Seller pursuant to Section 1.3(b~~Indemnified Party, interest shall accrue at the Federal Funds Rate (compounded monthly) as on the unpaid amount of the indemnification obligation from the date of such final determination until the ~~Claim, or (ii) $200,000 (the “Indemnity Cap”)~~indemnification obligation is paid in full. 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remedies.

Appears in 1 contract

Samples: Contribution and Exchange Agreement (Abbott Laboratories)

General Indemnification Obligations. ~~3.1.1. The~~ (a) Subject to the terms and conditions set forth in this Article 5, Seller shall indemnify and defend ~~the Buyer and the Parent~~ Purchaser and hold ~~the Buyer and the Parent~~ Purchaser harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) arising out of, resulting from, relating to, in the nature of or caused by any misrepresentation or breach of any representation, warranty, covenant or agreement made by the Seller in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by the Seller to Buyer pursuant to this Agreement or in connection with the transactions contemplated by this Agreement. 3.1.2. The Buyer and the Parent shall indemnify and defend the Seller and hold the Seller harmless from following and against any and all Adverse Consequences arising out of, resulting from, relating to, in the nature of or caused by: (i) any breach or inaccuracy of any representation or warranty made by Seller in this Agreement; (ii) any ~~misrepresentation or~~ breach of any ~~representation~~covenant, ~~warranty, covenant~~ agreement or ~~agreement made by the Buyer or the Parent~~ obligation of Seller in this Agreement or in any ~~statement, certificate, instrument or other document or item furnished or~~ Ancillary Document delivered or to be ~~furnished or~~ delivered by ~~Buyer~~ Seller to Purchaser pursuant to this Agreement of the Transaction; (iii) all Taxes payable by Seller whether or not shown on any Tax Returns; (iv) any Liability under or pursuant to any Employee Benefit Plan; (v) the Retained Liabilities; and (vi) Seller’s or its Affiliates’ noncompliance with applicable air quality permit solvent usage, emission limits, compliance ratios or other violations of or Liability pursuant to an Environmental Law at the Facility prior to the Closing Date, including without limitation, any resulting penalties assessed by the Indiana Department of Environmental Management, the Environmental Protection Agency or other Authority arising out of the claims set forth in Schedule 2.7 hereof. (b) Subject to the terms and conditions set forth in this Article 5, Purchaser shall indemnify and defend Seller and hold Seller harmless from and against the following and all Adverse Consequences arising out of, resulting from, relating to, in the nature of or caused by: (i) any breach or inaccuracy of any representation or warranty made by Purchaser in this Agreement; (ii) any breach of any covenant, agreement or obligation of Purchaser in this Agreement or any Ancillary Document delivered or to be delivered by Purchaser to Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and Transaction; (iii) ~~a demand for payment in the amount~~ any Liability arising out of ~~such damages; provided, however that any delay~~ circumstances or ~~failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except~~ occurrences related to the ~~extent that the defense of such action is prejudiced by such delay~~ ownership or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all operation of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party Business and the ~~Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been~~ Purchased Assets on or after the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, Closing Date; and (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (iiv) the ~~amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”)~~Assumed Liabilities. 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remedies.

Appears in 1 contract

Samples: Asset Purchase Agreement (Benson Hill, Inc.)

General Indemnification Obligations. ~~3.1.1. The~~ (a) Seller ~~shall~~ and PEI shall, indemnify ~~and defend the~~ Buyer and ~~the Parent~~ its directors, officers and other Affiliates (including Parent) and hold ~~the~~ Buyer and ~~the Parent~~ such other parties harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by the Seller Parties in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished ~~or delivered~~ to Buyer by any of the Seller ~~to Buyer~~ Parties pursuant to this Agreement (including the Transaction Documents); (B) subject to Section 7.3.2, any Excluded Assets or ~~in connection with~~ Retained Liabilities; (C) subject to Section 7.3.2 the ~~transactions contemplated by this Agreement~~ownership, operation or use of any of the businesses or assets of the Seller Parties or their Affiliates other than the Business whether before, on or after the Closing Date; and (D) the failure of Seller to obtain subdivision approvals for the transfer of the Real Estate from all applicable Authorities. ~~3.1.2. The~~ (b) Buyer and ~~the~~ Parent shall indemnify Seller, PEI and ~~defend the~~ their directors, officers and other Affiliates and hold Seller and ~~hold the Seller~~ such other parties harmless from and against any and all ~~Adverse Consequences~~ Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by ~~the~~ Parent or Buyer ~~or the Parent~~ in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished to Seller by Parent or ~~delivered by~~ Buyer ~~to the Seller~~ pursuant to this Agreement (including the Transaction Documents); (B) any Assumed Liabilities after the Closing Date; (C) the ownership, operation or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) use of the ~~assertion of any claim, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable~~ Business after the ~~party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section~~ Closing Date (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent ~~that the defense of such action is prejudiced by such delay~~ resulting from Retained Liabilities or ~~failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver~~ to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment extent resulting from breaches by the ~~Indemnifying Party to the Indemnified Party~~ Seller Parties of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants or agreements hereunder or in the other Transaction Documents); and ~~agreements under~~ (D) any claim by a Transferred Employee or a Former Employee referred to on Schedule 5.12 or the Beneficiary of any such employee or former employee for post-retirement health care or life insurance benefits "incurred" (within the meaning of Section 5.9.4) after the Closing. (c) For purposes of this ~~Agreement~~ Agreement, "Damages" shall mean any and all losses, liabilities, obligations, damages (including any governmental penalty or punitive damages assessed or asserted against the party seeking indemnification and including costs of investigation, clean-up and remediation), deficiencies, interest, costs and expenses and any claims, actions, demands, causes of action, judgments, costs and reasonable expenses (including reasonable attorneys' fees and all other reasonable expenses incurred in investigating, preparing or defending any litigation or proceeding, commenced or threatened, incident to the successful enforcement of this Agreement). For purposes of determining any breach of, and calculating the amount of Damages incurred by the Indemnified Party arising out of or resulting from, any breach of a representation, covenant or agreement by any party hereto, the references to a "Material Adverse Effect" or materiality (or other correlative terms) shall be ~~in lieu~~ disregarded. Notwithstanding the foregoing, Damages shall not include the loss of ~~any other common law~~ profits of the party seeking indemnification, or ~~statutory rights~~ punitive damages unless the party seeking indemnification has had punitive damages assessed or ~~remedies~~asserted against it.

Appears in 1 contract

Samples: Asset Purchase Agreement (American Water Works Co Inc)

General Indemnification Obligations. ~~3.1.1. The Seller~~ (a) Stockholder shall indemnify and defend ~~the Buyer~~ Purchaser and the ~~Parent~~ Surviving Corporation and hold ~~the Buyer~~ Purchaser and the ~~Parent~~ Surviving Corporation harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse ~~Consequences”)~~ Consequences arising out of, resulting from, relating to, in the nature of or caused by by: (i) any misrepresentation or breach of any ~~representation, warranty, covenant~~ representation or ~~agreement~~ warranty made by the ~~Seller~~ Company or by the Stockholder in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by the ~~Seller~~ Company or by the Stockholder to ~~Buyer~~ Purchaser pursuant to this ~~Agreement or in connection with the transactions contemplated~~ Agreement; (ii) any failure by ~~this Agreement. 3.1.2. The Buyer and the Parent shall indemnify and defend the Seller and hold the Seller harmless from and against~~ Stockholder to perform any ~~and all Adverse Consequences arising out of, resulting from, relating to, in the nature of or caused by any misrepresentation or breach of any representation, warranty,~~ covenant or agreement ~~made by~~ of the ~~Buyer or the Parent~~ Stockholder in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by ~~Buyer~~ Stockholder to ~~the Seller~~ Purchaser pursuant to this Agreement; (iii) the Chicago Leases (other than Adverse Consequences related to or arising from breaches by the Surviving Corporation of the Riverside Lease or the Riverside Lease Termination Agreement following the Closing); (iv) the Company's 2000 Stock Incentive Plan; or (v) the Stockholder's failure to obtain the IRS Letter. (b) Purchaser shall indemnify and defend Stockholder and hold Stockholder harmless from and against any and all Adverse Consequences arising out of, resulting from, relating to, in the nature of or caused by: (i) any misrepresentation or breach of any representation or warranty made by Purchaser in this Agreement or in ~~connection with the transactions contemplated~~ any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by ~~this Agreement. 3.1.3. A party seeking indemnification~~ Purchaser to Stockholder pursuant to this ~~Section~~ Agreement; (~~an “Indemnified Party”~~ii) ~~shall give notice~~ any failure by Purchaser to ~~the party from whom such indemnification is sought (the “Indemnifying Party”)~~ perform any covenant or agreement of the ~~assertion of~~ Purchaser in this Agreement or in any ~~claim~~statement, certificate, instrument or ~~the commencement of any action, suit~~ other document or ~~proceeding, in respect of which indemnity may~~ item furnished or delivered or to be ~~sought~~ furnished or delivered by Purchaser to Stockholder pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and Agreement; (iii) ~~a demand for payment~~ the Liabilities of the Company set forth on the face of the Closing Balance Sheet, but only in the ~~amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve~~ amounts set forth on the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all face of the ~~damages claimed~~ Closing Balance Sheet, (~~in which case such response shall be accompanied by a payment by~~ iv) the ~~Indemnifying Party to the Indemnified Party~~ ownership or operation of the ~~damages claimed,~~ Company on or after the Closing Date; or (v) the Residual Value Accrual Liabilities.. (c) Any payments made by ~~check or by wire transfer), (II) agree that the Indemnified Party is entitled~~ Stockholder to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this ~~Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party~~ Article 8 shall be ~~required to indemnify the Indemnified Party (subject~~ treated as an adjustment to the ~~Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket~~Initial Merger Consideration. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remedies.

Appears in 1 contract

Samples: Merger Agreement (Infousa Inc)

General Indemnification Obligations. ~~3.1.1. The~~ (a) Seller shall indemnify ~~and defend the Buyer and the~~ Parent and IAWC and their directors, officers and other Affiliates and hold ~~the Buyer~~ Parent and ~~the Parent~~ IAWC and such other parties harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by the Seller Parties in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished to Parent or ~~delivered~~ IAWC by any of the Seller ~~to Buyer~~ Parties pursuant to this Agreement (including the Transaction Documents); (B) subject to Section 7.3.2, any Excluded Assets or Retained Liabilities; (C) subject to Section 7.3.2, the ownership, operation or use of any of the businesses or assets of the Seller Parties or their Affiliates (other than the Business, the Acquired Assets or the CLWC Stock) whether before, on or after the Closing Date; and (D) an event of taxability, as such term is customarily used in ~~connection with~~ municipal securities transactions, relating to the ~~transactions contemplated by~~ Retained IDRB Indebtedness and arising from the sale of the Acquired Assets pursuant to this Agreement. ~~3.1.2. The Buyer~~ (b) IAWC and ~~the~~ Parent shall indemnify Seller, and ~~defend the~~ their directors, officers and other Affiliates (including Citizens) and hold Seller and ~~hold the Seller~~ such other parties harmless from and against any and all ~~Adverse Consequences~~ Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by ~~the Buyer~~ Parent or ~~the Parent~~ IAWC in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished to Seller by Parent or ~~delivered by Buyer to the Seller~~ IAWC pursuant to this Agreement (including the Transaction Documents), including the IAWC's IDRB Obligations; (B) any Assumed Liabilities after the Closing Date, including the Assumed Indebtedness; (C) the ownership, operation or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) use of the ~~assertion of any claim~~Business, the Acquired Assets or the ~~commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable~~ CLWC Stock after the ~~party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section~~ Closing Date (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent ~~that the defense of such action is prejudiced by such delay~~ resulting from Retained Liabilities or ~~failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver~~ to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment extent resulting from breaches by the ~~Indemnifying Party to the Indemnified Party~~ Seller Parties of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants or agreements hereunder or in the other Transaction Documents); (D) any claim by a Transferred Employee or a Former Employee referred to on Schedule 5.12 or the Beneficiary of any such employee or former employee for post-retirement health care or life insurance benefits "incurred" (within the meaning of Section 5.9.4) after the Closing; (E) any violation by Parent or IAWC, or any assignee, lessee or successor of Parent or IAWC, of the covenants and agreements ~~under~~ as provided by Section 5.16.3 hereof and Section 5 of Exhibit D hereto; and (F) an event of taxability, as such term is customarily used in municipal securities transactions, relating to the Assumed Indebtedness and arising from the sale of the Acquired Assets pursuant to this Agreement ~~and shall be in lieu~~ and/or the assignment or assumption of ~~any other common law or statutory rights or remedies.~~the Assumed Indebtedness. 60

Appears in 1 contract

Samples: Merger Agreement (American Water Works Co Inc)

General Indemnification Obligations. ~~3.1.1. The Seller~~ (i) Subject to the limitations and procedures contained in this Article 14, Landlord shall ~~indemnify and~~ indemnify, defend ~~the Buyer and the Parent~~ and hold ~~the Buyer~~ harmless Tenant and ~~the Parent harmless~~ its affiliates and their respective directors, officers, employees and representatives (each a "Tenant Indemnified Party") from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages to the extent arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by ~~the Seller~~ Landlord in this ~~Agreement~~ Lease or in any ~~statement, certificate,~~ instrument or ~~other document or item furnished or delivered or~~ certificate required to be furnished to Tenant by Landlord or ~~delivered by the Seller to Buyer~~ its affiliates pursuant to this ~~Agreement~~ Lease, provided that the same does not result from the negligent acts or ~~in connection with the transactions contemplated by this Agreement~~omissions of Tenant or any Tenant Indemnified Party. ~~3.1.2. The Buyer~~ (ii) Subject to the limitations and ~~the Parent~~ procedures contained in this Article 14, Tenant shall ~~indemnify and~~ indemnify, defend ~~the Seller~~ and hold ~~the Seller~~ harmless Landlord and its affiliates and their respective directors, officers, employees and representatives (each a "Landlord Indemnified Party") from and against any and all ~~Adverse Consequences~~ Damages to the extent arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by ~~the Buyer or the Parent~~ Tenant in this ~~Agreement~~ Lease or in any ~~statement, certificate,~~ instrument or ~~other document or item furnished or delivered or~~ certificate required to be furnished to Landlord by Tenant or ~~delivered by Buyer to the Seller~~ its Affiliates pursuant to this ~~Agreement~~ Lease; (B) the operation of Tenant's Business at the Property, ordinary wear and tear excepted; (C) unauthorized works carried out during the Lease Term to the Property; (D) anything now attached to or ~~in connection~~ projecting from the Property; and (E) any act, neglect or default by the Tenant, any subtenant or assignee, or their respective servants or agents or any person on the Property with the ~~transactions contemplated by~~ actual or implied authority of any of them, provided that in any of the foregoing cases, the same does not result from the negligent actions or omissions of Landlord or any Landlord Indemnified Party. (iii) For purposes of this Agreement~~. 3.1.3. A party seeking indemnification pursuant to this Section~~ , "Damages" means any and all reasonable and proper losses, liabilities, damages, (~~an “Indemnified Party”~~including consequential damages) ~~shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”)~~ deficiencies, interest, costs and expenses and any claims, actions, demands, causes of ~~the assertion of any claim, or the commencement of any~~ action, ~~suit~~ judgments, settlements, fines, costs and expenses (including reasonable attorneys' fees, accountants' fees and all other expenses incurred in investigating, preparing or defending any litigation or proceeding, ~~in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition~~ commenced or ~~event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior~~ threatened incident to the ~~applicable expiration date described below in Section 10~~successful enforcement of this Agreement) ~~which contains (i)~~ suffered, sustained, incurred or required to be paid by a ~~description and the amount of any damages incurred by the~~ Tenant Indemnified Party or a Landlord Indemnified Party, ~~(ii) a statement that~~ as the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner)be; provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section "Damages" shall not include punitive or exemplary damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect except to the ~~matters contained herein. Provided~~ extent that ~~the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set~~ such punitive or ~~set-off any payment due pursuant to this Agreement against any other payment~~ exemplary damages are required to be ~~made pursuant~~ paid by an Indemnified Party to ~~this Agreement~~ a third party (other than a Tenant Indemnified Party or ~~otherwise (including against indemnification payments). Except for breaches~~ Landlord Indemnified Party) and result in actual out-of-pocket damages of ~~Sections 1.2~~ a Tenant Indemnified Party or ~~1.7 by Buyer or the Parent~~Landlord Indemnified Party, as the case may ~~be, indemnification under this Section shall~~ be ~~the exclusive means of recovery by either the Buyer, the Parent, or the Seller and,~~ pursuant to a Third Party Claim (as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remediesdefined below).

Appears in 1 contract

Samples: Lease Agreement (Life Sciences Research Inc)

General Indemnification Obligations. ~~3.1.1. The Seller shall indemnify~~ (i) Contributors, jointly and severally, hereby agree to indemnify, defend ~~the Buyer and the Parent~~ and hold ~~the Buyer~~ AHMY and ~~the Parent~~ its officers, directors and other affiliates harmless from and against and to reimburse such Persons with respect to any one or more of the following: (A) any and all ~~actions~~Damages (as defined below) arising out of or resulting from a misrepresentation or breach of warranty of Contributors contained in this Agreement or in any exhibit or schedule hereto, ~~suits~~or in any other statement, ~~proceedings~~certificate or document furnished or to be furnished to AHMY pursuant hereto or in connection with the transactions contemplated hereby; (B) any and all Damages arising out of or resulting from any breach of any covenant or obligation of Contributors contained in this Agreement, ~~hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution~~ whether requiring performance before or after the Closing Date; (C) any and all Damages arising out of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) or resulting from any claim based on or arising out of, in whole or in part, this Agreement, the transactions contemplated hereby or the performance by any party of its obligations hereunder made by or on behalf of any party (other than AHMY) with whom Contributors heretofore have had, or hereafter may have, discussions or communications regarding the sale or other dispositions of all or substantially all of the IP; (D) any and all Damages arising out of or resulting ~~from~~from any liabilities of Contributors of any nature, whether due or to become due, whether accrued, absolute, contingent or otherwise, whether arising prior to or after the Closing Date, relating toto the ownership or operation of the IP on or prior to the Closing Date; and (ii) AHMY hereby agrees to indemnify, in defend and hold Contributors harmless from and against and to reimburse Contributors and their affiliates with respect to any one or more of the ~~nature~~ following: (A) any and all Damages arising out of or ~~caused by any~~ resulting from a misrepresentation or breach of ~~any representation, warranty, covenant or agreement made by the Seller~~ warranty of AHMY contained in this Agreement or in any statement, ~~certificate, instrument~~ certificate or ~~other~~ document ~~or item~~ furnished ~~or delivered~~ or to be furnished ~~or delivered~~ by ~~the Seller~~ AHMY to ~~Buyer~~ Contributors pursuant ~~to this Agreement~~ hereto or in connection with the transactions contemplated ~~by this Agreement.~~hereby; ~~3.1.2. The Buyer and the Parent shall indemnify and defend the Seller and hold the Seller harmless from and against~~ (B) any and all ~~Adverse Consequences~~ Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from any ~~misrepresentation or~~ breach of any ~~representation, warranty,~~ covenant or agreement made by the Buyer or the Parent in this Agreement or in any statement, certificate, instrument or other document or item furnished or delivered or to be furnished or delivered by Buyer to the Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) obligation of the assertion of any claim, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth AHMY contained in this Agreement, ~~none~~ whether requiring performance before or after the Closing Date; and (C) any and all Damages arising out of ~~the Seller~~or resulting from any liabilities of AHMY of any nature, ~~the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect~~ relating to the ~~matters contained herein. Provided that~~ ownership or operation of AHMY arising after the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remediesClosing Date.

Appears in 1 contract

Samples: Technology Contribution Agreement (Alchemy Enterprises, Ltd.)

General Indemnification Obligations. ~~3.1.1. The~~ (a) Seller shall indemnify ~~and defend the Buyer and the~~ Parent and IAWC and their directors, officers and other Affiliates and hold ~~the Buyer~~ Parent and ~~the Parent~~ IAWC and such other parties harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by the Seller Parties in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished to Parent or ~~delivered~~ IAWC by any of the Seller ~~to Buyer~~ Parties pursuant to this Agreement (including the Transaction Documents); (B) subject to Section 7.3.2, any Excluded Assets or Retained Liabilities; (C) subject to Section 7.3.2, the ownership, operation or use of any of the businesses or assets of the Seller Parties or their Affiliates (other than the Business, the Acquired Assets or the CLWC Stock) whether before, on or after the Closing Date; and (D) an event of taxability, as such term is customarily used in ~~connection with~~ municipal securities transactions, relating to the ~~transactions contemplated by~~ Retained IDRB Indebtedness and arising from the sale of the Acquired Assets pursuant to this Agreement. ~~3.1.2. The Buyer~~ (b) IAWC and ~~the~~ Parent shall indemnify Seller, and ~~defend the~~ their directors, officers and other Affiliates (including Citizens) and hold Seller and ~~hold the Seller~~ such other parties harmless from and against any and all ~~Adverse Consequences~~ Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation or~~ breach of any representation, warranty, covenant or agreement made by ~~the Buyer~~ Parent or ~~the Parent~~ IAWC in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished to Seller by Parent or ~~delivered by Buyer to the Seller~~ IAWC pursuant to this Agreement (including the Transaction Documents), including the IAWC's IDRB Obligations; (B) any Assumed Liabilities after the Closing Date, including the Assumed Indebtedness; (C) the ownership, operation or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) use of the ~~assertion of any claim~~Business, the Acquired Assets or the ~~commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable~~ CLWC Stock after the ~~party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section~~ Closing Date (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent ~~that the defense of such action is prejudiced by such delay~~ resulting from Retained Liabilities or ~~failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver~~ to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment extent resulting from breaches by the ~~Indemnifying Party to the Indemnified Party~~ Seller Parties of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants or agreements hereunder or in the other Transaction Documents); (D) any claim by a Transferred Employee or a Former Employee referred to on Schedule 5.12 or the Beneficiary of any such employee or former employee for post-retirement health care or life insurance benefits "incurred" (within the meaning of Section 5.9.4) after the Closing; (E) any violation by Parent or IAWC, or any assignee, lessee or successor of Parent or IAWC, of the covenants and agreements ~~under~~ as provided by Section 5.16.3 hereof and Section 5 of Exhibit D hereto; and (F) an event of taxability, as such term is customarily used in municipal securities transactions, relating to the Assumed Indebtedness and arising from the sale of the Acquired Assets pursuant to this Agreement and/or the assignment or assumption of the Assumed Indebtedness. (c) For purposes of this Agreement, "Damages" shall mean any and ~~shall be in lieu of~~ all losses, liabilities, obligations, damages (including any ~~other common law~~ governmental penalty or ~~statutory rights~~ punitive damages assessed or ~~remedies.~~asserted against the party seeking indemnification and including costs of

Appears in 1 contract

Samples: Asset Purchase Agreement (Citizens Utilities Co)

General Indemnification Obligations. ~~3.1.1. The~~ (i) Except as set forth in Section 4.19(b), Seller shall indemnify Purchaser and ~~defend~~ its directors, officers, and other Affiliates (the ~~Buyer and the Parent~~ “Purchaser Indemnified Parties”), and hold the ~~Buyer and the Parent~~ Purchaser Indemnified Parties harmless from and ~~against~~ against, any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages arising out of, resulting ~~from,~~ from or relating ~~to, in the nature of or caused by~~ to (A) any misrepresentation or breach of any ~~representation, warranty, covenant~~ representation or ~~agreement~~ warranty made by ~~the~~ Seller in this Agreement or in any schedule, statement, ~~certificate, instrument or other~~ document or ~~item~~ certificate furnished or ~~delivered or~~ required to be furnished to Purchaser by or ~~delivered~~ on behalf of Seller or its Subsidiaries pursuant thereto; (B) breach of any covenant or agreement made by ~~the~~ Seller ~~to Buyer pursuant to~~ in this Agreement or in any schedule, statement, document or certificate furnished or required to be furnished to Purchaser by or on behalf of Seller or its Subsidiaries pursuant thereto; (C) the Excluded Liabilities; or (D) any claim or cause of action from any shareholder or creditor of Seller brought in their capacity as such against any Purchaser Indemnified Party in connection with the ~~transactions contemplated by this Agreement~~Transaction. ~~3.1.2. The Buyer and the Parent~~ (ii) Except as set forth in Section 4.19(b), Purchaser shall indemnify Seller and ~~defend~~ its directors, officers and other Affiliates (the “Seller Indemnified Parties”) and hold the Seller Indemnified Parties harmless from and ~~against~~ against, any and all ~~Adverse Consequences~~ Damages arising out of, resulting ~~from,~~ from or relating ~~to, in the nature of or caused by~~ to (A) any misrepresentation or breach of any ~~representation, warranty, covenant~~ representation or ~~agreement~~ warranty made by ~~the Buyer or the Parent~~ Purchaser in this Agreement or in any schedule, statement, ~~certificate, instrument or other~~ document or ~~item~~ certificate furnished or ~~delivered or~~ required to be furnished to Seller by or ~~delivered~~ on behalf of Purchaser or its Subsidiaries pursuant thereto (other than the Warrant Agreement); (B) breach of any covenant or agreement made by ~~Buyer to the Seller pursuant to~~ Purchaser in this Agreement or in ~~connection with~~ any schedule, statement, document or certificate furnished or required to be furnished to Seller by or on behalf of Purchaser or its Subsidiaries pursuant thereto (other than the ~~transactions contemplated by this~~ Warrant Agreement); or (C) the Assumed Liabilities. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Section and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this ~~Section~~Agreement, ~~including the determination of Claims by Buyer,~~ “Damages” shall mean any and all ~~references to “material” limitations~~ losses, liabilities, obligations, damages (including any governmental penalty or ~~limitations as to “knowledge”~~ costs of investigation, clean-up and remediation), deficiencies, royalties, interest, costs and expenses and any claims, actions, demands, causes of action, judgments, costs and expenses (including reasonable attorneys’ fees and all other expenses reasonably incurred in ~~Seller’s representations and warranties~~investigating, ~~while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified~~preparing or defending any litigation or proceeding, ~~shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless~~ commenced or ~~until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject~~ threatened incident to the ~~Indemnity Cap) only for the monetary amounts~~ successful enforcement of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”this Agreement). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remedies.

Appears in 1 contract

Samples: Business Transfer Agreement (MagnaChip Semiconductor LTD (United Kingdom))

General Indemnification Obligations. ~~3.1.1. The Seller~~ (i) Each Seller, on a joint and several basis, shall indemnify ~~and defend the~~ Buyer and ~~the Parent~~ its directors, officers and other Affiliates and hold ~~the~~ Buyer and ~~the Parent~~ its directors, officers and other Affiliates harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse Consequences”) Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation~~ breach or ~~breach~~ inaccuracy of any ~~representation, warranty, covenant~~ representation or ~~agreement~~ warranty made by the ~~Seller~~ Sellers in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished ~~or delivered~~ to Buyer by the ~~Seller to Buyer~~ Sellers or their Affiliates pursuant to this Agreement (including the Transaction Documents); (B) any breach or violation of any covenant or agreement of the Sellers contained in this Agreement or any other Transaction Document; (C) any liability arising under any bulk sales law in connection with the ~~transactions contemplated~~ transfer of the Acquired Assets; (D) any Retained Liabilities; (E) Sellers' conduct of the Business at or prior to the Closing, including, without limitation, any liabilities based upon, arising out of, relating to or otherwise in respect of any events, actions, occurrences, omissions, circumstances or conditions whatsoever occurring or existing at or prior to the Closing, whether asserted prior to, at or after the Closing (except to the extent the same constitutes an Assumed Liability); and (F) any claim of damages brought or sought against Buyer by ~~this Agreement~~third parties that alleges that the Intellectual Property or Buyer's use of the Intellectual Property in the Business infringes any patent, copyright, trade secret or other proprietary right of any third party. ~~3.1.2. The~~ (ii) Buyer ~~and the Parent~~ shall indemnify Sellers and ~~defend the Seller~~ their directors, officers and other Affiliates and hold ~~the Seller~~ Sellers and their directors, officers and other Affiliates harmless from and against any and all ~~Adverse Consequences~~ Damages arising out ~~of, resulting from, relating to, in the nature~~ of or ~~caused by~~ resulting from (A) any ~~misrepresentation~~ falsity, breach or ~~breach~~ inaccuracy of any ~~representation, warranty, covenant~~ representation or ~~agreement~~ warranty made by ~~the~~ Buyer ~~or the Parent~~ in this Agreement or in any ~~statement, certificate, instrument or other~~ document or ~~item furnished or delivered or~~ certificate required to be furnished ~~or delivered~~ to Sellers by Buyer ~~to the Seller~~ pursuant to this Agreement (including the Transaction Documents); (B) any breach or in connection with the transactions contemplated by this Agreement. 3.1.3. A party seeking indemnification pursuant to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion violation of any ~~claim,~~ covenant or ~~the commencement~~ agreement of Buyer contained in this Agreement or any ~~action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section~~ other Document; (~~a “Claim”~~C) ~~as soon as practicable after the party entitled to indemnification becomes aware of~~ any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in any event on or prior to the applicable expiration date described below in Section 10) which contains (i) a description and the amount of any damages incurred by the Indemnified PartyAssumed Liabilities, (iiD) ~~a statement that~~ the ~~Indemnified Party is entitled~~ failure of Sellers to ~~indemnification under this Section and a reasonable explanation of the basis therefor~~comply with applicable bulk transfer laws or similar statutes, laws or regulations, and (~~iii~~E) a demand for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of such action is prejudiced by such delay or failure to notify or promptly notify. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all Buyer's conduct of the ~~damages claimed (in which case such response shall be accompanied by a payment by~~ Business after the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and Closing. (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this ~~Section~~Agreement, ~~including the determination of Claims by Buyer,~~ "Damages" shall mean ------- any and all ~~references to “material” limitations~~ losses, liabilities, obligations, damages, fines, penalties, deficiencies, interest, costs and expenses and any claims, actions, demands, causes of action, judgments, costs and expenses (including attorneys' fees and all other expenses incurred in investigating, preparing or ~~limitations as to “knowledge” in Seller’s representations and warranties~~defending any litigation or proceeding, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless commenced or ~~until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject~~ threatened incident to the ~~Indemnity Cap) only for the monetary amounts~~ successful enforcement of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser of: (i) the amount of the Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim, or (ii) $200,000 (the “Indemnity Cap”this Agreement). 3.1.7. In no event shall the provisions of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remedies.

Appears in 1 contract

Samples: Asset Purchase Agreement (Abc Naco Inc)

General Indemnification Obligations. ~~3.1.1. The Seller~~ (a) Company shall indemnify and defend ~~the Buyer and the Parent~~ Purchaser and hold ~~the Buyer and the Parent~~ Purchaser harmless from and against any and all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, diminution of value, penalties, fines, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, costs, expenses and fees, including court costs and reasonable attorneys’ fees and expenses (collectively, “Adverse ~~Consequences”)~~ Consequences or Liabilities arising out of, resulting from, relating to, in the nature of or caused ~~by any misrepresentation~~ by: (i) Any misrepresentation, breach, failure, or ~~breach~~ nonperformance (as applicable) of any representation, warranty, ~~covenant~~ covenant, or agreement made by ~~the Seller~~ Company in this Agreement or in any written statement, certificate, ~~instrument~~ instrument, or other document or item furnished or delivered or to be furnished or delivered by ~~the Seller~~ Company to ~~Buyer~~ Purchaser pursuant to this Agreement or in connection with the transactions contemplated by this Agreement; (ii) The ownership or operation of the Company prior to the Closing Date, other than the Assumed Liabilities; (iii) Any claims brought by any Authorities for omissions in bonding or licensing, but such indemnification shall be limited to claims asserted against Purchaser during the first year following the date of the Closing and only for claims arising from the action or inaction of MKTE or Seller prior to the Closing; (iv) Any Taxes relating to periods through and including the Closing Date, other than Taxes previously paid and accruals or reserves for Taxes set forth on the face of the Financial Statements; or (v) The Retained Liabilities. ~~3.1.2. The Buyer and the Parent~~ (b) Purchaser shall indemnify and defend ~~the Seller~~ Company and hold ~~the Seller~~ Company harmless from and against any and all Adverse Consequences or Liabilities arising out of, resulting from, relating to, in the nature of or caused ~~by any misrepresentation~~ by: (i) Any misrepresentation, breach, failure, or ~~breach~~ nonperformance (as applicable) of any representation, warranty, ~~covenant~~ covenant, or agreement made by ~~the Buyer or the Parent~~ Purchaser in this Agreement or in any statement, certificate, ~~instrument~~ instrument, or other document or item furnished or delivered or to be furnished or delivered by ~~Buyer~~ Purchaser to ~~the Seller~~ Company pursuant to this Agreement or in connection with the transactions contemplated by this Agreement; or (ii) The Assumed Liabilities. ~~3.1.3. A party seeking indemnification pursuant~~ (c) Subject to this Section (an “Indemnified Party”) shall give notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action, suit or proceeding, in respect of which indemnity may be sought pursuant to this Section (a “Claim”) as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section (but in without limiting) the terms of Section 6.9, Company shall indemnify Purchaser for any ~~event on~~ and all third party clams arising from the Intellectual Property and Computer Software transferred hereunder, but only for claims arising from the action or inaction of MKTE or Seller prior to the ~~applicable expiration~~ Closing. Company hereby agrees to indemnify, hold harmless, and defend Purchaser from and against any and all Liabilities asserted against Purchaser by a third party to the extent such Liabilities result from the infringement of the Intellectual Property and Computer Software, including, but not limited to, any third party's trade secret, trademark, service mark, copyright, license, xx xatent issued as of the date ~~described below in Section 10) which contains~~ of this Agreement (collectively, an "Intellectual Property Right"); provided, that Purchaser: (i) ~~a description and the amount~~ promptly notifies Company of any ~~damages incurred by the Indemnified Party~~third party claim subject to indemnification hereunder, (ii) gives Company the right to control and direct the preparation of a ~~statement that~~ defense, the ~~Indemnified Party is entitled to indemnification under this Section~~ defense and ~~a reasonable explanation~~ any settlement of ~~the basis therefor~~any such claim, and (iii) ~~a demand~~ cooperates with Company for payment in the amount of such damages; provided, however that any delay or failure of any Indemnified Party with regard to notifying any Indemnifying Party of any Claim shall not relieve the Indemnifying Party from any liability hereunder except to the extent that the defense of ~~such action is prejudiced by such delay or failure to notify or promptly notify~~same. Within 15 days after delivery of a notice of a Claim, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the damages claimed (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the damages claimed, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the damages claimed and a reasonable explanation of the basis therefor (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any of the damages claimed and a reasonable explanation of the basis therefor. If the Indemnifying Party in such response contests the payment of all or part of the damages claimed, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. Any survival period time limitation specified in Section 10 below The foregoing provisions shall not apply to a Claim which has been the subject of notice from the Indemnified Party to the Indemnifying Party given prior to the expiration of such period. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action (provided such defense and investigation are pursued in a diligent and professional manner); (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party does assume the defense of such Claim as provided above, the Indemnified Party shall have the right to fully participate in such defense (including engaging attorneys of its own choice), at its sole expense, and the Indemnifying Party (and its chosen attorneys) shall keep the Indemnified Party (and its attorneys) reasonably informed and shall reasonably cooperate with the Indemnified Party (and its attorneys) in connection with such participation. If the Indemnifying Party fails to assume the defense of such claim within 15 days after receipt of the notice of a Claim, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party (which defense shall be pursued in a diligent and professional manner); provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any damages by reason of such settlement or judgment. 3.1.4. For purposes of this Section, including the determination of Claims by Buyer, any and all references to “material” limitations or limitations as to “knowledge” in Seller’s representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Buyer for Adverse Consequences for which Buyer is to be indemnified, shall be disregarded for purposes of calculating the amount of said Claim. 3.1.5. Neither party shall be required to indemnify the other party pursuant to this Section unless or until the aggregate monetary amount of Adverse Consequences exceeds $10,000.00 (the “Basket”) following which the Indemnifying Party shall be required to indemnify the Indemnified Party (subject to the Indemnity Cap) only for the monetary amounts of Adverse Consequences in excess of the Basket. 3.1.6. No party shall be required to indemnify the other party for an aggregate amount of Adverse Consequences in excess of the lesser infringement arising out of: (i) ~~the amount~~ use of the ~~Cash Portion that Buyer has paid to the Seller pursuant to Section 1.3(b) as of the date of the Claim~~Intellectual Property other than in accordance with applicable representations, documentation, or instructions supplied by Company; (ii) ~~$200,000~~ any alteration, modification, or revision of the Intellectual Property by Purchaser directly related to the source of the claim; or (iii) any post-Closing acts or omissions of Purchaser. This Section 8.1(c) shall survive the ~~“Indemnity Cap”)~~termination of this Agreement. ~~3.1.7. In no event~~ (d) The indemnification provisions of Section 7.1(n) shall not be limited by or interpreted under the ~~provisions~~ provision of this Section in any way modify or otherwise limit the rights or remedies available to any of the parties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach or default under this Agreement, to pursue any and all non-monetary relief to which any of them may otherwise be entitled at law, in equity or otherwise8.1. 3.1.8. The amount of damages payable by an Indemnifying Party under this Section shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the claim for which indemnification is sought, (b) reduced by any amounts recovered from any third parties, by way of indemnification or otherwise, with respect to the claim for which indemnification is sought and (c) any tax benefits actually received by the Indemnified Party or for which the Indemnified Party is eligible on account of the matter resulting in such damages or the payment of such damages. Each Indemnified Party shall, as soon as is reasonably practicable and commercially feasible, make application for such insurance procedures referred to in clause (a) above. Except with regard to compensation for claims paid to third parties, damages payable by an Indemnifying Party under this Section shall not include punitive damages or any special or indirect damages or any damages that are consequential in nature such as lost profits, diminution in value, damage to reputation and the like. Except as set forth in this Agreement, none of the Seller, the Parent or the Buyer are making any representation, warranty, covenant or agreement with respect to the matters contained herein. Provided that the Buyer has complied with all of the provisions of the this Section 3, Buyer shall have the right to off-set or set-off any payment due pursuant to this Agreement against any other payment to be made pursuant to this Agreement or otherwise (including against indemnification payments). Except for breaches of Sections 1.2 or 1.7 by Buyer or the Parent, as the case may be, indemnification under this Section shall be the exclusive means of recovery by either the Buyer, the Parent, or the Seller and, as applicable, its officers, directors and shareholders against the other party for any breach or violation, or alleged breach or violation, of the representations, warranties, covenants and agreements under this Agreement and shall be in lieu of any other common law or statutory rights or remedies.

Appears in 1 contract

Samples: Asset Purchase Agreement (Market Central Inc)

Common use of General Indemnification Obligations Clause in Contracts