General Indemnification. (a) Each Stockholder, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,
Appears in 2 contracts
Samples: Share Exchange Agreement (Eventures Group Inc), Share Exchange Agreement (Eventures Group Inc)
General Indemnification. (a) Each StockholderCannabist and each Member, agrees jointly on a joint and severallyseveral basis, with each other Stockholder, except with respect to representations, warranties shall indemnify the Buyer Indemnified Parties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend save and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") each of them harmless from an amount equal and against, and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses which any such Buyer Indemnified Party may suffer, sustain or become subject to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, arising from, in connection with, by virtue of or arising out of related to (i) the failure any breach or inaccuracy of any representation or warranty made by any Stockholder the Cannabist, the Company or the Members in this Agreement, in any of the Transaction Documents including Article III, or in any certificate furnished by or other instrument on behalf of the Company or document provided to Parent or Acquisition Sub the Members pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)Agreement, or (ii) any breach or alleged breach by any Stockholders non-fulfillment of any covenant, agreement or other provision by Cannabist, the Company or the Members under this Agreement, (iii) any Transaction Expenses to the extent not included in Final Transaction Expenses, (iv) any Transaction Payments to the extent not included in Final Transaction Payments, (v) any Indebtedness to the extent not included in Final Indebtedness, (vi) any Buyer Tax Losses, (vii) any information, calculation or determination set forth in the Funds Flow or instructions provided by Cannabist or the Company with respect to the payment of their covenants the Deposit, Purchase Price or agreements contained any alleged inaccuracy, discrepancy or impropriety with respect to any of the foregoing, (viii) Cannabist’s or its Affiliates Indebtedness, including the Notes, (ix) the Master Lease Agreement, to the extent not assigned to the Company pursuant to Section 2.5(b)(xx), and (x) Losses actually incurred and resulting from the claims set forth on Schedule 3.11. Notwithstanding anything herein to the contrary, for purposes of determining whether there has been a breach or thereininaccuracy of any representation or warranty and determining the amount of any Losses that are the subject matter of any indemnification claim hereunder, each representation and warranty in each case, this Agreement shall be read without giving effect to any "qualification or limitation as to materiality", "knowledge" Material Adverse Effect or words of similar qualificationsimport contained in any such representation or warranty. Buyer shall indemnify the Members and save and hold the Members harmless from and against, and pay on behalf of or reimburse the Members for any and all Losses which the Members may suffer, sustain or become subject to as a result of, arising from, in connection with, by virtue of or related to (A) any breach or inaccuracy of any representation or warranty made by Buyer in this Agreement, including Article IV, or in any certificate furnished by or on behalf of Buyer pursuant to this Agreement, and (B) any breach or non-fulfillment of any covenant, agreement or other provision by Buyer under this Agreement.
(b) Cannabist and the Members shall not be liable to the Buyer Indemnified Parties for any Loss (i) pursuant to Section 6.2(a)(i) (other than with respect to the Fundamental Representations) until the aggregate amount of all Losses that Cannabist and the Members would, but for this clause (i), be liable for exceeds $10,000 in the aggregate (the “Basket Amount”); provided, however, that Cannabist and the Members shall then be liable for the full amount of such Losses back to dollar one; or (1ii) to the Stockholders extent the aggregate amount of all Losses previously indemnified by Cannabist and the Members pursuant to Section 6.2(a)(i) exceeds $6,120,481.20 (the “Cap”). Buyer shall not have any obligation be liable to indemnify Parent or Acquisition Sub from and against the Members for any Loss resulting from(A) pursuant to Section 6.2(a)(A) until the aggregate amount of all Losses that the Buyer would, but for this clause (A), be liable for exceeds the Basket Amount; provided, however, that Buyer shall then be liable for the full amount of such Losses back to dollar one; or (B) to the extent the aggregate amount of all Losses previously indemnified by Buyer pursuant to Section 6.2(a)(A) exceeds the Cap. Notwithstanding anything to the contrary contained herein, the Basket Amount and the Cap shall not apply with respect to any Loss arising out of, relating to, in from (and such Loss shall not be counted toward the nature of, Cap) fraud or caused by intentional misrepresentation.
(c) Any Losses for which the breach Buyer Indemnified Parties are entitled to indemnification pursuant to Section 6.2(a) shall be satisfied pursuant to Section 6.2(e).
(d) No Party shall be entitled to a rescission of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, Agreement (or any certificate delivered related agreements).
(e) Any payment to be made by Cannabist or any Member with respect to any indemnification obligations for Losses pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses Article VI shall be satisfied, in excess of $200,000 Buyer’s sole discretion, (i) by deducting such amount from the amount due to CC VA under the Promissory Note in the aggregate order of interest due and owing and then in the order of maturities, (after which ii) directly against Cannabist and the Stockholders shall be obligated to indemnify Parent Members on a joint and Acquisition Sub from and against Losses only to several basis, or (iii) by any combination of the extent they exceed $200,000); (2) the aggregate amount foregoing. Any payments to be payable made by any Party pursuant to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) Article VI shall be paid by delivery wire transfer of shares immediately available funds within five calendar days after the determination of Parent Common Stock such payment obligation.
(f) The amount of any Loss for which indemnification is provided under this Article VI shall be net of any amounts actually received by the Escrow Agent pursuant indemnified Party as a result of such Loss under insurance policies or other third party sources of reimbursement or indemnification (with such amount, for the avoidance of doubt, reduced by any fees or expenses (including any payment with respect to attorneys’ fees and disbursements and/or any increase in insurance premiums) incurred in obtaining such recovery; provided, however, that in no event shall any indemnified Party be required to seek any recovery under any insurance policy or otherwise as a condition to receiving indemnification under this Article VI.
(g) No Party shall be entitled to double recovery for any adjustments to consideration provided for hereunder or for any indemnifiable Losses even though such Losses, or any other incident, may have result from the breach of more than one of the representations, warranties and covenants, or any other indemnity, under this Agreement or any related agreement.
(h) All indemnification payments under this Agreement shall be treated as adjustments to the terms of the Escrow Agreement and Purchase Price for all relevant Tax purposes.
(i) The procedure for indemnification shall be borne pro rata by the Stockholders,as set forth in this Section 6.2 and Section 6.4.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Cannabist Co Holdings Inc.), Equity Purchase Agreement (Verano Holdings Corp.)
General Indemnification. (a) Each StockholderCannabist and the Member, agrees jointly on a joint and severallyseveral basis, with each other Stockholder, except with respect to representations, warranties shall indemnify the Buyer Indemnified Parties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend save and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") each of them harmless from an amount equal and against, and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses which any such Buyer Indemnified Party may suffer, sustain or become subject to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, arising from, in connection with, by virtue of or arising out of related to (i) the failure any breach or inaccuracy of any representation or warranty made by any Stockholder the Cannabist, the Company or the Member in this Agreement, in any of the Transaction Documents including Article III, or in any certificate furnished by or other instrument on behalf of the Company or document provided to Parent or Acquisition Sub the Member pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)Agreement, or (ii) any breach or alleged breach by any Stockholders non-fulfillment of any covenant, agreement or other provision by Cannabist, the Company or the Member under this Agreement, (iii) any Transaction Expenses to the extent not included in Final Transaction Expenses, (iv) any Transaction Payments to the extent not included in Final Transaction Payments, (v) any Indebtedness to the extent not included in Final Indebtedness, (vi) any Buyer Tax Losses, (vii) any information, calculation or determination set forth in the Funds Flow or instructions provided by Cannabist or the Company with respect to the payment of their covenants the Deposit, Purchase Price or agreements contained any alleged inaccuracy, discrepancy or impropriety with respect to any of the foregoing, (viii) Cannabist’s or its Affiliates Indebtedness, including the Notes, and (ix) the Master Lease Agreement, to the extent not assigned to the Company pursuant to Section 2.5(b)(xx). Notwithstanding anything herein to the contrary, for purposes of determining whether there has been a breach or thereininaccuracy of any representation or warranty and determining the amount of any Losses that are the subject matter of any indemnification claim hereunder, each representation and warranty in each case, this Agreement shall be read without giving effect to any "qualification or limitation as to materiality", "knowledge" Material Adverse Effect or words of similar qualificationsimport contained in any such representation or warranty. Buyer shall indemnify the Member and save and hold the Member harmless from and against, and pay on behalf of or reimburse the Member for any and all Losses which the Member may suffer, sustain or become subject to as a result of, arising from, in connection with, by virtue of or related to (A) any breach or inaccuracy of any representation or warranty made by Buyer in this Agreement, including Article IV, or in any certificate furnished by or on behalf of Buyer pursuant to this Agreement, and (B) any breach or non-fulfillment of any covenant, agreement or other provision by Buyer under this Agreement.
(b) Cannabist and the Member shall not be liable to the Buyer Indemnified Parties for any Loss (i) pursuant to Section 6.2(a)(i) (other than with respect to the Fundamental Representations) until the aggregate amount of all Losses that Cannabist and the Member would, but for this clause (i), be liable for exceeds $10,000 in the aggregate (the “Basket Amount”); provided, however, that Cannabist and the Member shall then be liable for the full amount of such Losses back to dollar one; or (1ii) to the Stockholders extent the aggregate amount of all Losses previously indemnified by Cannabist and the Member pursuant to Section 6.2(a)(i) exceeds $11,879,518.80 (the “Cap”). Buyer shall not have any obligation be liable to indemnify Parent or Acquisition Sub from and against the Member for any Loss resulting from(A) pursuant to Section 6.2(a)(A) until the aggregate amount of all Losses that the Buyer would, but for this clause (A), be liable for exceeds the Basket Amount; provided, however, that Buyer shall then be liable for the full amount of such Losses back to dollar one; or (B) to the extent the aggregate amount of all Losses previously indemnified by Buyer pursuant to Section 6.2(a)(A) exceeds the Cap. Notwithstanding anything to the contrary contained herein, the Basket Amount and the Cap shall not apply with respect to any Loss arising out of, relating to, in from (and such Loss shall not be counted toward the nature of, Cap) fraud or caused by intentional misrepresentation.
(c) Any Losses for which the breach Buyer Indemnified Parties are entitled to indemnification pursuant to Section 6.2(a) shall be satisfied pursuant to Section 6.2(e).
(d) No Party shall be entitled to a rescission of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, Agreement (or any certificate delivered related agreements).
(e) Any payment to be made by Cannabist or the Member with respect to any indemnification obligations for Losses pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses Article VI shall be satisfied, in excess of $200,000 Buyer’s sole discretion, (i) by deducting such amount from the amount due to CC VA under the Promissory Note in the aggregate order of interest due and owing and then in the order of maturities, (after which ii) directly against Cannabist and the Stockholders shall be obligated to indemnify Parent Member on a joint and Acquisition Sub from and against Losses only to several basis, or (iii) by any combination of the extent they exceed $200,000); (2) the aggregate amount foregoing. Any payments to be payable made by any Party pursuant to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) Article VI shall be paid by delivery wire transfer of shares immediately available funds within five calendar days after the determination of Parent Common Stock such payment obligation.
(f) The amount of any Loss for which indemnification is provided under this Article VI shall be net of any amounts actually received by the Escrow Agent pursuant indemnified Party as a result of such Loss under insurance policies or other third party sources of reimbursement or indemnification (with such amount, for the avoidance of doubt, reduced by any fees or expenses (including any payment with respect to attorneys’ fees and disbursements and/or any increase in insurance premiums) incurred in obtaining such recovery; provided, however, that in no event shall any indemnified Party be required to seek any recovery under any insurance policy or otherwise as a condition to receiving indemnification under this Article VI.
(g) No Party shall be entitled to double recovery for any adjustments to consideration provided for hereunder or for any indemnifiable Losses even though such Losses, or any other incident, may have result from the breach of more than one of the representations, warranties and covenants, or any other indemnity, under this Agreement or any related agreement.
(h) All indemnification payments under this Agreement shall be treated as adjustments to the terms of the Escrow Agreement and Purchase Price for all relevant Tax purposes.
(i) The procedure for indemnification shall be borne pro rata by the Stockholders,as set forth in this Section 6.2 and Section 6.4.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Cannabist Co Holdings Inc.), Equity Purchase Agreement (Verano Holdings Corp.)
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article 6, agrees jointly from and severallyafter the Closing, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to the Company shall indemnify, defend and hold Parent Buyer and Acquisition Sub its Affiliates, Representatives, equity holders, members, managers and partners and their respective officerssuccessors and assigns (each, directors, employees, Affiliates and agents (collectively, the "Indemnitees"a “Buyer Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares any and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligationsLiabilities, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) ("each, a “Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, ”) suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of of:
(i) any breach of any representation or warranty of the failure Company contained in Article 3 (other than any Fundamental Representations and Warranties and any Statute of Limitations Representations and Warranties contained in Article 3) or in any certificate delivered by the Company to Buyer pursuant to this Agreement;
(ii) any breach of any Fundamental Representations and Warranties or any Statute of Limitations Representations and Warranties contained in Article 3;
(iii) without limiting Section 6.2(b)(i) or Section 6.2(b)(ii), any Excluded Liabilities; and
(iv) any breach by Company of its respective covenants or agreements contained herein that are to be performed on or following the Closing Date.
(b) Subject to the other provisions of this Article 6, from and after the Closing, the Buyer shall indemnify, defend and hold Company and its respective Affiliates and Representatives and their respective successors and assigns (each, a “Company Indemnitee”) harmless from any Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of:
(i) any breach of any representation or warranty made by any Stockholder Buyer contained in this Agreement, in any of the Transaction Documents Article 4 or in any certificate or other instrument or document provided to Parent or Acquisition Sub delivered by the Buyer pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or Agreement;
(ii) any breach or alleged breach by any Stockholders Buyer of any of their its respective covenants or agreements contained herein that are to be performed on and following the Closing Date; and
(iii) without limiting Section 6.2(a)(i) or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this AgreementSection 6.2(a)(ii), any of Liabilities arising following the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only Closing to the extent they exceed $200,000); (2) the aggregate amount to be payable related to the Indemnitees by operation or conduct of Business (including the Stockholders for claims ownership of indemnification under this Section 8.2(aits properties and other assets) shall not exceed an amount equal to 25 percent of following the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Zayo Group LLC)
General Indemnification. The indemnification required under any subsection of this Section 6.3 is in addition to the indemnification required under any other subsection of this Section 6.3 and to any rights to indemnification elsewhere provided for in this Agreement.
(aA) Each Stockholder, Seller hereby agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent Purchaser and Acquisition Sub its Affiliates (and their respective officers, directors, employees, Affiliates agents and agents (collectively, the "Indemnitees"representatives) harmless from an amount equal to and against and in respect of, and shall on demand pay or reimburse Purchaser and its Affiliates (xand their respective officers, directors, employees, agents and representatives) for any and all Damages, whether or not involving a fractionThird Party Claim:
(1) based upon or arising out of the breach of any representation or warranty or the non-performance, partial or total, of any covenant or agreement of Seller contained in this Agreement;
(2) based upon or arising out of the numerator items of which is the number of Shares litigation (and the denominator of facts underlying such litigation) which is are identified on Schedule 3.5(B); and
(3) based upon or arising with respect to the number of shares of Company Common Stock outstanding on compensation and employee benefits due, prior to the Closing Date multiplied by (y) Date, to any employee of the amount of all damagesSeller who provided services to the Company, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees any amounts for salary, wages and expensesincentive compensation, and any liabilities arising directly or indirectly from any employee benefit plan (as defined in Section 3(3) of ERISA) maintained, or contributed to, by the Seller.
("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder B) Purchaser hereby agrees to indemnify the Indemnitees indemnify, defend and hold Seller and its Affiliates (and its officers, directors, employees, agents and representatives of each) harmless from all Losses, suffered or paid, directly or indirectly, as a result and against and in respect of, in connection withand shall on demand pay or reimburse Seller and its Affiliates (and its officers, directors, employees, agents and other representatives) for any and all Damages whether or not involving a Third Party Claim, based upon or arising out of (i) the failure breach of any representation or warranty made by any Stockholder in this Agreementor the non-performance, in any of the Transaction Documents partial or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)total, or (ii) any breach or alleged breach by any Stockholders of any covenant or agreement of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders Purchaser contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,.
Appears in 2 contracts
Samples: Share Purchase Agreement (Procentury Corp), Share Purchase Agreement (Procentury Corp)
General Indemnification. (a) Each StockholderSubject to the other terms of this Section 10.2, agrees jointly Section 10.3, Section 10.9, and severallythe other limitations set forth herein, with each other Stockholderfrom and after the Closing, except with respect to representationsSeller shall indemnify the Buyer Indemnified Parties, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend save and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") each of them harmless from an amount equal and against and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses which any such Buyer Indemnified Party may suffer or become subject to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, arising from or in connection with, or arising out of :
(i) the failure any misrepresentation or breach of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents Company set forth in Article 7 or of Seller set forth in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date Article 6 of this Agreement and as of or any representation or warranty made in the Closing Date (unless made as of another datecertificate delivered by the Company pursuant to Section 2.10(a)(i), or ;
(ii) any breach or alleged breach by any Stockholders non-fulfillment of any covenant of their the Company under this Agreement or a breach or nonfulfillment by Seller of the covenants or agreements contained herein or thereinof Seller under this Agreement;
(iii) Seller Taxes; and
(iv) on a dollar-for-dollar basis, in to the extent not paid by Seller pursuant to Section 2.7, any Leakage for which Buyer was entitled to make a deduction to the Adjustment Amount pursuant to Section 2.3(a)(ii)(B).
(b) From and after Closing, Buyer shall indemnify the Seller Indemnified Parties and save and hold each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub of them harmless from and against and pay on behalf of or reimburse such Seller Indemnified Parties for any Loss resulting fromLosses which any such Seller Indemnified Party may suffer or become subject to as a result of, arising out of, relating to, from or in the nature of, connection with:
(i) any misrepresentation or caused by the breach of any such surviving representation or warranty or covenant set forth in Article 8 of the Stockholders contained in this Agreement, any of the Transaction Documents, Agreement or any representation or warranty made in the certificate delivered by Buyer pursuant to Section 2.10(b)(i); and
(ii) any breach or non-fulfillment of any covenant or agreement of Buyer under this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,any Related Agreement.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Civitas Resources, Inc.), Membership Interest Purchase Agreement (Civitas Resources, Inc.)
General Indemnification. (a) Each StockholderSubject to the limitations set forth in this Article 9 and elsewhere in this Agreement, agrees jointly from and severallyafter the Closing, Sellers (severally in accordance with each other StockholderSeller’s respective Pro Rata Percentage, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to not jointly) shall indemnify, defend and hold Parent Purchaser, the Company, each of their Affiliates, and Acquisition Sub and each of their respective officers, directors, employeesmanagers, Affiliates partners, members, employees and agents (collectivelyeach, the "Indemnitees"a “Purchaser Indemnitee”) harmless from an amount equal to (x) a fractionany and all judgments, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all claims, amounts paid in settlement, damages, fines, penalties, deficiencies, losses, liabilities, obligations, claims of any kind, interest Taxes, costs or expenses (includingincluding interest, without limitationcourt costs, reasonable fees of attorneys' fees , accountants and other experts or other reasonable out-of-pocket expenses) ("each, a “Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, ”) incurred as a result of, in connection with, or arising out of (i) the failure any breach as of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents Company or the Sellers contained Article 3 or Article 4 or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)delivered hereunder, or (ii) any breach or alleged breach by any Stockholders the Sellers of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that certificate delivered hereunder and (1iii) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused breach by the breach Company of any such surviving representation covenants or warranty agreements contained herein or covenant of in any certificate delivered hereunder required to be performed prior to Closing.
(b) Subject to the Stockholders contained limitations set for in this Article 9 and elsewhere in this Agreement, from and after the Closing, Purchaser shall indemnify, defend and hold the Sellers, each of their Affiliates, and each of their respective officers, directors, managers, partners, members, employees and agents (each a “Seller Indemnitee” and together with the Purchaser Indemnitee, the “Indemnitees”) harmless from any Loss incurred as a result of the Transaction Documents, (i) any breach as of any representation or warranty made by Purchaser contained Article 5 or in any certificate delivered hereunder, (ii) any breach by Purchaser of any of their covenants or agreements contained herein or in any certificate delivered hereunder, and (iii) any breach by the Company of any covenants or agreements contained herein or in any certificate delivered hereunder required to be performed after the Closing.
(c) The obligations to indemnify and hold harmless pursuant to this Agreement until Parent Section 9.2 shall survive the consummation of the transactions contemplated hereby for the applicable period set forth in Section 9.1, and no claim for indemnification hereunder may be made after the expiration of the applicable survival period; provided that if a proper Notice of Claim is delivered by Purchaser or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only Sellers’ Representative, as applicable, prior to the extent they exceed $200,000); (2end of such applicable survival period, then the claim(s) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) specified therein shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,survive until final resolution thereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Better Choice Co Inc.), Stock Purchase Agreement (Better Choice Co Inc.)
General Indemnification. (a) Each StockholderCannabist and CC VA, agrees jointly on a joint and severallyseveral basis (and the Members other than CC VA, with each other Stockholderon a several basis, except with respect solely to representationsthe extent the amount due to such Members under the Promissory Note is reduced pursuant to Section 6.5(e)), warranties shall indemnify the Buyer Indemnified Parties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend save and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") each of them harmless from an amount equal and against, and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses which any such Buyer Indemnified Party may suffer, sustain or become subject to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, arising from, in connection with, by virtue of or arising out of related to (i) the failure any breach or inaccuracy of any representation or warranty made by any Stockholder the Cannabist, the Company or the Members in this Agreement, in any of the Transaction Documents including Article III, or in any certificate furnished by or other instrument on behalf of the Company or document provided to Parent or Acquisition Sub the Members pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)Agreement, or (ii) any breach or alleged breach by any Stockholders non-fulfillment of any covenant, agreement or other provision by Cannabist, the Company or the Members under this Agreement, (iii) any Transaction Expenses to the extent not included in Final Transaction Expenses, (iv) any Transaction Payments to the extent not included in Final Transaction Payments, (v) any Indebtedness to the extent not included in Final Indebtedness, (vi) any Buyer Tax Losses, (vii) any information, calculation or determination set forth in the Funds Flow or instructions provided by Cannabist or the Company with respect to the allocation, payment or issuance of their covenants the Closing Cash Payment, amounts due under the Promissory Note or agreements contained Final Parent Stock Price or any alleged inaccuracy, discrepancy or impropriety with respect to any of the foregoing, (viii) Cannabist’s or its Affiliates Indebtedness, including the Notes, and (ix) the Master Lease Agreement, to the extent not assigned to the Company pursuant to Section 2.5(b)(xx). Notwithstanding anything herein to the contrary, for purposes of determining whether there has been a breach or thereininaccuracy of any representation or warranty and determining the amount of any Losses that are the subject matter of any indemnification claim hereunder, each representation and warranty in each case, this Agreement shall be read without giving effect to any "qualification or limitation as to materiality", "knowledge" Material Adverse Effect or words of similar qualificationsimport contained in any such representation or warranty. Buyer and Parent, on a joint and several basis, shall indemnify the Members and save and hold the Members harmless from and against, and pay on behalf of or reimburse the Members for any and all Losses which the Members may suffer, sustain or become subject to as a result of, arising from, in connection with, by virtue of or related to (A) any breach or inaccuracy of any representation or warranty made by Buyer or Parent in this Agreement, including Article IV, or in any certificate furnished by or on behalf of Buyer or Parent pursuant to this Agreement, and (B) any breach or non-fulfillment of any covenant, agreement or other provision by Buyer or Parent under this Agreement.
(b) Cannabist and CC VA shall not be liable to the Buyer Indemnified Parties for any Loss (i) pursuant to Section 6.2(a)(i) (other than with respect to the Fundamental Representations) until the aggregate amount of all Losses that Cannabist and CC VA would, but for this clause (i), be liable for exceeds $100,000 in the aggregate (the “Basket Amount”); provided, however, that Cannabist and CC VA shall then be liable for the full amount of such Losses back to dollar one; (1ii) to the Stockholders extent the aggregate amount of all Losses previously indemnified by Cannabist and CC VA pursuant to Section 6.2(a)(i) (other than with respect to Fundamental Representations) exceeds $35,000,000 (the “Cap”); or (iii) to the extent the aggregate amount of all Losses previously indemnified by Cannabist and CC VA pursuant to Section 6.2(a)(i) (including with respect to Fundamental Representations) exceeds $125,000,000. Buyer and Parent shall not have any obligation be liable to indemnify Parent or Acquisition Sub from and against the Members for any Loss resulting from(A) pursuant to Section 6.2(a)(A) until the aggregate amount of all Losses that the Buyer and Parent would, but for this clause (A), be liable for exceeds the Basket Amount; provided, however, that Buyer and Parent shall then be liable for the full amount of such Losses back to dollar one; or (B) to the extent the aggregate amount of all Losses previously indemnified by Buyer or Parent pursuant to Section 6.2(a)(A) exceeds the Cap. Notwithstanding anything to the contrary contained herein, the Basket Amount and the Cap shall not apply with respect to any Loss arising out of, relating to, in from (and such Loss shall not be counted toward the nature of, Cap) fraud or caused by intentional misrepresentation.
(c) Any Losses for which the breach Buyer Indemnified Parties are entitled to indemnification pursuant to Section 6.2(a) shall be satisfied pursuant to Section 6.2(e).
(d) No Party shall be entitled to a rescission of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, Agreement (or any certificate delivered related agreements).
(e) Any payment to be made by Cannabist or CC VA with respect to any indemnification obligations for Losses pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses Article VI shall be satisfied, in excess of $200,000 Buyer’s sole discretion, (i) by deducting such amount from the amount due to the Members, on a several basis, under the Promissory Note in the aggregate order of interest due and owing and then in the order of maturities, (after which ii) directly against Cannabist and CC VA on a joint and several basis, or (iii) by any combination of the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount foregoing. Any payments to be payable made by any Party pursuant to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) Article VI shall be paid by delivery wire transfer of shares immediately available funds within five calendar days after the determination of Parent Common Stock such payment obligation. Notwithstanding anything contained herein to the contrary, each Member acknowledges and agrees that in the event Buyer deducts Losses from the Promissory Note, each Member shall receive less than the amount such Member would have received of its Pro Rate Share of the Final Promissory Note Amount.
(f) The amount of any Loss for which indemnification is provided under this Article VI shall be net of any amounts actually received by the Escrow Agent pursuant indemnified Party as a result of such Loss under insurance policies or other third party sources of reimbursement or indemnification (with such amount, for the avoidance of doubt, reduced by any fees or expenses (including any payment with respect to attorneys’ fees and disbursements and/or any increase in insurance premiums) incurred in obtaining such recovery; provided, however, that in no event shall any indemnified Party be required to seek any recovery under any insurance policy or otherwise as a condition to receiving indemnification under this Article VI.
(g) No Party shall be entitled to double recovery for any adjustments to consideration provided for hereunder or for any indemnifiable Losses even though such Losses, or any other incident, may have result from the breach of more than one of the representations, warranties and covenants, or any other indemnity, under this Agreement or any related agreement.
(h) All indemnification payments under this Agreement shall be treated as adjustments to the terms of the Escrow Agreement and Purchase Price for all relevant Tax purposes.
(i) The procedure for indemnification shall be borne pro rata by the Stockholders,as set forth in this Section 6.2 and Section 6.4.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Cannabist Co Holdings Inc.), Equity Purchase Agreement (Verano Holdings Corp.)
General Indemnification. (a) Each StockholderIf, agrees jointly after the Closing Date, the Buyer (and severally, with each other Stockholder, except with respect to representations, warranties following the Closing the Surviving Company and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and any of the Subsidiaries) and/or their respective officers, directors, employees, Affiliates and affiliates and/or agents (collectively, each a "Buyer Indemnitee" and together the "Buyer Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all suffer any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, ) as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder RGHI in this Agreement, Agreement (whether or not contained in any of the Transaction Documents Article 3) or in any certificate or other instrument or document provided delivered to Parent or Acquisition Sub the Buyer pursuant to this Agreement Sections 6.2(a) and/or 6.2(b) to be true and correct in all respects as of the date of this Agreement or as of the Closing Date, provided that, solely for the purposes of this Section 8.2(a)(i), the failure of such representations and warranties to be true and correct as of the date of this Agreement or as of the Closing Date (unless made as of another date)shall be determined without regard to any materiality or Material Adverse Effect qualifiers contained therein, or (ii) any breach or alleged breach by any Stockholders RGHI of any of their its covenants or agreements contained herein which are to be performed by RGHI on or thereinbefore the Closing Date, in each case(iii) any breach by RGHI of any of its covenants or agreements contained herein which are to be performed by RGHI after the Closing Date, without giving effect to (iv) any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused breach by the breach Company of any such surviving representation of its covenants or warranty agreements contained herein which are to be performed by the Company on or covenant before the Closing Date, (v) any liabilities of the Stockholders contained in this Agreement, or relating to any of the Transaction Documents, Asset Manager Entities or any certificate delivered pursuant Losses arising from or in connection with the sale or other disposition of the Asset Manager Entities or (vi) any Taxes owed by the Company or any Subsidiary with respect to this Agreement until Parent any taxable periods ending on or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only prior to the extent they exceed $200,000); (2) Closing Date and the aggregate amount to be payable pre-Closing portion of all taxable periods beginning before and ending after the Closing Date, then, in any such case and subject to the Indemnitees by the Stockholders for claims other provisions of indemnification under this Section 8.2(a) shall not exceed an amount equal Article 8, RGHI agrees to 25 percent of the Acquisition Price; indemnify, defend and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,hold each Buyer Indemnitee harmless from any such Loss.
Appears in 2 contracts
Samples: Equity Purchase and Merger Agreement (Refco Inc.), Equity Purchase and Merger Agreement (Refco Information Services, LLC)
General Indemnification. (a) Each StockholderSubject to Section 7.1 of this Agreement, agrees the Company and the Principal, jointly and severally, with each other Stockholdershall indemnify and defend Buyer and its directors, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directorsaffiliates, employees, Affiliates agents and agents (collectivelyrepresentatives, the "Indemnitees") and shall hold each of them harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of against all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, any of them in connection with, with or arising out of resulting from:
(i) any misrepresentation or breach of, or inaccuracy in, any representation or warranty made by the failure Company in this Agreement, any Ancillary Agreement or any schedule or Disclosure Schedule furnished or to be furnished to Buyer in connection with or as contemplated by this Agreement;
(ii) any breach of any covenant made by the Company or the Principal in this Agreement, any Ancillary Agreement or any schedule or Disclosure Schedule furnished or to be furnished to Buyer in connection with or as contemplated by this Agreement; and
(iii) any Excluded Liability.
(b) Subject to Section 7.1 of this Agreement, Buyer shall indemnify the Company and the Principal and their directors, officers, affiliates, employees, agents and representatives, and shall hold each of them harmless from and against all Losses that are incurred or suffered by any of them in connection with or resulting from:
(i) any misrepresentation or breach of any representation or warranty made by any Stockholder Buyer in this Agreement, in any of the Transaction Documents Ancillary Agreement or in any certificate schedule furnished or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct furnished to the Company in all respects connection with or as of the date of contemplated by this Agreement and as of the Closing Date (unless made as of another date), or Agreement;
(ii) any breach or alleged breach by any Stockholders of any covenant made by Buyer in this Agreement, any Ancillary Agreement or any schedule furnished or to be furnished to the Company in connection with or as contemplated by this Agreement; and
(iii) the Assumed Liabilities and liabilities related to Buyer’s operation and ownership of their covenants the Acquired Assets arising after the Closing other than any Excluded Liability.
(c) Notwithstanding the foregoing, (i) neither the Company nor the Principal shall be obligated to provide any such indemnification for Losses pursuant to claims under Section 7.2(a)(i) hereof, and (ii) Buyer shall not be obligated to provide any such indemnification for Losses pursuant to claims under Section 7.2(b)(i) hereof, unless the aggregate amount that the Company, the Principal or agreements contained herein or thereinBuyer, as applicable, are entitled to recover in respect of all such claims exceeds $500,000.00 (the “Threshold”), in each case, without giving effect to any "materiality", "knowledge" or similar qualificationswhich case the Indemnitor will be liable only for the amount of such Losses in excess of the Threshold; provided, however, that the Threshold shall not apply to Losses arising in respect of claims for misrepresentations and breach of warranties relating to the first two sentences in Sections 3.1 and 4.1 hereof (Organization), Sections 3.2 and 4.2 hereof (Authority), or Section 3.8(a) (Title), all of which may be asserted without limitation. The maximum aggregate obligation of (i) the Company and/or the Principal hereunder for Losses pursuant to claims under Section 7.2(a)(i) and (ii) hereof and (ii) Buyer hereunder for Losses pursuant to claims under Section 7.2(b)(i) and (ii) hereof, shall not exceed $25,000,000.00 (the “Maximum”); provided, however, that the Maximum shall not apply to Losses arising in respect of claims for breach of covenants relating to Section 5.3 (Non-Compete) or to Buyer’s obligation to pay the Aggregate Purchase Price, all of which may be asserted without limitation. No limitation or condition of liability provided in this Article VII shall apply to any claim based on fraud.
(i) A party entitled to indemnification hereunder shall herein be referred to as an “Indemnitee.” A party obligated to indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.” As soon as is reasonable after an Indemnitee either (a) receives notice of any claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder (a “Third Party Claim”) or (b) sustains any Loss not involving a Third Party Claim or action which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under this Article VII, notify such Indemnitor in writing of such claim, action or Loss, as the case may be; provided, however, that, subject to Section 7.1, failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the extent Indemnitor is actually prejudiced in its defense of the action by such failure. Any such notification must be in writing and must state in reasonable detail the nature and basis of the claim, action or Loss, to the extent known. Except as provided in this Section 7.2, Indemnitor shall have the right using counsel reasonably acceptable to the Indemnitee, to contest, defend or litigate any such Third Party Claim; provided that the Indemnitor shall have notified the Indemnitee in writing of its intention to do so within fifteen (15) days of the Indemnitee having given notice of the Third Party Claim to the Indemnitor and such writing contains a statement that the Indemnitor reasonably believes in good faith that the Indemnitor has an obligation to provide indemnification under this Article VII with respect to such Third Party Claim (it being understood that such statement shall not prejudice Indemnitor’s right to later dispute its liability with respect to such Third Party Claim nor shall such statement or the fact that the Indemnitor assumed such defense of such Third Party Claim be admissible as evidence in any action between the Indemnitor and the Indemnitee); provided, further, that the Indemnitor’s right to contest, defend or litigate and right to continue to contest, defend and litigate, any such Third Party Claim, is subject to the continued satisfaction of the following conditions: (1) the Stockholders Indemnitor shall not have diligently contest, defend or litigate in good faith any obligation to indemnify Parent or Acquisition Sub from such Third Party Claim; and against any Loss resulting from, arising out of, relating to, in (2) the nature of, or caused assumption by the breach Indemnitor of such Third Party Claim could not reasonably be expected to cause a material adverse effect on the Indemnitee’s business. The Indemnitee shall have the right to participate in, and to be represented by counsel (at its own expense) in any such contest, defense or litigation conducted by the Indemnitor.
(ii) The Indemnitor, if it shall have assumed the defense of any such surviving representation or warranty or covenant of the Stockholders contained Third Party Claim as provided in this Agreement, any of (a) shall diligently contest, defend or litigate in good faith such Third Party Claim and (b) if the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses Indemnitor no longer reasonably believes in excess of $200,000 in good faith that the aggregate (after which the Stockholders shall be Indemnitor is obligated to indemnify Parent Indemnitee under this Article VII with respect to such Third Party Claim, the Indemnitor shall provide prompt written notice thereof to Indemnitee, at which time Indemnitor shall not be entitled, and Acquisition Sub from and against Losses only shall lose its right to contest, defend or litigate such Third Party Claim. The Indemnitor, if it shall have assumed the extent they exceed $200,000defense of any Third Party Claim as provided in this Agreement, shall not consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld or delayed); . The Indemnitor shall not, without the prior written consent of the Indemnitee, enter into any compromise or settlement which commits the Indemnitee to take, or to forbear to take, any action or which does not provide for a complete release by such third party of the Indemnitee. All expenses (2including attorneys’ fees) the aggregate amount to be payable to the Indemnitees incurred by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of Indemnitor in connection with the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) foregoing shall be paid by delivery the Indemnitor. No failure by an Indemnitor to acknowledge in writing its indemnification obligations under this Article VII shall relieve it of shares such obligations to the extent such obligations exist.
(iii) If an Indemnitee is entitled to indemnification against a Third Party Claim and the Indemnitor fails to assume the defense of Parent Common Stock such Third Party Claim pursuant to Section 7.2(d)(i), or the Indemnitor loses its right to contest, defend or litigate a Third Party Claim pursuant to Section 7.2(d)(i) and (ii), then the Indemnitor shall not be entitled, and shall lose its right, to contest, defend, litigate and settle such Third Party Claim, and the Indemnitee shall have the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in good faith, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim either before or after the initiation of litigation, at such time and upon such terms as the Indemnitee deems fair and reasonable, provided that at least ten (10) days prior to any such settlement, written notice of its intention to settle is given to the Indemnitor; provided, further, that if the Indemnitee seeks to contest, defend or litigate such Third Party Claim, it shall do so diligently and in good faith. The Indemnitor shall have the right to participate in (but not control), and to be represented by counsel (at its expense) in any such contest, defense or litigation conducted by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Indemnitee.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Brickman Group LTD)
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article VII, agrees the Selling Parties shall jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to severally indemnify, defend and hold Parent and Acquisition Sub each of Purchaser, the Company and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees"each a “Purchaser Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, diminution in value, obligations, actions, proceedings, claims of any kind, interest interest, costs or expenses (including, without limitation, including reasonable attorneys' ’ fees and expensesaccounting fees and related disbursements to experts, appraisers, consultants, witnesses, investigators and any other agents or representatives in the investigation or defense of a claim or in asserting, preserving, or enforcing an Indemnified Party’s rights hereunder) ("each, a “Loss"), except with respect ”) to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, extent suffered or paid, directly or indirectly, as a result of:
(i) any breach of any representation or warranty made by the Company, Xxxxx XX, any Stockholder or any LLC Member (A) contained in this Agreement or (B) in any certificate delivered by the Company or any Selling Party to Purchaser at Closing;
(ii) any breach of any covenant or agreement of the Company, Xxxxx XX or any Selling Party contained in this Agreement requiring performance at or prior to Closing;
(iii) any Indebtedness not taken into account in determining the Purchase Price;
(iv) [*****];
(v) Any of the transactions between the Company or Xxxxx XX on the one hand, and any of the Selling Parties or any of their respective Affiliates, on the other hand, that are identified on Section 7.02(a)(v) of the Company Disclosure Schedule, but only so long as Purchaser demands indemnification therefor on or prior to the [*****]; provided further that notwithstanding anything to the contrary in this Agreement, any claim for indemnification by reason of such transactions identified on Section 7.02(a)(v) of the Company Disclosure Schedule may only be brought pursuant to and subject to the limitations set forth in this Section 7.02(a)(v);
(vi) (A) Taxes (or the non-payment thereof) of any Company Entity for all Pre-Closing Tax Periods, (B) Taxes of any member of an affiliated, consolidated, combined or unitary group of which any Company Entity (or any predecessor of any of the foregoing) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulations §1.1502-6 or any analogous or similar state, local or non-U.S. Applicable Law, and (C) any and all Taxes of a Person (other than a Company Entity) imposed on the Purchaser or a Company Entity as a transferee or successor, by contract or pursuant to any Applicable Law, which Taxes arose in a Pre-Closing Tax Period or relate to an event or transaction occurring before the Closing;
(vii) any liability or claim under any Environmental Laws relating to any event, action or failure to act which occurred prior to the Closing Date (whether or not such Loss arises from or relates to a breach of any representation or warranty of the Company, Xxxxx XX, any Stockholder or any LLC Member in this Agreement);
(viii) any liability or claim arising from or relating to the Employment Entity, the prior employment of any of the Company’s employees by the Employment Entity, or any transaction or liability involving the Employment Entity or to which it is or was a party; or
(ix) any liability or claim arising from or relating to the automobile leases for the automobiles leased by the Company and used by Xx. Xxxx, Xxxx X. Xxxx and Xxxxxx X. Xxxx.
(b) Subject to the other provisions of this Article VII, each of Purchaser and the Company agrees to indemnify, defend and hold the Stockholders, the LLC Members and their respective Affiliates, officers, directors, employees and agents (each, a “Company Indemnitee”) harmless from any Loss suffered or paid, directly or indirectly as a result of, in connection with, or arising out of (i) the failure any breach of any representation or warranty made by Purchaser (A) contained in this Agreement or (B) in any Stockholder in certificate delivered to the Representative pursuant to this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders Purchaser of any of their the covenants or agreements contained herein, (iii) any breach by the Company or Xxxxx XX of any of its covenants or agreements contained herein which are to be performed by the Company or thereinXxxxx XX after the Closing Date, in each case, without giving effect (iv) Taxes (or the non-payment thereof) of any Company Entity for all tax periods following the Closing; and (v) any liability or claim under any Environmental Laws relating to any "materiality", "knowledge" or similar qualifications; provided, however, that Release which occurred following the Closing Date.
(1c) the Stockholders shall not have any obligation The obligations to indemnify Parent or Acquisition Sub from and against hold harmless pursuant this Section 7.02 shall survive the consummation of the transactions contemplated hereby for the applicable period set forth in Section 7.01, except for any claim for indemnification asserted in writing, stating in reasonable detail the basis of such claim prior to the end of such applicable period (which claims shall survive until the final resolution thereof).
(d) For all Tax purposes, to the extent permitted under Applicable Law, each of the Stockholders, the LLC Members, Purchaser and their respective Affiliates agrees to treat any indemnity payment under this Agreement as an adjustment to the Purchase Price, unless a final determination (as defined in Section 1313 of the Code) provides otherwise.
(e) For purposes of determining the amount of any Loss resulting fromarising from any breach or inaccuracy in any representation or warranty, arising out ofall references to the terms “material”, relating to“materially”, in the nature of“materiality” and “Material Adverse Effect”, or caused by the breach any similar terms, shall be ignored.
(f) For purposes of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of “Specified Representations” means the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses representations and warranties set forth in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,[*****]
Appears in 2 contracts
Samples: Stock and LLC Purchase Agreement, Stock and LLC Interest Purchase Agreement (Innophos Holdings, Inc.)
General Indemnification. (a) Each StockholderFollowing the Closing and subject to the other limitations in this Article VI, agrees jointly the Sellers shall indemnify and severallydefend the Buyer, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub the Companies (following the Closing) and their respective directors, managers, officers, directors, employees, consultants, representatives, agents and Affiliates and agents (collectively, the "“Buyer Indemnitees"”) and shall hold each of the Buyer Indemnitees harmless from an amount equal to (x) a fractionany and all Losses such Buyer Indemnitee may suffer, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest sustain or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result ofincur arising from, in connection with, or arising out of resulting from: (i) the failure any misrepresentation or breach of any representation or warranty made by each Company or each Seller in Article II or III of this Agreement (other than the Fundamental Representations and the Tax Representations) or any Stockholder other certificate delivered hereunder by (or on behalf of) a Company or a Seller, (ii) any misrepresentation or breach of any Fundamental Representation or Tax Representation made by each Company or each Seller, (iii) any breach of any covenant, agreement or undertaking made by each Seller in this Agreement, in (iv) any of the Transaction Documents or in Indemnified Tax, (v) any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement monetary payments required to be true made in connection with the SEIT Settlement Agreement except to the extent the Base Purchase Price was reduced by such amount, (vi) solely with respect to periods prior to the Closing, all liabilities relating to a Pre-Closing Tax Period for overtime, wage and correct in hour, workers’ compensation, unemployment insurance, disability benefits and all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or thereinother benefits, in each case, without giving effect arising as the result of the Company improperly classifying an employee prior to the Closing as an independent contractor, (vii) any amounts related to stock option, restricted stock unit, restricted stock or any other equity or equity based awards (including any employer Taxes related thereto) granted to any "materiality", "knowledge" employees of the Companies under any equity or similar qualifications; provided, however, that incentive award plans of Parent and (1viii) the Stockholders Retained Litigation.
(b) Following the Closing and subject to the other limitations in this Article VI, the Buyer and the Companies shall not have indemnify and defend the Sellers and their respective directors, officers, employees, consultants, representatives, agents and Affiliates (collectively, the “Seller Indemnitees”) and shall hold each of the Seller Indemnitees harmless from any obligation to indemnify Parent and all Losses such Seller Indemnitee may suffer, sustain or Acquisition Sub from and against any Loss resulting incur arising from, arising out of, relating to, in the nature ofconnection with, or caused by the resulting from (i) any misrepresentation or breach of any such surviving representation or warranty made by Buyer in Article IV of this Agreement (other than Fundamental Representations), (ii) any misrepresentation or breach of any Fundamental Representation made by the Buyer and (iii) any breach of any covenant of made by Buyer or the Stockholders contained Companies in this Agreement. Notwithstanding anything to the contrary in this Agreement, the Seller hereby waives any right to seek or obtain indemnification or contribution from any Company for Losses as a result of any breach by a Company of any representation, warranty or covenant contained in this Agreement or in any Related Document to which any Company or Seller is a party to.
(c) (i) With respect to the indemnity under Section 6.2(a)(i), the maximum aggregate obligation of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) Sellers shall not exceed an amount equal to 25 percent of $5,500,000 (the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,“Cap”);
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Select Medical Corp)
General Indemnification. (ai) Each StockholderIndemnification for the Benefit of the Company and the Purchasers by -------------------------------------------------------------------- the Shareholders. The Shareholders, agrees jointly and severallyseverally (except that T.S. Pan ---------------- shall not be responsible for any breaches of any covenant, with agreement or provision by J.J. Pan as described in clause (iii) below following the Closing and except that J.J. Pan shall not be responsible for any breaches of any covenant, agreement or provision by T.S. Pan as described in clause (iii) below following the Closing), shall indemnify each other Stockholder, except with respect to representations, warranties of the Company and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub the Purchasers and their respective Affiliates, shareholders (other than the Shareholders), partners, officers, directors, employees, Affiliates agents, representatives, successors and agents permitted assigns (collectively, the "IndemniteesCompany Parties") and save and hold --------------- each of them harmless from an amount equal to against and pay on behalf of or reimburse such Company Parties as and when incurred for any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, Tax, penalty, fine or expense, whether or not arising out of third party claims (x) a fractionincluding interest, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitationpenalties, reasonable attorneys' fees and expensesexpenses and all amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, "LossLosses"), except with respect to failures of representations and warranties and breaches of covenants which ------ any such Company Party may suffer, sustain or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectlybecome subject to, as a result of, in connection with, relating or arising out of incidental to or by virtue of: (i) the failure any breach of any representation or warranty made by of the Company or the Shareholders under this Agreement or any Stockholder in this Agreementof the Schedules or Exhibits attached hereto, or in any of the certificates or other instruments or documents furnished by the Company or the Shareholders pursuant to this Agreement; (ii) any nonfulfillment or breach of any covenant, agreement or other provision by the Company or any Shareholder under this Agreement or any of the Schedules and Exhibits attached hereto required to be performed or complied with by the Company or such Shareholder at or prior to the Closing; (iii) any nonfulfillment or breach of any covenant, agreement or other provision by such Shareholder under this Agreement or any of the Schedules or Exhibits attached hereto required to be performed or complied with by such Shareholder after the Closing; (iv) any claim by any Person (other than the Purchasers) with respect to, or arising as a result of, any Company Transaction Documents proposed prior to the Closing Date; or (v) any of the matters set forth on the Indemnification Schedule ------------------------ attached hereto; provided that the Shareholders shall not have any liability -------- ---- under clause (i) above (other than with respect to the representations and warranties contained in Paragraph 0X, Xxxxxxxxx 0X, Xxxxxxxxx 0X, Xxxxxxxxx 0X, Xxxxxxxxx 0X, Xxxxxxxxx 6F and the first and last sentences of Paragraph 5D) or clause (v) above unless the aggregate of all Losses relating thereto for which the Shareholders would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000, and then the Shareholders shall be liable only to the extent of such excess; and provided further that the Shareholders' -------- ------- aggregate liability under clause (i) above (other than with respect to the representations and warranties contained in Paragraph 0X, Xxxxxxxxx 0X, Xxxxxxxxx 0X, Xxxxxxxxx 0X, Xxxxxxxxx 0X, Xxxxxxxxx 6F and the first and last sentences of Paragraph 5D) and clause (v) above shall in no event exceed $12,000,000 (it being understood, however, that nothing in this Agreement (including this Paragraph 8B) shall limit or restrict any of the Company Parties' right to maintain or recover any amounts in connection with any action or claim based upon fraudulent misrepresentation or deceit). All indemnification payments for the benefit of the Company under this Paragraph 8B shall be deemed adjustments to the Repurchase Price set forth in Xxxxxxxxx 0X above. All indemnification payments for the benefit of any Purchaser under this Paragraph 8B shall be deemed to be adjustments to the Purchase Price set forth in Paragraph 1B above. In no event shall the Shareholders' obligations in respect of the indemnification provided for in this Paragraph 8B, or any expense reimbursement obligation of the Company provided for herein, be treated as subordinated indebtedness of the Company or as a restricted payment pursuant to any agreement to which the Company is a party or be otherwise restricted or deferred. If and to the extent any provision of this Paragraph 8B is unenforceable for any reason, each Shareholder hereby agrees to make the maximum contribution to the payment and satisfaction of any Loss for which indemnification is provided for in this Paragraph 8B which is permissible under applicable laws.
(ii) Indemnification for the Benefit of the Company by the Purchasers. Each ---------------------------------------------------------------- Purchaser shall, with respect to itself and not jointly with respect to any of the other Purchasers, indemnify the Company and its Affiliates, shareholders (including the Shareholders but excluding the Purchaser), officers, directors, employees, agents, representatives, successors and permitted assigns (collectively, the "Purchaser Indemnified Parties") and hold them harmless ----------------------------- against any Losses which the Purchaser Indemnified Parties may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (i) any breach of any representation or warranty of such Purchaser under this Agreement or any of the Schedules or Exhibits attached hereto, or in any certificate of the certificates or other instrument instruments or document provided to Parent or Acquisition Sub documents furnished by such Purchaser pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), Agreement; or (ii) any breach nonfulfillment or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any covenant, agreement or other provision by such surviving representation Purchaser under this Agreement or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent Schedules and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Exhibits attached hereto.
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article 10, agrees each Seller shall, severally but not jointly and severallybased on each Seller’s Pro Rata Share, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub each of Parent, Merger Sub, the Company and their respective officers, directors, employees, Affiliates partners, stockholders, Affiliates, agents and agents representatives, and any successors or assigns of any of the foregoing (collectivelyeach, the "Indemnitees") a “Purchaser Indemnitee”), harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, Taxes, obligations, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) ("Loss")collectively, except with respect to failures “Losses”) actually incurred or sustained that arise out of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paidresult, directly or indirectly, as a result of, in connection with, or arising out of from: (i) the failure any breach of any representation or warranty (other than the Tax Representations, which shall be governed exclusively by Section 7.2) made by any Stockholder the Company, the Sellers or the Representative (A) contained in this Agreement, in any of the Transaction Documents Agreement or (B) in any certificate or other instrument or document provided delivered by the Company to Parent or Acquisition and Merger Sub pursuant to this Agreement (provided that for the purposes of the foregoing clause (i), qualifications as to material, materiality, Company Material Adverse Effect or other qualifiers of similar import contained in such representations and warranties shall not be given effect for determining whether a breach of such representations and warranties has occurred or for purposes of calculating any Losses), (ii) any breach by the Sellers or the Representative or, prior to Closing, the Company, of any of their respective covenants or agreements contained herein (other than those relating to Taxes, which shall be governed exclusively by Section 7.2), (iii) any payment in respect of Appraisal Shares in excess of the consideration that otherwise would have been payable in respect of such Appraisal Shares in accordance with this Agreement had such Sellers not pursued their rights to appraisal under the DGCL, and any costs or expenses (including reasonable attorneys’ fees) in connection with any Proceeding in respect of any Appraisal Shares; (iv) the failure of any item set forth in the Merger Consideration Allocation Schedule to be accurate, true and correct in all respects as of the date Closing; (v) any claims by (x) any Seller relating to or arising out of the misallocation of Merger Consideration among the Sellers by the Company, the Representative or the Paying Agent (including payments made by Parent or the Surviving Corporation at the direction of the Representative or the Paying Agent and the misallocation of distributions to the Sellers out of the Escrow Amount, if any) and (y) any Person after the Effective Time for payment relating to equity securities of Company issued and outstanding immediately prior to the Effective Time (including the Eligible Options and RSUs), (vi) any Indebtedness of the Company that is not included in Closing Indebtedness and (vii) any Seller Expenses not taken into account in the Estimated Cash Merger Consideration or the Final Cash Merger Consideration. None of Parent, Merger Sub or the Surviving Corporation shall have any liability with respect to the allocation and payment of proceeds to the former holders of Common Stock and the former holders of Company Options and RSUs resulting from any payments made to such former holders pursuant to this Agreement. The Sellers and the Representative hereby covenant not to sxx Parent, Merger Sub or the Surviving Corporation for any Losses resulting from their respective reliance on such directions, which includes reliance on the Merger Consideration Allocation Schedule.
(b) Subject to the other provisions of this Agreement Article 10, from and as after the Closing, Parent and Merger Sub shall, and shall cause the Surviving Corporation to, indemnify, defend and hold each Seller and their respective officers, directors, employees, partners, stockholders, Affiliates, agents and representatives, and any successors or assigns of any of the Closing Date foregoing (unless made as of another dateeach a “Seller Indemnitee”), harmless from any Losses actually incurred or sustained that arise out of or result, directly or indirectly, from: (i) any breach of any representation or warranty made by Parent or Merger Sub (A) contained in this Agreement or (B) in any certificate or other instrument or document delivered to the Company or the Representative pursuant to this Agreement (provided that for the purposes of the foregoing clause (i), qualifications as to material, materiality, Parent Material Adverse Effect or other qualifiers of similar import contained in such representations and warranties shall not be given effect for determining whether a breach of such representations and warranties has occurred or for purposes of calculating any Losses); and (ii) any breach by Parent or alleged breach by any Stockholders Merger Sub of any of their its covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that herein.
(1c) the Stockholders shall not have any obligation The obligations to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered hold harmless pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in Section 10.2 shall survive the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders applicable periods set forth in Section 10.1, except for claims for indemnification under asserted prior to the end of an applicable period (which claims shall survive until final resolution thereof). It is the intention of the Parties that, other than in the case of fraud, all applicable statutes of limitations or other claims periods with respect to claims for Losses be shortened to the applicable claims periods and survival periods expressly set forth herein.
(d) Notwithstanding anything herein to the contrary, in the event that any Seller fails to execute this Agreement or a Joinder prior to the final resolution of any Loss, then each Seller that has executed this Agreement or a Joinder by such time shall assume its Pro Rata Share of all such non-executing Sellers’ indemnification obligations that would be covered by the Escrow Amount (and, with respect to claims limited by Section 10.5(a)(iii), the Stock Consideration until the 180th Day) pursuant to this Section 8.2(a) 10.2. Solely for purposes of the immediately preceding sentence, both the numerator and the denominator of the definition of “Pro Rata Share” shall be paid by delivery interpreted so as to give no effect to the number of shares of Parent Common Stock or Option Shares or RSU Shares held by each Seller that fails to execute this Agreement or a Joinder prior to the final resolution of any Loss, determined at the time such Losses are paid by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Seller Indemnitees.
Appears in 1 contract
General Indemnification. (ai) Each StockholderIndemnification for the Benefit of the Company and the Purchaser by the Sellers. Following the Closing, agrees the Sellers, jointly and severally, with each other Stockholdershall indemnify the Purchaser and its members, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates agents, representatives, successors and agents permitted assigns and the Company (collectively, the "IndemniteesSeller Indemnified Parties") and save and hold each of them harmless from an amount equal to against and pay on behalf of or reimburse such Seller Indemnified Parties as and when incurred for any direct or indirect loss, liability, demand, claim, action, cause of action, cost, damage (x) a fractionexcluding consequential damages and damages for lost profits), the numerator deficiency, Tax, penalty, fine or expense, whether or not arising out of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by third party claims (y) the amount of all damagescollectively, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("LossLosses"), except with respect to failures of representations and warranties and breaches of covenants which any such Seller Indemnified Party may suffer, sustain or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectlybecome subject to, as a result of, in connection with, relating or arising out of incidental to or by virtue of: (ia) the failure any facts or circumstances which constitute a breach of any representation or warranty made by any Stockholder in of the Company or the Sellers under this Agreement, or in any of the Transaction Documents certificates or other instruments or documents furnished by the Company or the Sellers pursuant to this Agreement; (b) any nonfulfillment or breach of any covenant, agreement or other provision by the Company or the Sellers under this Agreement required to be performed or complied with by the Company or the Sellers at or prior to the Closing; (c) any nonfulfillment or breach of any covenant, agreement or other provision by the Sellers under this Agreement required to be performed or complied with by the Sellers after the Closing; or (d) any claim by any Person (other than the Purchaser) with respect to, or arising as a result of, any Acquisition Proposal or Third Party Acquisition proposed prior to the Closing Date. If and to the extent any provision of this Section 9B is unenforceable for any reason, each Seller hereby agrees to make the maximum contribution to the payment and satisfaction of any Loss for which indemnification is provided for in this Section 9B which is permissible under applicable Laws. Notwithstanding anything contained herein, in no event shall the Company be required to provide indemnification or contribution for any obligation of the Sellers under this Section 9B(i).
(ii) Indemnification for the Benefit of the Sellers by the Company. Following the Closing, the Company shall indemnify the Sellers and their shareholders, officers, directors, employees, agents, representatives, successors and permitted assigns (collectively, the "Company Indemnified Parties") and hold them harmless against any Losses which the Company Indemnified Parties may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (a) any facts or circumstances which constitute a breach of any representation or warranty of the Purchaser under this Agreement, or in any certificate of the certificates or other instrument instruments or document provided to Parent or Acquisition Sub documents furnished by the Purchaser pursuant to this Agreement to be true and correct in all respects as Agreement; (b) any nonfulfillment or breach of any covenant, agreement or other provision by the date of Purchaser under this Agreement and as of Agreement; or (c) any matters which occur after the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant a result of the Stockholders contained in this Agreement, any direction or approval of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in Board following the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing Date.
Appears in 1 contract
General Indemnification. The Lessees jointly and severally agree, ----------------------- whether or not any of the transactions contemplated hereby shall be consummated, to assume liability for, and to indemnify, protect, defend, save and keep harmless each Indemnitee, on an After-Tax Basis, from and against, any and all Claims that may be imposed on, incurred by or asserted against such Indemnitee (whether because of action or omission by such Indemnitee or otherwise), whether or not such Indemnitee shall also be indemnified as to any such Claim by any other Person and whether or not such Claim arises or accrues prior to any Closing Date or after the Lease Termination Date, in any way relating to or arising out of:
(a) Each Stockholderany of the Operative Documents or any of the transactions contemplated thereby, agrees jointly and severallyany amendment, with each modification or waiver in respect thereof; or
(b) any Land, any Building or any part thereof or interest therein;
(c) the purchase, design, construction, preparation, installation, inspection, delivery, non-delivery, acceptance, rejection, ownership, management, possession, operation, rental, lease, sublease, repossession,
(1) Claims or penalties arising from any violation of law or in tort (strict liability or otherwise), (2) latent or other Stockholderdefects, except whether or not discoverable, (3) any Claim based upon a violation or alleged violation of the terms of any restriction, easement, condition or covenant or other matter affecting title to any Leased Property or any part thereof, (4) the making of any Alterations in violation of any standards imposed by any insurance policies required to be maintained by any Lessee pursuant to the Lease which are in effect at any time with respect to representationsany Leased Property or any part thereof, warranties (5) any Claim for patent, trademark or copyright infringement, and covenants that are made by or agreed to by such Stockholder individually, (6) Claims arising from any public improvements with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents any Leased Property resulting in any change or special assessments being levied against any Leased Property or any Claim for utility "tap-in" fees;
(collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (yd) the amount offer, issuance, sale or delivery of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses the Notes; (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (ie) the failure breach or alleged breach by any Lessee of any representation or warranty made by any Stockholder in this Agreement, it or deemed made by it in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, Operative Document or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount required to be payable to the Indemnitees delivered by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,any Operative Document;
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to Section 8.5 and the other provisions of this Article VIII, after the Closing, each of the Sellers, severally and not jointly, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent Parent, the Surviving Corporation, and Acquisition Sub and each of their respective officers, directors, employees, Affiliates directors and/or employees (each a “Parent Indemnitee” and agents (collectively, together the "“Parent Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' ’ fees and expenses) ("Loss"), except but excluding punitive, exemplary, special or consequential damages, or any damages measured by lost profits or a multiple of earnings; provided, however, that the foregoing exclusions shall not apply to the extent such damages are asserted by a third party in claims for indemnification with respect to failures Third Party Claims) (each a “Loss” and, collectively, “Losses”) as a result of or arising out of:
(i) the breach of any representation or warranty made by the Company or the Sellers in Article III (other than the breach of the Tax Representations, which shall be governed by Section 7.2) or by the applicable Seller in Article IV of this Agreement as of the date such representation or warranty was made (except for representations and warranties and breaches that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date),
(ii) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Sellers pursuant to this Agreement;
(iii) the breach by such Seller of any of its covenants or agreements contained herein that are made by or agreed required to be performed after the Closing Date (other than the breach by such Stockholder individuallySeller of any covenants or agreements set forth in Article VII, with respect which shall be governed exclusively by Section 7.2); or
(iv) any Seller Expenses or Indebtedness of the Company outstanding as of the Closing to which such Stockholder the extent not paid or satisfied by the Company at or prior to the Closing, or if paid by Parent at the Closing, in each case, to the extent not taken into account in the determination of the Closing Consideration.
(b) Subject to Section 8.5 and the other provisions of this Article VIII, after the Closing, Parent agrees to indemnify indemnify, defend and hold each of the Indemnitees Sellers and their respective officers, directors, employees, partners and members (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from all Losses, suffered or paid, directly or indirectly, any Loss as a result of, in connection with, of or arising out of (i) the failure breach of any representation or warranty made by any Stockholder Parent in Article V of this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders Parent of any of their its covenants or agreements contained herein or thereinthat are required to be performed after the Closing Date, in each case, without giving effect to and (iii) any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused breach by the breach Company of any such surviving representation of its covenants or warranty or covenant of agreements contained herein that are required to be performed after the Stockholders contained in Closing.
(c) All indemnification payments under this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders Article VIII shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only adjustments to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees Purchase Price except as otherwise required by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,applicable law.
Appears in 1 contract
Samples: Merger Agreement (Ennis, Inc.)
General Indemnification. (a) Each StockholderSubject to the other provisions of this ARTICLE IX, agrees from and after the Closing, each Seller shall (severally but not jointly and severallybased on each Seller’s Pro Rata Share), with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition each of Parent, Merger Sub and and/or their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees"each a “Purchaser Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any direct damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) ("“Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, ”) actually incurred as a result of, in connection with, or arising out of (i) the failure any breach of any representation or warranty made by the Company (A) contained in ARTICLE III or (B) in the certificate delivered pursuant to Section 6.2(e), (ii) any Stockholder in this Agreement, in breach by any Seller of any of its covenants or agreements contained herein which are to be performed after the Transaction Documents Closing Date, (iii) any claim made by any Seller relating to the calculations and determinations set forth on the Pre-Closing Statement of such Person’s rights with respect to the Total Merger Consideration or any part thereof or (iv) the potential material liability described as “Microsoft SPLA Matter” in Section 3.16(e) of the Company Disclosure Schedule (the “Potential Liability”).
(b) Subject to the other provisions of this ARTICLE IX, from and after the Closing, Parent shall, and shall cause the Surviving Company to, indemnify, defend and hold each Seller and their respective Affiliates, officers, directors, employees and agents (each a “Seller Indemnitee” and, together with any certificate Purchaser Indemnitee, an “Indemnified Party” and, collectively, the “Indemnified Parties”) harmless from any Loss actually incurred as a result of (i) any breach of any representation or other instrument or document provided to warranty made by Parent or Acquisition Merger Sub (A) contained in ARTICLE IV or (B) in the certificate delivered pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another dateSection 6.3(d), or (ii) any breach by Parent or alleged breach the Surviving Company (including by any Stockholders way of being the successor of Merger Sub and the Company) of any of their respective covenants or agreements contained herein which are to be performed by Parent or thereinthe Surviving Company, in each caseas applicable, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that after the Closing Date.
(1c) the Stockholders shall not have any obligation The obligations to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered hold harmless pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in Section 9.2 shall survive the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders applicable period set forth in Section 9.1, except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant asserted in good faith prior to the terms end of the Escrow Agreement and such applicable period (which such specific claims shall be borne pro rata by the Stockholders,survive until final resolution thereof).
Appears in 1 contract
General Indemnification. The Company (aprior to the Effective Time) Each Stockholderand, agrees after the Effective Time, each of the Indemnifying Securityholders, jointly and severally, with each other Stockholder, except with respect to representations, warranties covenant and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, agree to indemnify, defend defend, protect and hold Parent harmless, Parent, Newco and Acquisition Sub the Surviving Corporation and each of their respective officers, directors, employees, stockholders, representatives, assigns, successors and Affiliates (each a “Buyer Indemnified Party” and agents together the “Buyer Indemnified Parties”) from, against, and in respect of:
(a) all Liabilities, losses, claims, damages, punitive damages, causes of action, lawsuits, administrative proceedings (including informal proceedings), investigations, audits, demands, assessments, adjustments, judgments, settlement payments, deficiencies, Taxes, penalties, fines, interest (including interest from the date of such damages), diminution in value and costs and expenses (including reasonable attorneys’ fees and disbursements of every kind, nature and description) (collectively, “Damages”) suffered, sustained, incurred or paid by any of the "Indemnitees") harmless Buyer Indemnified Parties in connection with, constituting, resulting from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paidarising out of, directly or indirectly, as a result of, in connection with, or arising out of :
(i) the failure any misrepresentation, breach or inaccuracy of any representation or warranty made by any Stockholder of the Company set forth in this Agreement, in Agreement or any of other agreement or instrument furnished by the Transaction Documents or in any certificate or other instrument or document provided Company to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or Agreement;
(ii) any breach nonfulfillment or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation covenant or warranty agreement on the part of Company or covenant the Company Securityholders set forth in this Agreement or any other agreement or instrument furnished by the Company to Parent pursuant to this Agreement;
(iii) any Company Expenses;
(iv) any Taxes of the Stockholders contained Company or for which the Company is or becomes liable for any taxable period or portion thereof ending on or before the Closing Date;
(v) the acts and omissions of the Shareholders’ Representative (other than Damages arising solely from Claims brought by the Shareholders’ Representative on behalf of the Company Securityholders on or after the Closing Date in the Shareholders’ Representative’s capacity as agent for the Company Securityholders); or
(vi) any claim by a shareholder or former shareholder of the Company, or any other person or entity, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company; (ii) any rights of a shareholder (other than the right to receive the Merger Consideration pursuant to this Agreement), including any option, preemptive rights or rights to notice or to vote; (iii) any rights under the articles of incorporation or by-laws of the Company; (iv) any claim that his, her or its shares were wrongfully repurchased by the Company; or (v) any claim relating to any SAR, the exercise thereof or the SAR Plan.
(b) any and all Damages incident to any of the Transaction Documents, foregoing or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims enforcement of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,8.1.
Appears in 1 contract
General Indemnification. (a) Each StockholderSeller, agrees jointly on a joint and severallyseveral basis, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to shall indemnify, defend and hold Parent provide reimbursement to the Buyer and Acquisition Sub and their respective officers, directors, employees, its Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"“Buyer Indemnified Parties”), except with respect to failures and shall hold each of representations them harmless, from and warranties and breaches of covenants or agreements against all Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, any Buyer Indemnified Party in connection with, with or arising out of resulting from:
(i) the failure of any inaccuracy in, or breach of, any representation or warranty made by any Stockholder Seller or the Company in this Agreement, in any of the Transaction Documents Agreement or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to delivered in connection with this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or Agreement;
(ii) any breach or alleged breach non-fulfillment of any covenants, obligations or agreements made by any Stockholders Seller in this Agreement;
(iii) any Indebtedness, Seller Transaction Expenses and/or liability to any Person disclosed (or required to be disclosed) on Schedule 3.28 hereto not paid and discharged in full on or prior to the Closing;
(iv) any inaccuracy in the Funds Flow Memo, the allocations set forth in Exhibit B or the Closing Statement (except, in the case of the Closing Statement, for inaccuracies reflected in the adjustment to the Purchase Price contemplated by Section 1.4);
(v) any breach or non-fulfillment of the obligation set forth in Section 1.4(c)(ii); and
(vi) any Pre-Closing Taxes.
(b) The Buyer shall indemnify the Sellers (collectively, the “Seller Indemnified Parties”), and shall hold each of them harmless, from and against all Losses that are incurred or suffered by any Seller Indemnified Party in connection with or resulting from:
(i) any inaccuracy in, or breach of, any representation or warranty made by the Buyer in this Agreement or any certificate or instrument delivered in connection with this Agreement; and
(ii) any breach or non-fulfillment of any of their covenants covenants, obligations or agreements contained herein made by the Buyer in this Agreement.
(c) Notwithstanding the foregoing, the Sellers shall not be obligated to provide any indemnification for Losses pursuant to claims under Section 6.2(a)(i) hereof in respect of breaches of, or thereininaccuracies in, representations and warranties made by a Seller or by the Sellers unless the aggregate amount that the Buyer Indemnified Parties are entitled to recover in respect of all such claims exceeds $150,000 (the “Threshold”), in each case, without giving effect to any "materiality", "knowledge" or similar qualificationswhich case the Sellers will be liable for the full amount of the Losses; provided, however, that (1) the Stockholders Threshold shall not have any obligation apply to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out claims for indemnification based upon a breach of, relating toor inaccuracy in, any Fundamental Representation.
(d) In addition, except as otherwise provided below, the aggregate liability of the Sellers under Section 6.2(a)(i) hereof in respect of breaches of, or inaccuracies in, representations and warranties made by any Seller or by the Sellers shall not exceed, in the nature aggregate, $4,000,000 (the “Cap”); provided, however, that the Cap shall not apply to any breach of, or caused inaccuracy in, any of the Fundamental Representations.
(e) The maximum aggregate liability of the Sellers under Section 6.2(a) shall be an amount equal to the total amount (whether delivered in cash or Buyer Common Stock) that has been delivered by the breach Buyer pursuant to this Agreement (for the avoidance of doubt, including the Net Closing Payment, any increase to the Purchase Price, the Payoff Amounts and the Earn Out Payment (if made)). Notwithstanding the foregoing, except in the case of fraud, intentional misrepresentation or willful misconduct, each Seller shall only be liable to the Buyer Indemnified Parties for Losses up to an aggregate amount equal to such Seller’s pro rata share of the Purchase Price based on the percentage ownership of such Seller set forth in Exhibit A hereto, plus such Seller’s pro rata share of any such surviving Earn Out Payment that is paid by the Buyer.
(f) For purposes of determining the existence of any inaccuracy in, or breach of, representation or warranty under Section 6.2(a)(i), all qualifiers to knowledge, materiality, Material Adverse Effect and the like shall apply; provided, however that all such qualifiers shall be disregarded when calculating the amount of any Losses incurred in connection with any such inaccuracy in, or breach of, representation or warranty.
(g) Notwithstanding anything contained in this Article 6 to the contrary, no Survival Period or limitation of liability provided for in Section 6.1 or this Section 6.2 (including paragraphs (c), (d), (e) and (f) above) shall apply in the event of intentional misrepresentation or breach, fraud or willful misconduct.
(h) The right of any party to indemnification or other remedies based on any representation, warranty, covenant or obligation of any other party contained in or made pursuant to this Agreement shall not be affected by any investigation conducted by any Indemnitee (as defined below) with respect to, or any knowledge acquired (or capable of being acquired) by any Indemnitee at any time with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation.
(i) A party entitled to indemnification hereunder shall herein be referred to as an “Indemnitee.” A party obligated to indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.” In the event that any Indemnitee asserts a claim for indemnification to an Indemnitor which does not involve a Third Party Claim (as defined below), by providing written notice of such claim to Indemnitor (a “Claims Notice”), stating in reasonable detail the nature and basis of the Stockholders contained claim and the amount of the indemnifiable Losses, to the extent known, the Indemnitor may acknowledge and agree by notice to the Indemnitee in writing to satisfy such claim within twenty (20) days after receipt of such Claims Notice. In the event that the Indemnitor disputes such claim or the amount of the indemnifiable Losses, the Indemnitor shall provide written notice of such dispute to the Indemnitee within twenty (20) days after receipt of the Claims Notice, setting forth a reasonable basis of such dispute. Indemnitee and Indemnitor shall then negotiate in good faith to reach an agreement upon the Indemnitee’s right for indemnification under this Agreement and the amount of the indemnifiable Losses (the “Agreed Amount”). In the event that Indemnitee is a Buyer Indemnified Party and the claim for indemnification is pursuant to Section 6.2(a)(i) (other than in connection with a Fundamental Representation) or the Buyer otherwise elects to recover from the Holdback Amount with respect to such claim, Buyer shall instruct the Buyer’s transfer agent to cancel, retire and/or release shares of Buyer Common Stock having a dollar value equal to the Agreed Amount (as determined in accordance with Section 6.5(a)) to the Buyer. If Indemnitee and Indemnitor are unable to reach agreement, then any such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(j) In the event that the Indemnitor shall fail to provide written notice to the Indemnitee within twenty (20) days after receipt of a Claims Notice that the Indemnitor either acknowledges and agrees to pay such claim or disputes such claim, the Indemnitor shall be deemed to have acknowledged and agreed to pay such claim in full and to have waived any right to dispute such claim. Once the Indemnitor has acknowledged and agreed (or has been deemed to have acknowledged and agreed) to pay any claim pursuant to Section 6.2(i) or (i), as applicable, or once any dispute under Section 6.2(i) has been finally resolved in favor of indemnification by a court or other tribunal of competent jurisdiction, the Indemnitor shall pay the amount of such claim to the Indemnitee within ten (10) days after the date of acknowledgement or resolution, as the case may be, to such account and in such manner as is designated in writing by the Indemnitee; provided, however, that in the event that Indemnitee is a Buyer Indemnified Party and the claim is pursuant to Section 6.2(a)(i) (other than in connection with a Fundamental Representation) or the Buyer otherwise elects to recover from the Holdback Amount with respect to such claim, the Buyer shall instruct the Buyer’s transfer agent to cancel, retire and/or release shares of Buyer Common Stock having a dollar value equal to amount of such claim (as determined in accordance with Section 6.5(a)) to the Buyer.
(k) As soon as is practicable after an Indemnitee receives notice of any claim or the commencement of any action by any third party that such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder (a “Third Party Claim”), such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under Article 6 hereof, notify such Indemnitor in writing of such claim, action or Loss, as the case may be; provided, however, that failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the extent Indemnitor is actually prejudiced in its defense of the action by such failure. Any such notification must be in writing and must state in reasonable detail the nature and basis and amount of the claim, action or Loss, to the extent known, and contain a copy of all material written evidence thereof in Indemnitee’s possession.
(l) Except as provided in Section 5.4, the Buyer shall have the sole right to direct the defense of any Third Party Claim; provided, however, that the Buyer shall provide the Sellers’ Representative the opportunity to participate at the expense of the Sellers in, but not direct or conduct, any defense of such claim (except that the Buyer may withhold from the Sellers’ Representative such communications with its legal counsel to the extent that legal counsel to the Buyer advises that providing such communication could result in the loss of any attorney-client privilege or right under the work-product doctrine of the Buyer or any Buyer Indemnified Party in respect of such claim, after giving due consideration to any “community of interest” or similar privilege). The Buyer will have the right in its sole discretion to settle any such claim. If the Sellers’ Representative consents to any such settlement, which consent shall be deemed to have been given unless the Sellers’ Representative shall have failed to respond within twenty (20) Business Days after a written request for such consent by the Buyer, neither Sellers’ Representative nor any Seller will have any power or authority to object to the amount or validity of any claim for indemnity with respect to such settlement. Notwithstanding any other provision of this Agreement, any costs and expenses of investigation, settlement or defense, including court costs and reasonable attorney’s fees, incurred or suffered by the Transaction Documents, Buyer or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses other Buyer Indemnified Party in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees connection with any Third Party Claim that is settled by the Stockholders Buyer and which alleged matters that would, if adversely determined, give rise to a right of recovery for claims of Losses hereunder, will constitute Losses subject to indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,6.2.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Everyday Health, Inc.)
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article VIII, agrees jointly from and severallyafter the Closing, with each other StockholderPurchaser and its Affiliates, except with respect to representationsincluding, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectivelyfollowing the Closing, the "Indemnitees") Company and its Subsidiaries (each, a “Purchaser Indemnitee”), shall be indemnified and held harmless from an amount equal to (x) a fraction, the numerator solely out of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of Escrow Amount from any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, Losses suffered or paid, directly paid by any Purchaser Indemnitee (regardless of whether or indirectly, not such Losses relate to any third party claim) as a result of, in connection with, or arising out of (i) the failure any breach of any representation or warranty made by any Stockholder Seller in this Agreement, in any of Article III or the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub delivered by Seller pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another dateSection 6.2(d), or (ii) any breach or alleged breach by any Stockholders Seller of any of their the covenants or agreements contained herein made by Seller in this Agreement or thereinthe Transaction Documents that are required to be performed by Seller after the Closing.
(b) Subject to the other provisions of this Article VIII, in each casefrom and after the Closing, without giving effect Purchaser shall, and shall after the Closing, cause the Company to, indemnify and hold harmless Seller and its Affiliates (each, a “Seller Indemnitee”) from any Losses suffered or paid by any Seller Indemnitee (regardless of whether or not such Losses relate to any "materiality", "knowledge" third party claim) as a result or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the of (i) any breach of any such surviving representation or warranty made by Purchaser in Article IV or covenant in the certificate delivered by Purchaser pursuant to Section 6.3(c), (ii) any breach by Purchaser of the Stockholders contained in this Agreement, any of the covenants or agreements made by Purchaser in this Agreement or the Transaction DocumentsDocuments that are required to be performed by Purchaser after the Closing, or (iii) any certificate delivered pursuant claim or Action brought or threatened to this Agreement until Parent be brought against any Seller Indemnitee at any time on or Acquisition Sub have suffered Losses in excess of $200,000 in after the aggregate (after which Closing Date relating to actions taken by Purchaser or any Affiliate thereof, including the Stockholders shall be obligated to indemnify Parent and Acquisition Sub Company or its Subsidiaries, from and against Losses only to after the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (International Shipholding Corp)
General Indemnification. (a) Each Stockholder, agrees jointly The Shareholders covenant and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, agree to indemnify, defend defend, protect and hold harmless Parent and Acquisition Sub the Surviving Corporation and their respective officers, directors, employees, Affiliates shareholders, assigns, successors and agents affiliates from, against and in respect of:
(collectively, the "Indemnitees"i) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damagesliabilities, losses, liabilitiesclaims, obligationsdamages, claims punitive damages, courses of any kindactions, lawsuits, administrative proceedings (including informal proceedings), investigations, audits, demands, assessments, adjustments, judgments, settlement payments, deficiencies, penalties, fines, interest or (including interest from the date of such damages) and costs and expenses (including, including without limitation, limitation reasonable attorneys' fees and expensesdisbursements of every kind, nature and description) (collectively, "LossDamages")) suffered, except with respect sustained or incurred by the party or parties entitled to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder indemnification under this Section 7.1 (individually, with respect to which such Stockholder agrees to indemnify the Indemnitees an "Indemnified Party" and collectively, "Indemnified Parties") in connection with, resulting from all Losses, suffered or paidarising out of, directly or indirectly, as a result of, in connection with, or arising out of :
(i1) the failure any breach of any representation or warranty of the Company or the Principal Shareholders set forth in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Principal Shareholders in connection herewith;
(2) any non fulfillment of any covenant or agreement on the part of the Company or the Principal Shareholders in this Agreement;
(3) the business, operations or assets of the Company prior to the Closing Date, including without limitation, (i) the Pre-Closing Liabilities, and (ii) all taxes of the Company attributable to any period (or portion of any period) ending on or prior to the Closing Date, except as otherwise disclosed in the Company Financial Statements or the Company Schedules (other than taxes attributable to the changes in accounting methods on the Closing Date from that of a cash method accounting to an accrual method of accounting and the Company ceasing to be taxed as an "S" corporation after the Closing);
(i) any required pro rata refund to customers of annual product maintenance fees previously paid to the Company pursuant to any CAT Software License Agreements ("License Agreements") as a result of any customers refusing to consent to the assignment of any such License Agreements to the Surviving Corporation which consent was required pursuant to such Licensing Agreements ("Required Assignment") and (ii) any Damages incurred by Parent or the Surviving Corporation as a result of any third party to a non-disclosure agreement to which the Company is a party refusing to consent to any Required Assignment or waive any noncompliance of such nondisclosure agreements to the extent such Damages arises from disclosure made by on or prior to the Closing Date;
(5) any Stockholder Claims arising out of the Shareholder Materials;
(6) the actions or omissions of the Company's directors, officers, shareholders, employees or agents prior to the Closing Date; and
(ii) any and all Damages incident to any of the foregoing or to the enforcement of this Section 7.1(a). Notwithstanding any other provision in this Agreement, except as provided in any of Section 7.1(a)(i)(4), the Transaction Documents or in any certificate or other instrument or document provided Shareholders shall not be liable to Parent or Acquisition Sub pursuant the Surviving Corporation or have any indemnification duties to them for any Damages incurred as a result of a third party to any contract refusing to consent to any Required Assignment.
(b) Parent and Sub, jointly and severally, covenant and agree to indemnify, defend, protect and hold harmless the Shareholders from, against and in respect of:
(i) all Damages suffered, sustained or incurred by the Indemnified Parties in connection with, resulting from or arising out of, directly or indirectly:
(1) any breach of any representation or warranty of the Parent set forth in this Agreement to be true and correct or any certificate, document or instrument delivered by or on behalf of Parent in all respects as connection herewith;
(2) any nonfulfillment of any covenant or agreement on the part of Parent in this Agreement;
(3) the business, operations or assets of the date of this Agreement and as of Surviving Corporation after the Closing Date (unless made as of another dateexcept with respect to the Shareholder Product Receivable), including without limitation, all taxes of the Surviving Corporation attributable to any period (or portion of any period) ending after the Closing Date and with respect to all taxes attributable to the changes in accounting methods on or after the Closing Date from that of a cash method accounting to an accrual method of accounting and the Company ceasing to be taxed as an "S" corporation after the Closing; or
(4) the actions or omissions of the Surviving Corporation's directors, officers, shareholders, employees or agents after the Closing Date; and
(ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect and all Damages incident to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, foregoing or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims enforcement of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,7.1(b).
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the limitations contained in Section 11.2(c) the Sellers, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, agree to indemnify, defend and hold Parent and Acquisition Sub the Purchaser, its Affiliates and their respective Subsidiaries, officers, directors, employees, Affiliates and agents (each, a "Purchaser Indemnitee" and, collectively, the "Purchaser Indemnitees") harmless on an after-tax basis from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "LossLosses")) suffered, except with respect to failures incurred or paid as a result of representations and warranties and breaches (i) any breach by any of the Sellers of any of their covenants or agreements that are made by or agreed to by such Stockholder individuallycontained in this Agreement, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (iii) the failure of any representation or warranty (other than a breach of Section 3.10 with respect to Taxes which shall be governed by Section 8.7) made by any Stockholder in this Agreement, in any of the Transaction Documents or Sellers in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date Closing Date, or (iii) the payment of any and all stay bonuses to any employee of the Company (including, without limitation, to David Hannigan, Mike Bower, Roger Chase and Sandra Lembke) granted ox xx xxxxx xx thx Xxxxxxx Daxx: xx xxxxg undxxxxxxx xxxx, with respect to any obligation of the Sellers pursuant to this Section 11.2 (other than with respect to any representation or warranty contained in Article IV with respect to Magnolia or Article V with respect to Hawthorne Trust, or any agreement or covenant which relates to one Seller only), such obligation with respect to each Seller shall be limited to such Seller's Remedy Percentage.
(b) Purchaser will indemnify, defend and hold the Sellers and their respective affiliates. Subsidiaries. officers, directors, employees, and agents (each, a "Seller Indemnitee" and collectively, the "Seller Indemnitees") harmless on an after-tax basis from any Losses suffered, incurred or paid as a result of (i) any breach by Purchaser of any of its covenants or agreements contained in this Agreement or (ii) the failure of any representation or warranty made by the Purchaser in this Agreement to be true and correct in all respects as of the Closing Date Date.
(unless made as of another datec) Notwithstanding the provisions contained in Section 11.2(a), or (i) the Sellers shall be required to indemnify, defend and hold harmless each Purchaser Indemnitee under Section 11.2(a)(ii) only if the aggregate amount of all Losses for which all Purchaser Indemnitees are otherwise entitled to seek indemnification under Section 11.E(a)(11) exceeds One Hundred Thousand Dollars ($100,000) (the "Basket Amount"), whereupon such Losses shall be indemnified pursuant to Section 11.2(a)(ii), including, for greater certainty, the Basket Amount, and (ii) any breach or alleged breach by any Stockholders the maximum aggregate indemnification liability of any of their covenants or agreements contained herein or therein, in each case, without giving effect the Sellers to any "materiality", "knowledge" or similar qualificationsall Purchaser Indemnitees under Section 11.2(a)(ii) shall not exceed Two Million Seven Hundred Thousand Dollars ($2,700,000); provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders limitation on indemnification contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,this
Appears in 1 contract
General Indemnification. (a) Each StockholderBorrower shall, agrees jointly at its sole cost and severallyexpense, with each other Stockholderprotect, except with respect to representationsdefend, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend release and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, harmless the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub Indemnified Parties from and against any Loss resulting from, and all actual Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of, of or in any way relating to, in the nature of, to any one or caused by the breach of any such surviving representation or warranty or covenant more of the Stockholders contained in following: (a) the execution or delivery of this Agreement, any other Loan Document or any other agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or their respective obligations hereunder or thereunder or the consummation of the Transaction Documentstransactions contemplated hereby or thereby; (b) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (d) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (e) any failure of the Property to be in compliance with any Applicable Law; (f) any and all claims and demands whatsoever which may be asserted against Lender or Agent by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any certificate delivered pursuant Lease; (g) the payment of any commission, charge or brokerage fee to this Agreement until Parent anyone (other than a broker or Acquisition Sub have suffered Losses other agent retained by Lender or Agent) which may be payable in excess connection with the funding of $200,000 the Loan evidenced by the Note and secured by the Security Instrument and the Pledge Agreement; (h) the holding or investing of the funds on deposit in the aggregate (after which Accounts or the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to performance of any work or the extent they exceed $200,000); (2) disbursement of funds in each case in connection with the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all Reserve Funds. Any amounts payable to Indemnified Parties by reason of the Indemnitees by the Stockholders for claims for indemnification under application of this Section 8.2(a) 11.1 shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement become immediately due and payable and shall be borne pro rata bear interest at the Default Rate from the date loss or damage is sustained by the Stockholders,Indemnified Parties until paid.
Appears in 1 contract
Samples: Loan Agreement (CaliberCos Inc.)
General Indemnification. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) Each Stockholderany accident, agrees jointly and severallyinjury to or death of persons or loss of or damage to property occurring in, with each other Stockholder, except with respect to representations, warranties and covenants that are made by on or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, about the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding Property or any part thereof or on the Closing Date multiplied adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (d) any failure of the Property to be in compliance with any applicable Legal Requirements; (e) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease or any Property Document; (yf) the amount of all damages, losses, liabilities, obligations, claims payment of any kindcommission, interest charge or expenses brokerage fee to anyone (including, without limitation, reasonable attorneys' fees and expensesother than a broker or other agent retained by Lender) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, may be payable in connection withwith the funding of the Loan evidenced by the Note and secured by the Mortgage; (g) any breach by Borrower of its obligations under, or arising out any material misrepresentation by Borrower contained in, this Agreement or the other Loan Documents, (h) the use or intended use of the proceeds of the Loan and/or (i) the failure holding or investing of the funds on deposit in the Reserve Funds or the performance of any representation work or warranty made by any Stockholder in this Agreement, in any the disbursement of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, funds in each casecase in connection with the Reserve Funds, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only except to the extent they exceed $200,000); (2) that such Indemnified Liabilities arose from the aggregate amount to be payable to the Indemnitees by the Stockholders for claims gross negligence, illegal acts, fraud or willful misconduct of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all Lender. Any amounts payable to Lender by reason of the Indemnitees by the Stockholders for claims for indemnification under application of this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement become immediately due and payable and shall be borne pro rata bear interest at the Default Rate from the date loss or damage is sustained by the Stockholders,Lender until paid.
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the limitations in Section 7.2(c), agrees Seller and each Shareholder shall, jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent harmless Buyer and Acquisition Sub and their respective officersits members, managers, stockholders, directors, officers, Affiliates, employees, Affiliates agents and agents representatives (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"“Buyer Indemnified Parties”), except with respect to failures of representations from and warranties and breaches of covenants or agreements against all Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, any of them in connection with, with or arising out resulting from each of the following:
(i) any misrepresentation or breach of, or inaccuracy in, any representation or warranty made by Seller or the failure Shareholders in this Agreement or any Ancillary Agreement;
(ii) any breach of any covenant made by Seller or the Shareholders in this Agreement or any Ancillary Agreement;
(iii) the Retained Liabilities;
(iv) any matters identified on Schedule 7.2(a)(iv); or
(v) the enforcement by Buyer Indemnified Parties of any indemnification rights under this Agreement.
(b) Subject to the limitations in Section 7.2(c), Buyer shall indemnify, defend and hold harmless Seller, each Shareholder, and their respective agents and representatives (collectively, the “Seller Indemnified Parties”) from and against all Losses that are incurred or suffered by any of them in connection with or resulting from each of the following:
(i) any misrepresentation or breach of any representation or warranty made by any Stockholder Buyer in this Agreement or any Ancillary Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or ;
(ii) any breach of any covenant made by Buyer in this Agreement or alleged any Ancillary Agreement;
(iii) any Assumed Liability; provided that there shall be no indemnification under this Section 7.2(b) for any Losses for which Buyer is entitled to indemnification pursuant to Section 7.2(a); or
(iv) the enforcement by Seller Indemnified Parties of their indemnification rights under this Agreement.
(c) Notwithstanding the foregoing and subject to the proviso at the end of this paragraph and the terms of this Article VII, (i) Seller and the Shareholders shall not be obligated to provide any indemnification for Losses pursuant to claims (other than Third Party Claims) for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i) unless the aggregate amount of Losses incurred by Buyer Indemnified Parties with respect to such breaches of representations and warranties exceeds $13,700 (the “Threshold”), in which case Seller and the Shareholders will be liable for all Losses without regard to the Threshold, and (ii) Buyer shall not be obligated to provide any such indemnification for Losses pursuant to claims (other than Third Party Claims) for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), unless the aggregate amount of Losses incurred by Seller Indemnified Parties with respect to such breaches of representations and warranties exceeds the Threshold, in which case Buyer will be liable for all Losses without regard to the Threshold. The maximum aggregate obligation of (i) Seller and Shareholders for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i) shall not exceed $478,000 (the “Cap”), and (ii) Buyer for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed the Cap. Neither the Threshold nor the Cap shall apply to Losses arising in respect of claims for misrepresentations and breach of the Fundamental Representations.
(d) In no event shall the limitations set forth in Section 7.2(c) apply to Losses suffered or incurred by any Stockholders of any of their covenants Indemnified Party as a result of, or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, (A) the matters set forth in the nature ofSections 7.2(a)(ii) through 7.2(a)(v), or caused 7.2(b)(ii) through (iv), or (B) any fraud or intentional misrepresentation by a party.
(e) The representations and warranties in this Agreement and the Ancillary Agreements shall not be affected or diminished by, and no right of indemnification hereunder shall be limited by reason of any investigation or audit conducted before or after the Closing or the knowledge of any party of any breach of a representation, warranty, covenant or agreement by the other party at any time, or the decision of any party to complete the Closing.
(f) For purposes of determining the existence of any misrepresentation or breach of warranty, and calculating the amount of any Losses incurred in connection with any such surviving representation misrepresentation or warranty or covenant breach of the Stockholders contained in this Agreementwarranty, any of the Transaction Documents, and all references to material or any certificate delivered pursuant to this Agreement until Parent Material Adverse Effect (or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(aother correlative terms) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,disregarded.
Appears in 1 contract
Samples: Asset Purchase and Contribution Agreement (Andover National Corp)
General Indemnification. From and after the Effective Time, subject to the other provisions of this Article 10, each Seller (atogether with his, her or its successors, heirs and assigns, a “Seller Indemnitor”) Each Stockholdershall, agrees severally but not jointly and severallybased on each Seller’s Pro Rata Share, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub each of Parent, Merger Sub, the Company, the Surviving Corporation and their respective officers, directors, employees, Affiliates partners, shareholders, Affiliates, agents and agents representatives, and any successors or assigns of any of the foregoing (collectivelyeach, the "Indemnitees") a “Purchaser Indemnitee”), harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, Taxes, obligations, claims of any kind, judgments, awards, penalties, costs interest or expenses (including, without limitation, including reasonable attorneys' ’ fees, other professionals’ and experts’ fees, costs of investigation and court costs (including such fees and expensescosts incurred in connection with investigating, defending against or settling any Third Party Claim or in connection with enforcing the provisions of this Article 10)) ("Loss")collectively, except with respect to failures of representations and warranties and breaches of covenants “Losses”) incurred or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paidthat, directly or indirectly, as a result arise out of, result from or are in connection with, or arising out of : (i) the failure any breach of any representation or warranty (other than those relating to Taxes, which shall be governed by Section 7.2) made by any Stockholder the Company or the Sellers (A) contained in this Agreement, in any of the Transaction Documents Agreement or (B) in any certificate or other instrument or document provided delivered by the Company to Parent or Acquisition and Merger Sub pursuant to this Agreement (provided that for the purposes of the foregoing clause (i), qualifications as to material, materiality, Company Material Adverse Effect or other qualifiers of similar import contained in such representations and warranties shall not be given effect for purposes of calculating any Losses or for determining whether a breach of such representations and warranties has occurred), (ii) any breach by the Company of the Sellers prior to the Closing of any of their respective covenants, obligations or agreements contained herein (other than those relating to Taxes, which shall be governed by Section 7.2), (iii) any payment in respect of Dissenter Shares in excess of the consideration that otherwise would have been payable in respect of such Dissenter Shares in accordance with this Agreement had such Sellers not pursued their rights to dissent under Washington Law, and any costs or expenses (including reasonable attorneys’ fees) in connection with any Proceeding in respect of any Dissenter Shares; (iv) the failure of any item set forth in the Merger Consideration Allocation Schedule to be accurate, true and correct in all respects as of the date Closing; (v) any claims by (x) any Seller relating to or arising out of this Agreement the misallocation of Merger Consideration among the Sellers by the Company (including payments made by Parent or the Surviving Corporation in accordance with the Merger Consideration Allocation Schedule) and (y) any Person after the Effective Time for payment relating to equity securities of Company issued and outstanding immediately prior to the Effective Time (including the Eligible Options), (vi) any Indebtedness of the Company outstanding as of the Closing Date (unless made as Adjustment Time to the extent not taken into account in the calculation of another datethe Estimated Merger Consideration or Final Merger Consideration or addressed in connection with the resolution of any Notice of Disagreement in accordance with Section 2.10(b)(ii), or (iivii) any breach Seller Expenses not taken into account in the calculation of the Estimated Merger Consideration or alleged breach by any Stockholders the Final Merger Consideration or addressed in connection with the resolution of any Notice of their covenants Disagreement in accordance with Section 2.10(b)(ii), (viii) any retention amount paid by Parent or agreements contained herein the Surviving Corporation under the Company D&O Tail Policy, and/or (ix) any fraud or thereinintentional misrepresentation by or on behalf of the Company or any Seller (a “Fraud Claim”). None of Parent, in each case, without giving effect to any "materiality", "knowledge" Merger Sub or similar qualifications; provided, however, that (1) the Stockholders Surviving Corporation shall not have any obligation liability with respect to indemnify Parent or Acquisition Sub the allocation of proceeds to the former holders of Capital Stock and the former holders of Company Options resulting from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any payments made to such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered former holders pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Agreement.
Appears in 1 contract
Samples: Merger Agreement (SYNAPTICS Inc)
General Indemnification. (a) Each StockholderThe Stockholder shall indemnify and defend each of the Companies, agrees jointly Buyer and severallyeach of their respective directors, with officers and employees and shall hold each other Stockholder, except with respect to representations, warranties of them harmless from and covenants against all Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator any of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, them in connection with, with or arising out of resulting from:
(i) the failure any breach of any representation or warranty made by any the Companies or the Stockholder in this Agreement or any Ancillary Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or ;
(ii) any breach or alleged breach by any Stockholders of any covenant or agreement made by the Stockholder in this Agreement or any Ancillary Agreement, whether such covenant of their covenants the Stockholder requires performance prior to or agreements contained herein after the Closing, or therein, any breach of any covenant made by the Companies in each case, without giving effect this Agreement or any Ancillary Agreement which covenant of the Companies required performance prior to the Closing;
(iii) any "materiality", "knowledge" Retained Liabilities; or
(iv) any costs relating to or similar qualificationsincurred in connection with the enforcement of the Final Award or the events arising from the facts and circumstances underlying the dispute which led to such Final Award; provided, however, that (1A) the Stockholders Stockholder shall not have any obligation to indemnify Parent or Acquisition Sub Buyer from and against Losses resulting from, or arising out of, relating to, in the nature of, or caused by the breach of any Loss representation or warranty of either of the Companies or the Stockholder until Buyer has suffered Losses by reason of all such breaches in excess of $75,000 (the “Deductible”), after which point the Stockholder will be obligated to indemnify Buyer from and against all such Losses, in excess of the Deductible and (B) there will be an aggregate ceiling equal to $3,600,000 (the “Cap Amount”) on the obligation of the Stockholder to indemnify Buyer from and against Losses resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained Companies and the Stockholder; provided further however, that the limitations in this Agreementparagraph shall not apply to Losses arising in respect of claims for breach of representations and warranties relating to Section 3.2 (relating to capitalization), Section 3.1 (relating to organization), Section 3.3 (relating to subsidiaries), Section 3.5 (relating to authority), Section 3.6(b) (relating to immigration matters), Section 3.24 (relating to employee benefits matters), Section 3.10 (relating to taxes), Section 3.26 (relating to brokers), Section 4.1 (relating to ownership of shares), Section 4.2 (relating to authority), Section 4.5 (relating to brokers).
(b) Without limiting any other remedies available at law or in equity, Buyer shall have the right to set off against any payments due and owing from Buyer under the Employment Agreements and the Earn-Out. From and after the Closing, any indemnification to which Buyer is entitled under this Agreement as a result of any Losses incurred under Sections 9.2(a) shall be satisfied first by set off against payments owed under the Employment Agreements (whether or not then due) and second by set off against any payments owed with respect to the Earn-Out; provided, however, to the extent it is later finally determined by a court of competent jurisdiction or by the agreement of the Transaction Documentsparties that any amount that was so set off, or any certificate delivered pursuant portion thereof, was not due and owing to Buyer, Buyer shall pay such amounts to the Stockholder promptly after such final determination.
(c) No limitation or condition of liability provided in this Agreement until Parent Article XI shall apply to any breach of any representation or Acquisition Sub have suffered Losses in excess warranty contained herein if such breach of $200,000 in representation or warranty was made willfully or with intent to deceive.
(d) Buyer shall indemnify the aggregate (after which the Stockholders Stockholder and shall be obligated to indemnify Parent and Acquisition Sub hold each of them harmless from and against all Losses only that are incurred or suffered by any of them in connection with or resulting from:
(i) any breach of any representation or warranty made by Buyer in this Agreement or any Ancillary Agreement; or
(ii) any breach of any covenant or agreement made by Buyer in this Agreement or any Ancillary Agreement; provided however, that indemnification obligations of the Buyer for breaches of representations and warranties pursuant to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a9.2(d)(i) shall not exceed the Cap Amount, provided further however, that the limitations in this paragraph shall not apply to Losses arising in respect of claims for breach of representations and warranties relating to Section 5.1 (relating to organization), Section 5.2 (relating to authorization) or Section 5.4 (relating to brokers).
(e) A party entitled to indemnification hereunder shall herein be referred to as an amount equal “Indemnitee.” A party obligated to 25 percent indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.” As soon as is reasonable after an Indemnitee either (i) receives notice of any claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder or (ii) sustains any Loss not involving a third-party claim or action which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under Article IX hereof, notify such Indemnitor in writing of such claim, action or Loss, as the case may be; provided, however, that failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the extent Indemnitor is actually prejudiced in its defense of the Acquisition Price; action by such failure.
(f) The Stockholder and Buyer agree that for purposes of (i) determining whether or not there has been a breach of a representation or warranty by either of the Companies, the Stockholder or Buyer and (3ii) all amounts payable calculating the amount of Losses incurred arising out of or relating to any such breach, the references to Material Adverse Effect or other materiality qualifications (or correlative terms), including as expressed in accounting concepts such as GAAP, shall be disregarded.
(g) No right of indemnification hereunder shall be limited by reason of any investigation or audit conducted before or after the Closing or the knowledge of any party of any breach of a representation, warranty, covenant or agreement by the other party at any time, or the decision of any party to complete the Closing. Notwithstanding anything to the Indemnitees by contrary herein, Buyer shall have the Stockholders for claims for indemnification under right, irrespective of any knowledge or investigation of Buyer, to rely fully, and is relying fully, on the representations, warranties and covenants of each of the Companies and the Stockholder contained herein.
(h) No limitation or condition of liability provided in this Section 8.2(a) Article IX shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant apply to the terms indemnification obligation of the Escrow Agreement and shall be borne pro rata by the Stockholders,Stockholder set forth in Section 8.2 hereof.
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the other terms of this Section 5.2 and the other limitations set forth in this Agreement (including the limitations set forth under Section 5.2(e)), agrees jointly Contributor shall indemnify the Buyer Indemnified Parties, and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend save and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") each of them harmless from an amount equal to (x) a fraction, the numerator and against and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, Buyer Indemnified Party may suffer as a result of, arising from or in connection with, or arising out of :
(i) the failure any misrepresentation or breach of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or Contributor set forth in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or Article III; and
(ii) any breach or alleged breach by any Stockholders non-fulfillment of any covenant of their covenants the Contributor under this Agreement.
(b) Any Person making a claim for indemnification under this Section 5.2 (an “Indemnitee”) shall notify the indemnifying party (the “Indemnitor”) of the claim in writing after receiving written notice of any Proceeding or agreements contained herein or therein, in each case, without giving effect other claim against it (if by a third party). Any such notice shall describe both the basis for and amount of the claim to any "materiality", "knowledge" or similar qualifications; providedthe extent such amount is known and quantifiable. The failure to so notify the Indemnitor shall not, however, relieve the Indemnitor of its obligations under this Section 5.2, except to the extent that the Indemnitor is prejudiced by the failure to give timely notice. The Indemnitor shall be entitled to participate in the defense of such Proceeding or other claim giving rise to an Indemnitee’s claim for indemnification at the Indemnitor’s expense. Subject to the limitations set forth below, the Indemnitor shall be entitled to assume the control of the defense of any claim by appointing counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense. Notwithstanding the foregoing: (1i) the Stockholders Indemnitee shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose provided that the fees and expenses of such separate counsel shall be borne entirely by the Indemnitee; (ii) the Contributor shall not have be entitled to assume control of such defense if (A) the claim for indemnification relates to or arises in connection with any obligation criminal Proceeding, (B) the claim involves a material customer or material vendor of the Company Group, (C) the claim primarily seeks an injunction or other equitable relief against a Buyer Indemnified Party or (D) Losses resulting from such claim could exceed the amount of indemnification available to indemnify Parent the Buyer Indemnified Party under this Agreement; and (iii) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee (which shall not be unreasonably withheld, conditioned or Acquisition Sub delayed) before entering into any settlement of a claim. Notwithstanding the foregoing but subject to the limitations set forth in this Section 5.2, the Indemnitor may settle or consent to the entry of judgment in respect of such claim without the consent of the Indemnitee; provided: (i) such settlement or judgment is solely for money damages; (ii) includes a release of the Indemnitee from any further liability in respect of such claim; and (iii) does not contain an admission of wrongdoing on the part of the Indemnitee. If the Indemnitor makes any payments on any claim pursuant to this Section 5.2, the Indemnitor shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnitee to any insurance benefits or other claims of the Indemnitee with respect to such claim.
(c) Any indemnification of the Indemnitee pursuant to this Section 5.2 shall be effected within 15 days after a determination of the indemnified claim (the “Applicable Claim”) that is binding on the Indemnitor by, at the Indemnitor’s option in its sole discretion, (i) a wire transfer of immediately available funds from the Indemnitor to an account designated in writing by the Indemnitee or (ii) a cancellation of Series A Preferred Units (as defined in the Amended Pike Holdings LLCA) in an amount equal (in value) to the amount owed by the Indemnitor in respect of the Applicable Claim, valuing the Series A Preferred Units at the Per Series A Preferred Unit Price. To the extent the Indemnitor elects to exercise its rights under clause (ii) of the preceding sentence and provides notice to Pike Holdings in connection therewith, Pike Holdings shall, automatically and without any further action by any Person and in accordance with the terms of the Amended Pike Holdings LLCA, cancel the Series A Preferred Units (as defined in the Amended Pike Holdings LLCA) held by the Indemnitor (or their applicable Affiliate) in an amount equal (in value) to the amount owed by the Indemnitor in respect of such Applicable Claim. In addition, at the Indemnitee’s election, any indemnification owed by the Indemnitor to the Indemnitee may be satisfied by set off against any Loss amounts due or payable by such Indemnitee (or any Affiliate of such Indemnitee) to the Indemnitor.
(d) For purposes of the indemnification obligations under this Section 5.2, the representations and warranties set forth in Article III and Article IV of this Agreement (other than Section 3.5 and the term “material Contract”) that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect shall be deemed to have been made without any such qualification for purposes of determining the amount of Losses resulting from, arising out of, of or relating to, in the nature of, or caused by the to any breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, warranty.
(e) The cumulative indemnification obligations for any of the Transaction Documents, or claims for Losses made by any certificate delivered Indemnitee pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a5.2(a)(i) shall not exceed an amount equal to 25 percent in respect of (x) (i) any breaches of Fundamental Representations by the Acquisition Price; Indemnitor, ~$468,830,563.79 and (3ii) all amounts payable to the Indemnitees in respect of any breaches by the Stockholders Indemnitor not covered by the preceding clause (i) ~$46,883,056.38. The cumulative indemnification obligations for any claims for indemnification under this Losses made by any Indemnitee pursuant to Section 8.2(a5.2(a)(ii) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,uncapped.
Appears in 1 contract
Samples: Contribution Agreement (TransMontaigne Partners LLC)
General Indemnification. (a) Each Stockholder, agrees jointly and severally, with each other Stockholder, except with respect Subject to representations, warranties and covenants the limitations that are made by or agreed to by such Stockholder individuallyset forth in this ARTICLE XI, with respect to which such Stockholder agrees with respect to himself onlyfrom and after the Initial Closing, to indemnifySeller shall defend, defend indemnify and hold Parent and Acquisition Sub harmless each of Purchaser, its Affiliates and their respective successors, officers, directors, shareholders, employees, Affiliates agents, trustees, advisers, lenders and agents representatives (each a “Purchaser Indemnitee” and together the “Purchaser Indemnitees”), from and against, and pay or reimburse, the Purchaser Indemnitees for any and all incurred, actual and direct losses (including reasonable legal expenses and costs resulting from Third Party Claims) (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"“Losses”), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individuallysolely resulting from, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of or relating to (i) the failure any inaccuracy in or breach of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date Seller Fundamental Warranties set out under ARTICLE V of this Agreement and as of the Closing Date (unless made as of another date), Agreement; or (ii) any breach or alleged breach by any Stockholders non-fulfillment of any of their covenants covenant, agreement or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to be performed by Seller pursuant to this Agreement.
(b) Subject to the limitations that are set forth in this ARTICLE XI, and following the purchase of 100% of the Company Shares by the Purchaser as contemplated under this Agreement, the Company shall defend, indemnify Parent or Acquisition Sub and hold harmless the Purchaser Indemnitees, from and against against, and pay or reimburse, the Purchaser Indemnitees for any Loss and all Losses, resulting from, arising out of, of or relating to, to (i) any inaccuracy in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders representations or warranties of Seller or the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of Seller or the Company pursuant to this Agreement or (ii) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller or the Company pursuant to this Agreement. For abundant caution, it being clarified that, the Company shall have no liability for any claims made by the Purchaser prior to the purchase of 100% of the Company Shares by the Purchaser as contemplated under this Agreement.
(c) From and after the Initial Closing, Purchaser shall defend, indemnify and hold harmless each of Seller, its Affiliates and their respective successors, officers, directors, shareholders, employees, agents, trustees, advisers, lenders and representatives (each a “Seller Indemnitee” and together the “Seller Indemnitees”), from and against, and pay or reimburse, the Seller Indemnitees for any and all Losses and Damages actually suffered or incurred by such Seller Indemnitee, resulting from, arising out of or relating to (i) any inaccuracy in or breach of any of the representations or warranties of the Purchaser contained in this Agreement, (ii) any breach or non-fulfillment of the Transaction Documentsany covenant, agreement or any certificate delivered obligation to be performed by Purchaser pursuant to this Agreement until Parent Agreement, (iii) any disclosures or Acquisition Sub have submissions made by the Purchaser to any person, including the SEC, public, or investors, and (iv) the SPAC Agreements.
(d) From and after the Initial Closing, the Company shall defend, indemnify and hold harmless each of the Seller Indemnitees, from and against, and pay or reimburse, the Seller Indemnitees for any and all Losses and Damages actually suffered Losses in excess or incurred by such Seller Indemnitee, resulting from, arising out of $200,000 in or relating to any disclosures or submissions made by the aggregate Company to any person, including the SEC, public, or investors.
(after which the Stockholders shall be obligated e) The obligations to indemnify Parent and Acquisition Sub from hold harmless pursuant to Section 11.2(a), and against Losses only to the extent they exceed $200,000); (2Section 11.2(b) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this and Section 8.2(a11.2(c) shall not exceed an amount equal to 25 percent survive the consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders periods set forth in Section 11.1, except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to such clauses asserted prior to the terms end of the Escrow Agreement such period which claims shall survive until final resolution and shall be borne pro rata by the Stockholders,satisfaction thereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (International Media Acquisition Corp.)
General Indemnification. (a) Each StockholderSubject to the terms and conditions of this Article VII, agrees Sellers, jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to shall indemnify, defend and hold Parent harmless Buyer and Acquisition Sub and their respective its directors, officers, directorsAffiliates, employees, Affiliates agents and agents representatives (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"“Buyer Indemnified Parties”), except with respect to failures of representations from and warranties and breaches of covenants or agreements against all Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, any of them in connection with, with or arising out resulting from any of the following:
(i) the failure of any breach of, or inaccuracy in, any representation or warranty made by any Stockholder Seller (including, for the avoidance of doubt, the Key Seller) in this Agreement or any Ancillary Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or ;
(ii) any breach or alleged breach of any covenant made by any Stockholders of Seller in this Agreement or any of their covenants or agreements contained herein or thereinAncillary Agreement;
(iii) any Closing Indebtedness, to the extent not taken into account in each casedetermining the Final Adjusted Purchase Price;
(iv) any Transaction Expense, without giving effect to the extent not taken into account in determining the Final Adjusted Purchase Price;
(v) any "materiality", "knowledge" or similar qualifications; provided, however, that matter identified on Schedule 3.13;
(1vi) the Stockholders Leased Vehicles or either Seller’s use thereof after the Closing; or
(vii) the enforcement by any Buyer Indemnified Party of its indemnification rights under this Agreement.
(b) Subject to the terms and conditions of this Article VII, Buyer shall not have any obligation to indemnify Parent or Acquisition Sub indemnify, defend and hold harmless Sellers and their respective agents and representatives (collectively, the “Seller Indemnified Parties”) from and against all Losses that are incurred or suffered by any Loss of them in connection with or resulting from, arising out of, relating to, in from any of the nature following:
(i) any breach of, or caused inaccuracy in, any representation or warranty made by the Buyer in this Agreement or any Ancillary Agreement;
(ii) any breach of any covenant made by Buyer in this Agreement or any Ancillary Agreement; or
(iii) the enforcement by the Seller Indemnified Parties of their indemnification rights under this Agreement.
(c) The representations and warranties in this Agreement and the Ancillary Agreements shall not be affected or diminished by, and no right of indemnification hereunder shall be limited by reason of, any investigation or audit conducted before or after the Closing or the knowledge of any Party of any breach of a representation, warranty, covenant or agreement by the other Party at any time, or the decision of any Party to complete the Closing.
(d) In calculating the amount of Losses recoverable from an Indemnifying Party, the amount of such surviving representation or warranty or covenant Losses shall be reduced by the amount of any insurance proceeds actually received by the Indemnified Party in respect of the Stockholders contained in this Agreement, Losses net of (i) any of the Transaction Documents, or deductible amounts and any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent reasonable costs and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees expenses actually incurred by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; Indemnified Party in collecting such insurance proceeds, including reasonable attorneys’ fees, and (3ii) all amounts payable any increase in insurance premiums reasonably attributable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be insurance proceeds paid by delivery in respect of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,such Losses.
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article 9, agrees jointly and severallyafter the Closing, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to the Escrow Participating Holders shall indemnify, defend and hold Parent and Acquisition Sub and their and/or its respective officers, directors, employees, Affiliates and and/or agents (collectively, the "Indemnitees"each a “Parent Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, obligations, Taxes, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' ’ fees and expenses) ("each a “Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, ”) suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure any breach of any representation or warranty made by any Stockholder (A) contained in this Agreement, in any of the Transaction Documents Article 3 (read without reference to materiality or Company Material Adverse Effect) or (B) in any certificate or other instrument or document provided delivered by the Company to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders the Company of any of their the covenants or agreements contained herein which are to be performed by the Company or thereinits Subsidiaries on or before the Closing Date.
(b) Subject to the other provisions of this Article 9, after the Closing, Parent and the Surviving Corporation, jointly and severally, shall indemnify, defend and hold each of the Escrow Participating Holders and/or its respective officers, directors, employees, Affiliates and/or agents (each a “Holder Indemnitee”) harmless from any Losses suffered or paid, directly or indirectly, as a result of, in each caseconnection with, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the of (i) any breach of any such surviving representation or warranty or covenant of the Stockholders (A) contained in this Agreement, any of the Transaction Documents, Article 4 (read without reference to materiality or Parent Material Adverse Effect) or (B) in any certificate delivered by Parent to the Company pursuant to this Agreement until and (ii) any breach by Parent or Acquisition Merger Sub have suffered Losses in excess of $200,000 in any of the aggregate covenants or agreements contained herein which are to be performed by Parent or Merger Sub on or before the Closing Date.
(after which the Stockholders shall be obligated c) The obligations to indemnify Parent and Acquisition Sub from and against Losses only hold harmless pursuant to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) 9.2 shall not exceed an amount equal to 25 percent survive the consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders applicable period set forth in Section 9.1, except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant asserted prior to the terms end of the Escrow Agreement and such applicable period (which claims shall be borne pro rata by the Stockholders,survive until final resolution thereof).
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article 9, agrees jointly from and severallyafter the Closing, with each other StockholderSeller shall, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent harmless Buyer and Acquisition Sub its successors and permitted assigns and their respective officers, directors, employees, Affiliates and agents (collectivelyincluding, from and after the Closing, the "Indemnitees"Group Companies) harmless (each a “Buyer Indemnitee”) from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any actual damages, losses, liabilities, obligations, claims of any kindclaims, Actions, fines, penalties, costs, interest or out-of-pocket expenses (including, without limitation, including reasonable attorneys' fees ’ and accountants’ fees, disbursements and expenses) ("each, a “Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, ”) suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure any inaccuracy or breach of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents representations and warranties made by the Company or Seller in Article 3 and Article 4, respectively, or in any certificate or other instrument or document provided delivered to Parent or Acquisition Sub Buyer pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)Agreement, or (ii) any breach of, or alleged failure to perform or comply with, any covenant or agreement of Seller contained herein, (iii) each of the Contracts set forth on Schedule 9.2(a), and (iv) the third paragraph of the Contract set forth on Schedule 6.18; provided, that, with respect to any Losses that would otherwise be indemnifiable by Seller pursuant to this Section 9.2(a) with respect to a Reserved Matter, Seller shall only be obligated to indemnify, defend and hold harmless the Buyer Indemnitees for fifty percent (50%) of any such Losses.
(b) Subject to the other provisions of this Article 9, Buyer agrees to, and shall, after the Closing, cause the Company to indemnify, defend and hold harmless Seller and its respective officers, directors, employees, Affiliates and agents (each a “Seller Indemnitee”) from any Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) any inaccuracy or breach by any Stockholders of any of their covenants the representations and warranties made by Buyer contained in Article 5 or agreements in any certificate delivered to the Company pursuant to this Agreement, (ii) any breach of, or failure to perform or comply with, any covenant or agreement of Buyer contained herein, and (iii) any breach of, or failure to perform or comply with, any covenant or agreement of the Company contained herein which are to be performed by the Company after the Closing Date.
(c) Except with respect to Third Party Claims addressed in Section 9.3, any Buyer Indemnitee or thereinSeller Indemnitee (each, in an “Indemnified Party”) who wishes to make a claim for indemnification for a Loss pursuant to this Section 9.2 shall give written notice to each casePerson from whom indemnification is being claimed (an “Indemnifying Party”) promptly after it acquires knowledge of the fact, without event or circumstances giving effect rise to any "materiality", "knowledge" or similar qualificationsthe claim for the Loss; provided, howeverthat no delay or failure on the part of the Indemnified Party in so notifying an Indemnifying Party shall relieve such Indemnifying Party of any liability or obligation hereunder except to the extent such Indemnifying Party is actually prejudiced by such failure. Notwithstanding the foregoing, that (1) the Stockholders in no event shall not an Indemnifying Party have any obligation to indemnify Parent the Indemnified Party with respect to any claim that is not made in writing and received by such Indemnifying Party on or Acquisition Sub from before the expiration of the time periods specified in Section 9.1. Promptly after written notice of a claim has been provided as set forth above, the Indemnified Party shall supply the Indemnifying Party with such information and against any documents as it has in its possession regarding such claim, together with all pertinent information in its possession regarding the amount of the Loss resulting fromthat it asserts it has sustained or incurred, arising out of, relating to, and will permit the Indemnifying Party to inspect such other records and books in the nature of, or caused by the breach of any such surviving representation or warranty or covenant possession of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent Indemnified Party and Acquisition Sub from and against Losses only relating to the extent they exceed $200,000); (2) claim and asserted Loss as the aggregate amount to be payable Indemnifying Party shall reasonably request during normal business hours and on prior written request, subject to the Indemnitees by the Stockholders for claims provisions of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,6.12 hereof.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Walter Investment Management Corp)
General Indemnification. (a) Each Stockholder, Canopy Group and Canopy Ventures each covenants and agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend defend, protect and hold Parent harmless the Indemnified Parties from, against and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount in respect of all damagesDamages suffered, lossessustained, liabilitiesincurred or paid by any Indemnified Party, obligationsin each case in connection with, claims of any kindresulting from or arising out of, interest directly or expenses (indirectly whether or not involving a third party Proceeding and including, without limitation, reasonable attorneys' fees and expenses) ("Loss")all Damages suffered, except with respect to failures of representations and warranties and breaches of covenants sustained, accumulated or agreements that are made paid by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, an Indemnified Party in connection with, with claiming or arising out of enforcing indemnification hereunder: (ia) the failure Breach of any representation or warranty made by any Stockholder the Company, Canopy Ventures or Canopy Group set forth in this Agreement, in any of the Transaction Documents Agreement or in any other agreement or any certificate delivered or other instrument provided in connection with or document provided related to Parent the consummation of the transactions contemplated by this Agreement; (b) the Breach of any covenant or Acquisition Sub agreement on the part of the Company, Canopy Ventures or Canopy Group set forth in this Agreement or in any agreement or certificate executed and delivered by the Company or Canopy Group pursuant to this Agreement to be true or in the transactions contemplated hereby; (c) any Indebtedness or Non-Ordinary Course Liabilities; (d) the Benefit Plans and correct in any and all respects as of benefits accrued under the date of this Agreement and Benefit Plans as of the Closing Date (unless made as of another date), or (ii) and any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, all other Liabilities arising out of, relating to, or in connection with the form or operation of the Benefit Plans on or prior to the Closing Date; (e) any Liability with respect to any matter or matters set xxxxx xx Xxxxxxxx X; (f) any inaccuracies in (i) the allocation of payments to Persons in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate Contingent Purchase Price Statement delivered pursuant to Section 1.7(c), (ii) Schedule 1.8, (iii) Schedule 1.9, (iv) the Statement of Shareholder Closing Payment delivered pursuant to Section 1.12(c) or (v) the allocation of payments to Persons in the Employee Bonus Plan; (g) any and all Liabilities under any Environmental Laws in connection with or arising out of Releases that occurred on or prior to the Closing Date; (h) any and all Liabilities resulting from any litigation or other Proceeding, pending or threatened, against the Company or arising out of the operations of the Company on or prior to the Closing Date including, without limitation, any such matter listed on Schedule 3.13; (i) any Liability of any Preferred Shareholder or any of their Affiliates (other than the Company or any Subsidiary); and (j) without duplication of the foregoing paragraphs of this Agreement until Parent Section 9.1, any and all Liabilities for (w) all Taxes of the Preferred Shareholders for any taxable period, (x) all Taxes of the Company and its Subsidiaries incurred in connection with or Acquisition Sub have suffered Losses arising out of the activities or business of the Company or its Subsidiaries occurring on or before the Closing Date (determined, with respect to taxable periods that include but do not end on the Closing Date, in accordance with the allocation provisions of Section 6.6(b)) in excess of $200,000 the amount of such Taxes taken into account as a liability in the aggregate computation of Closing Net Assets, (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2y) the aggregate amount all Taxes required to be payable to the Indemnitees paid and paid by the Stockholders for claims Company or any of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent its Subsidiaries by reason of the Acquisition Price; Company or its Subsidiaries (or a predecessor of such entities) having been a member of an affiliated, consolidated, combined, or unitary group at any time on or before the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or foreign law, rule, or regulation and (3z) all amounts payable Taxes of any Person (other than the Company or its Subsidiaries) required to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery the Company or its Subsidiaries by reason of shares Contract, assumption, transferee liability, or operation of Parent Common Stock by Law, if the Escrow Agent pursuant to the terms liability of the Escrow Agreement and shall be borne pro rata by Company or its Subsidiaries for such Taxes is attributable to an event or transaction occurring on or before the Stockholders,Closing Date.
Appears in 1 contract
General Indemnification. (a) Each StockholderUnigene (for purposes of this Section 12.1(a), agrees jointly and severally“Indemnitor”) shall, with each other Stockholderat its own expense, except with respect to representationsdefend, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and forever hold Parent harmless USL and Acquisition Sub and their its respective officers, directors, employeesagents and employees (for purposes of this Section 12.1(a), Affiliates each an “Indemnitee”), from and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares against any and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligationsclaims, claims of any kindcosts, interest or damages and expenses (including, without limitation, fines, forfeitures, reasonable attorneys' fees ’ fees, disbursements and expensesadministrative or court costs) ("individually “Loss"), except with respect to failures ,” and collectively “Losses”) that arise from any claim of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or Third Party arising out of (i) the failure a breach of any representation representation, warranty or warranty made by any Stockholder agreement of Unigene in this Agreement, in any of Unigene’s willful misconduct or negligence, or an Infringement Action that alleges that the Transaction Documents API or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of its production violates the date Third Party’s intellectual property rights. Notwithstanding the foregoing provisions of this Agreement and as of the Closing Date (unless made as of another dateSection 12.1(a), in no event will an Indemnitee be entitled to indemnification under this Section 12.1(a) with respect to any and all Losses to the extent that they arise from an Indemnitee’s (including any Affiliates of an Indemnitee) negligence or willful misconduct. The indemnification provisions of this Section 12.1(a) shall not apply to any matters covered by the indemnification and reimbursement provisions set forth in Sections 9.1, 9.2 or 10.3 hereof, except to the extent that a Loss is due to a breach by Unigene of any representations and warranties set forth in Section 13.1(c)(v) or (iivii) any breach or alleged breach by any Stockholders in which event USL shall be entitled to indemnification to the full extent provided in this Section 12.1(a).
(b) USL (for purposes of any this Section 12.1(b), “Indemnitor”) shall, at its own expense, defend, indemnify, and forever hold harmless Unigene and its respective officers, directors, agents and employees (for purposes of their covenants or agreements contained herein or thereinthis Section 12.1(b), in each casean “Indemnitee”), without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, and all Losses that arise from any claim of a Third Party arising out of, relating to, in the nature of, or caused by the of a breach of any such surviving representation or representation, warranty or covenant agreement of the Stockholders contained USL in this AgreementAgreement or USL’s willful misconduct or negligence. Notwithstanding the foregoing provisions of this Section 12.1(b), any of the Transaction Documents, or any certificate delivered pursuant in no event will an Indemnitee be entitled to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a12.1(b) shall not exceed an amount equal with respect to 25 percent of the Acquisition Price; any and (3) all amounts payable Losses to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(aextent that they arise from an Indemnitee’s (including any Affiliates of an Indemnitee) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,negligence or willful misconduct.
Appears in 1 contract
Samples: License and Development Agreement (Unigene Laboratories Inc)
General Indemnification. (a) Each StockholderSubject to this ARTICLE IX, the Member covenants and agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend defend, protect and hold Parent harmless the Buyer Indemnified Parties from, against and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount in respect of all damagesDamages suffered, lossessustained, liabilitiesincurred or paid by any Buyer Indemnified Party, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in each case in connection with, resulting from or arising directly or indirectly out of (iwhether or not involving a third party claim): (a) the failure breach of any representation or warranty made by any Stockholder Seller Party set forth in this Agreement, Agreement or any certificate delivered or provided by any Seller Party in any connection with or related to the consummation of the Transaction Documents transactions contemplated by this Agreement; (b) the breach of any covenant or agreement on the part of any Seller Party set forth in this Agreement or any certificate delivered or other instrument or document provided to Parent or Acquisition Sub by any Seller Party pursuant to this Agreement to be true and correct or in all respects as the transactions contemplated hereby; (c) any Indebtedness for Borrowed Money of the date Company not otherwise paid on or prior to the Closing, (d) any Non-Ordinary Course Liabilities, other than as shown on the Closing Statement and deducted in the calculation of this Agreement Closing Net Working Capital or paid from the Purchase Price; (e) the Parent Benefit Plans and any and all benefits accrued under the Benefit Plans as of the Closing Date (unless made as of another date), or (ii) and any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, all other Liabilities arising out of, relating toor in connection with, the form, operation or termination of such Benefit Plans or termination of the Company’s participation in the nature ofBenefit Plans on or prior to the Closing Date, or caused by (f) any liability with respect to the breach Incentive Payment Rights, including without limitation any payment of Taxes associated therewith (including any applicable tax withholding, payroll tax payments and the employer portions of any Taxes associated with the Incentive Payment Rights) in each case other than such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only Taxes to the extent they exceed $200,000included in the calculation of Closing Working Capital, (g) other than as shown on the Closing Statement as finally determined and deducted in the calculation of Closing Net Working Capital (and resulting an adjustment to the Purchase Price pursuant to Section 1.4), any and all Liabilities for Taxes or the nonpayment thereof: (i) of the Company or the Member for all taxable periods ending on or before the Closing Date and for that portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Closing Date, (ii) in connection with or arising out of the Company’s activities or business on or before the Closing Date (determined, with respect to taxable periods that begin before and end after the Closing Date, in accordance with the allocation provisions of Section 6.5(b)), (iii) arising in connection with the transactions contemplated by this Agreement; (2iv) owing by any Person (other than the aggregate amount Company) for which the Company may be liable where the liability of the Company for such Taxes is attributable to be an event or transaction or affiliation occurring on or before the Closing Date, including, without limitation, (A) in respect of Taxes payable to the Indemnitees by the Stockholders for claims Member, (B) under Treasury Regulation Sections 1.1502-6 (or any predecessor or successor thereof or any analogous or similar provision of indemnification under this Law ), (C) as a transferee or successor or (D) by Contract, or (v) resulting from a breach by any Seller Party of any provision of Section 8.2(a6.5, (h) shall not exceed an amount equal to 25 percent of the Acquisition Price; any matter described on Appendix B and (3i) all amounts payable to enforcing the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery rights of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Buyer Indemnified Parties hereunder.
Appears in 1 contract
Samples: Purchase Agreement (Global Defense Technology & Systems, Inc.)
General Indemnification. (a) Each StockholderSubject to SECTIONS 9.1 and 9.2, agrees jointly and severallythe Sellers or the Shareholders, with each other Stockholderas applicable, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, agree to indemnify, defend and hold Parent harmless the Purchaser and Acquisition Sub its Affiliates and their respective directors, officers, directorspartners, employees, Affiliates agents and agents (collectivelyrepresentatives from and against any and all Indemnifiable Losses to the extent relating to, the "Indemnitees") harmless resulting from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of of:
(i) the failure any breach of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents Sellers, or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects the Shareholders, as of applicable, under the date terms of this Agreement and as of the Closing Date (unless made as of another date), or any other Seller Document; and
(ii) any breach or alleged breach by any Stockholders nonfulfillment of any agreement (other than representations and warranties) or covenant of the Sellers or the Shareholders, as applicable, under the terms of this Agreement or any other Seller Document.
(b) Subject to SECTIONS 9.1 and 9.2, the Purchaser agrees to indemnify, defend and hold harmless the Sellers and their covenants Affiliates and their respective directors, officers, partners, employees, agents or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub representatives from and against any Loss and all Indemnifiable Losses to the extent relating to, resulting from, from or arising out of, relating to, in the nature of, or caused by the :
(i) any breach of any such surviving representation or warranty of the Purchaser under the terms of this Agreement or any other Purchaser Document; and
(ii) any breach or nonfulfillment of any agreement (other than representations and warranties) or covenant of the Stockholders Purchaser under the terms of this Agreement or any other Purchaser Document.
(c) For purposes of indemnification under this SECTION 9.3, any breach of any representation or warranty by any Seller or by the Purchaser of any fact or set of facts in the representations and warranties contained in this Agreement shall be deemed to constitute a breach of such representation or warranty, notwithstanding any limitation or qualification as to materiality set forth in such representation, warranty or certificate on the scope, accuracy or completeness thereof, it being the intention of the parties that any Indemnitee shall, subject to the provisions of this ARTICLE IX, be indemnified and held harmless from and against any Indemnifiable Losses caused by or resulting from the failure of any such representation, warranty or certificate to be true, correct and complete in any respect, or the failure of any Seller or the Purchaser or any of their respective Affiliates to duly and punctually perform any covenant, agreement or undertaking contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,.
Appears in 1 contract
Samples: Stock Purchase Agreement (United Stationers Supply Co)
General Indemnification. (a) Each StockholderShareholders, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to shall indemnify, defend and hold harmless Parent and Acquisition Sub and their respective its directors, officers, directorsAffiliates, employees, Affiliates agents and agents representatives (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"“Parent Indemnified Parties”), except with respect to failures of representations from and warranties and breaches of covenants or agreements against all Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, any of them in connection with, with or arising out resulting from any of the following:
(i) the failure of any breach of, or inaccuracy in, any representation or warranty made by any Stockholder Shareholder in this Agreement;
(ii) any breach of any covenant made by any Shareholder in this Agreement;
(iii) any Closing Indebtedness, to the extent not included in the adjustments provided for in Section 1.7;
(iv) any Transaction Expense, to the extent not included in the adjustments provided for in Section 1.7;
(v) any matter identified on Schedule 3.13; or
(vi) the enforcement by any Parent Indemnified Party of its indemnification rights under this Agreement.
(b) Parent shall indemnify, defend and hold harmless Shareholders and their respective directors, officers, Affiliates, employees, agents and representatives (collectively, the “Shareholder Indemnified Parties”) from and against all Losses that are incurred or suffered by any of them in connection with or resulting from any of the Transaction Documents following:
(i) any breach of, or inaccuracy in, any representation or warranty made by Parent in this Agreement;
(ii) any certificate or other instrument or document provided to breach of any covenant made by Parent or Acquisition Sub in this Agreement; or
(iii) the enforcement by the Shareholder Indemnified Parties of their indemnification rights under this Agreement.
(c) The maximum aggregate obligation of (i) Shareholders for Losses pursuant to this Agreement claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i), and (ii) Parent for Losses pursuant to be true claims for breaches of representations and correct warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed $1,250,000 (the “Cap”). The Cap shall not apply to Losses arising in all respects as respect of claims for misrepresentations and breach of the date of this Agreement and Fundamental Representations.
(d) In no event shall the limitations set forth in Section 7.2(c) apply to Losses suffered or incurred by any Indemnified Party as of a result of, or arising out of, (i) the Closing Date (unless made as of another datematters set forth in Sections 7.2(a)(ii) through 7.2(a)(vi), Sections 7.2(b)(ii) or 7.2(b)(iii), or Section 6.1, or (ii) any breach fraud or alleged breach intentional misrepresentation by any Stockholders a Party
(e) The representations and warranties in this Agreement and the Ancillary Agreements shall not be affected or diminished by, and no right of indemnification hereunder shall be limited by reason of any investigation or audit conducted before or after the Closing or the knowledge of their covenants any Party of any breach of a representation, warranty, covenant or agreements contained herein or therein, in each case, without giving effect to agreement by the other Party at any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature oftime, or caused by the breach decision of any such surviving representation or warranty or covenant of Party to complete the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing.
Appears in 1 contract
Samples: Merger Agreement (Transcat Inc)
General Indemnification. (a) Each StockholderAfter the Closing, agrees jointly Parent, Newco and severally, with the Surviving Corporation (each other Stockholder, except with respect to representations, warranties a "Buyer Indemnitee" and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, together the "Buyer Indemnitees") shall be indemnified, defended and held harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all Escrow Account from any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss")) suffered or paid, except directly or indirectly, as a result of, in connection with, or arising out of:
(i) the failure of any representation or warranty made by the Company (A) contained in this Agreement to be true and correct as of the date of this Agreement or as of the Closing Date or (B) in any certificate delivered to Parent and Newco pursuant to Section 6.2 to be true and correct as of the Closing Date;
(ii) any breach by the Company of any of its covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date;
(iii) any (A) payment (whether by settlement or as required by any court order) by the Surviving Corporation or Parent to any dissenting stockholder of the Company in excess of the amount such stockholder would have received pursuant to the terms of this Agreement with respect to failures of representations and warranties and breaches of covenants or agreements the equity securities that are made the subject of such dissent or (B) appraisal rights proceeding;
(iv) the Incentive Bonus Plan;
(v) any claim by a person who was a stockholder, warrantholder or agreed optionholder of the Company prior to the Effective Time, seeking to assert, or based upon: (i) ownership or rights to ownership of any shares of stock of the Company issued prior to the Effective Time (other than the right to receive the consideration pursuant to this Agreement or appraisal rights under the applicable provisions of the DGCL); or (ii) any claim that his, her or its shares of stock of the Company, warrants or options were wrongfully repurchased or terminated by the Company;
(vi) (a) any of the Unvested Out of the Money Common Stock Options, (b) any of the Series C Preferred Stock Warrants or the Series D Preferred Stock Warrants in excess of the Preferred Stock Warrant Consideration included in the final Preferred Purchase Price or (c) any of the Vested and In the Money Options other than for payments to the holders of such Stockholder individuallyVested and In the Money Options as provided in Section 2.7(c)(iii) and Section 2.12(a) hereof; or
(vii) any Pre-Closing Taxes except to the extent included in the calculation of Net Working Capital that is part of the final Preferred Purchase Price.
(b) After the Closing, with respect to which such Stockholder each of Parent and the Surviving Corporation agrees to indemnify indemnify, defend and hold each Company Preferred Securityholder and each holder of Common Stock as of the Indemnitees date of this Agreement (each a "Seller Indemnitee" and together the "Seller Indemnitees") harmless from all Losses, any Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder Parent or Newco (A) in this Agreement, Agreement contained in any Article IV of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement or (B) in any certificate delivered to the Company pursuant to Section 6.3 to be true and correct as of the Closing Date (unless made as of another date)Date, or (ii) any breach or alleged breach by any Stockholders Parent of any of their its covenants or agreements contained herein, or (iii) any breach by the Surviving Corporation (including by way of being the successor of Newco and the Company) of any of its covenants or agreements contained herein or therein, in each case, without giving effect which are to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused be performed by the breach of any such surviving representation or warranty or covenant of Surviving Corporation after the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing Date.
Appears in 1 contract
General Indemnification. (a) Each StockholderFrom and after the Closing Date, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend the Seller shall indemnify and hold harmless the Buyer and the Parent and Acquisition Sub and their respective successors, assigns, officers, directors, employees, stockholders, agents, Affiliates and agents any Person who controls any of such Persons (each, a "Buyer Indemnified Party") from and against any Liabilities, demands, judgments or expenses whatsoever (including reasonable attorneys', consultants' and other professional fees and disbursements of every kind, nature and description incurred by such Buyer Indemnified Party in connection therewith and any consequential or punitive damages, or both, solely to the extent that they are payable to a third party) (collectively, "Damages") that such Buyer Indemnified Party may sustain, suffer or incur and that result from, arise out of or relate to any breach of any representation, warranty, covenant or agreement of the Seller or the Company contained in this Agreement. For the avoidance of doubt, it is agreed that any payments paid to a Buyer Indemnified Party pursuant to Section 2.4 shall not be further reimbursed pursuant to this Section 9. The indemnification provided in this Section 9.1 for breaches of representation and warranties contained in Section 3.26 hereof (Environmental Matters) shall be subject to and limited by the conditions and terms in the definition of "Environmental Conditions" and Sections 2.6 and 9.3 hereof, regardless of whether a claim for Damages for such breach could also be made under any other indemnification provision of this Agreement.
(b) From and after the Closing Date, the Parent and the Buyer shall indemnify and hold harmless the Seller, its successors, assigns, officers, directors, employees, stockholders, agents, Affiliates and any Person who controls any of such Persons (each, a "Seller Indemnified Party", and together with the Buyer Indemnified Parties, the "IndemniteesIndemnified Parties") harmless from an and against any Damages that such Seller Indemnified Party may sustain, suffer or incur and that result from, arise out of, or relate to, any breach of any representation, warranty, covenant or agreement of the Buyer contained in this Agreement.
(c) The amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied any Damages shall be reduced by (yA) any amount received by an Indemnified Party under any insurance coverage or from any other party alleged to be responsible therefor (net of any cost of recovery) and (B) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest tax benefit available to such Indemnified Party relating thereto; the Indemnified Party shall use reasonable efforts to collect any amounts available under such insurance coverage or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except from such other party alleged to have responsibility. If an Indemnified Party receives an amount under insurance coverage or from such other party with respect to failures of representations and warranties and breaches of covenants Damages at any time subsequent to any indemnification provided by this Section 9, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or agreements that are made by or agreed to expense incurred by such Stockholder individuallyparty in connection with providing such indemnification up to such amount received by the Indemnified Party. In addition, no Indemnified Party shall be entitled to any duplication of reimbursement or indemnification with respect to any Damages which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as constitute a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation more than one representation, warranty, covenant or warranty or covenant of the Stockholders agreement contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Vlasic Foods International Inc)
General Indemnification. (a) Each Stockholder, agrees The Majority Parties jointly and severallyseverally shall indemnify and defend and shall compensate and reimburse the Company, with Buyer, Parent and each other Stockholderof their respective directors, except with respect to representations, warranties officers and covenants employees (the “Buyer Indemnitees”) and shall hold each of them harmless from and against all Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator any of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, them in connection with, with or arising out of resulting from:
(i) the failure any breach of any representation or warranty made by any Stockholder the Company in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or ; or
(ii) any breach of any covenant made by the Company in this Agreement or alleged breach any Ancillary Agreement which covenant of the Company required performance prior to the Closing.
(b) Each Seller will severally (and not jointly and severally) indemnify and defend and shall compensate and reimburse the Buyer Indemnitees and shall hold each of them harmless from and against all Losses that are incurred or suffered by any Stockholders of them in connection with or resulting from:
(i) any breach of any representation or warranty made by such Seller in Article IV; or
(ii) any breach of their covenants any covenant or agreements contained herein agreement made by such Seller in this Agreement or thereinany Ancillary Agreement, in each casewhether such covenant of such Seller requires performance prior to or after the Closing.
(c) Notwithstanding the foregoing, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1A) the Stockholders Majority Parties and, as to Section 10.2(b), the applicable Sellers, shall not have any obligation to indemnify Parent or Acquisition Sub the Buyer Indemnitees from and against Losses resulting from, or arising out of, relating to, in the nature of, or caused by the breach of any Loss representation or warranty of the Company or any Seller until the Buyer Indemnitees have suffered Losses by reason of all such breaches in excess of $100,000 (the “Basket”), after which point the Majority Parties and, as to Section 10.2(b), the applicable Sellers, will be obligated to indemnify the Buyer Indemnitees from and against the aggregate amount of all such Losses regardless of the Basket; and (B) there will be an aggregate ceiling equal to $2,450,000 plus an amount equal to thirty-five percent (35%) of the aggregate amount of any Earn-Out payments received by the Sellers as of the date of determination (the “Cap”), on the aggregate obligation of the Sellers to indemnify the Buyer Indemnitees from and against Losses resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, Company or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate Seller; and (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2C) the aggregate amount total liability of each Seller with respect to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a10.2(b)(i) shall not exceed an amount equal to 25 percent such Seller’s Pro-Rata Share of the Acquisition PriceCap; provided, however, that the limitations in this paragraph shall not apply to Losses arising in respect of claims for breach of any representation or warranty relating to Section 3.1 (relating to organization), Section 3.2 (relating to capitalization), Section 3.3 (relating to subsidiaries), Section 3.5 (relating to authority), Section 3.6(b) (relating to immigration matters), Section 3.10 (relating to taxes), Section 3.14 (relating to environmental matters), Section 3.16 (relating to title), Section 3.24 (relating to employee benefits matters), Section 3.25 (relating to brokers), Section 4.1 (relating to ownership of shares), Section 4.2 (relating to authority), Section 4.5 (relating to brokers), or to claims of, or causes of action based upon, fraud.
(d) Without limiting any other remedies available at law or in equity, Buyer shall have the right to set off against any payments under the Earn-Out (other than the Retention Bonus Pool) and any unvested portion of the Equity Consideration. From and after the Closing, any indemnification to which Buyer is entitled under this Agreement as a result of any Losses incurred under Section 10.2(a) or 10.2(b) and for which Buyer exercises its right of set off pursuant to this Section 10.2(d), shall be satisfied first by set off against any payments owed with respect to the Contingent Bonus Pool, then against any payments owed with respect to the Cash Earn-Out Consideration and the Super Cash Earn-Out Consideration and then against any unvested portion of the Equity Consideration; provided, however, to the extent it is later finally determined by a court of competent jurisdiction or by the agreement of the parties that any amount that was so set off, or any portion thereof, was not due and owing to Buyer, Buyer shall pay such amounts to the Sellers’ Agent (for distribution to the Sellers) promptly after such final determination. Any amounts set off pursuant to this Section 10.2(d) shall apply toward the limitation set forth in Section 10.2(c) on the obligation of the Sellers to indemnify the Buyer Indemnitees. For the avoidance of doubt, in no event shall Buyer be obligated to exercise its set off rights prior to seeking indemnification directly from the Sellers.
(e) No limitation or condition of liability provided in this Article X shall apply to any breach of any representation or warranty contained herein if such breach of representation or warranty was made willfully or with intent to deceive.
(f) Buyer and Parent shall jointly and severally indemnify the Sellers and shall hold each of them harmless from and against all Losses that are incurred or suffered in connection with or resulting from:
(i) any breach of any representation or warranty made by Buyer or Parent in this Agreement or any Ancillary Agreement; or
(ii) any breach of any covenant or agreement made by Buyer or Parent in this Agreement or any Ancillary Agreement or by the Company after the Closing Date.
(g) The Sellers and Buyer agree that for purposes of (i) determining whether or not there has been a breach of a representation or warranty by the Company, a Seller, Buyer or Parent and (3ii) all amounts payable calculating the amount of Losses incurred arising out of or relating to any such breach, the references to material adverse effect or other materiality qualifications (or correlative terms), including as expressed in accounting concepts such as GAAP, shall be disregarded.
(h) No limitation or condition of liability provided in this Article X shall apply to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms obligations of the Escrow Agreement and shall be borne pro rata by Majority Parties set forth in Section 9.2 hereof, except for the Stockholders,limitations set forth in Section 10.1(b).
Appears in 1 contract
General Indemnification. (a) Each StockholderIf, agrees jointly and severallyafter the Closing Date, with each other StockholderParent, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Merger Sub and and/or their respective officers, directors, employees, Affiliates and affiliates and/or agents (collectively, each a "Purchaser Indemnitee" and together the "Purchaser Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all suffer any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss")) as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by the Company in this Agreement (whether or not contained in Article 2) or in any schedule or in any certificate or other instrument or document delivered to Parent and Merger Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (without giving effect to the term "material", "materially" or "Company Material Adverse Effect" in any such representation or warranty, except with respect to failures of for the representations and warranties contained in clauses (vi) and breaches (x) of Section 2.6, clause (vi) of Section 2.7(b), Section 2.7(c), the second sentence of Section 2.12, and the second sentence of Section 2.18 whereby the term "material", "materially" and "Company Material Adverse Effect" will be given effect for purposes of this Section 7.2(a)), (ii) any breach by the Company of any of its covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date and (iii) that are made by or agreed specific charge which was filed with the Equal Employment Opportunity Commission against Bradxx Xxxufacturing, L.L.C. and which is referred to by in item 6 on Schedule 2.8 attached hereto (the "June 2000 Bradxx XXXC Claim"), then, subject to the other provisions of this Article 7, such Stockholder individuallyPurchaser Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the Indemnification Escrow Account.
(b) After the Closing, with respect each of Parent and Surviving Entity agree to which such Stockholder agrees to indemnify indemnify, defend and hold the Indemnitees direct and indirect equityholders of the Company (including Saw Mill) as of the date of this Agreement and their respective affiliates, officers, directors, employees, and agents (each a "Seller Indemnitee" and together the "Seller Indemnitees") harmless from all Losses, any Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder Parent or Merger Sub in this Agreement, Agreement (whether or not contained in any of the Transaction Documents Article 3) or in any certificate or other instrument or document provided delivered to Parent the 39 45 Company or Acquisition Sub Saw Mill pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)Date, or (ii) any breach or alleged breach by any Stockholders Parent of any of their its covenants or agreements contained herein and (iii) any breach by Surviving Entity (including by way of being the successor of Merger Sub and the Company) of any of its covenants or therein, in each case, without giving effect agreements contained herein which are to any "materiality", "knowledge" or similar qualifications; provided, however, that be performed by the Surviving Entity after the Closing Date.
(1c) the Stockholders shall not have any obligation The obligations to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered hold harmless pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in Section 7.2 shall survive the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders periods set forth in Sections 7.1, except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant asserted prior to the terms end of the Escrow Agreement and such periods which claims shall be borne pro rata by the Stockholders,survive until final resolution thereof.
Appears in 1 contract
Samples: Merger Agreement (Global Power Equipment Group Inc/)
General Indemnification. (a) Each StockholderIn addition to the other indemnities contained herein, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made notwithstanding the existence of any insurance carried by or agreed for the benefit of Landlord or Tenant, and without regard to by the policy limits of any such Stockholder individuallyinsurance, with respect to which such Stockholder agrees with respect to himself onlyTenant shall protect, to indemnify, save harmless and defend Landlord from and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of against all damages, losses, liabilities, obligations, claims claims, damages, penalties, causes of any kindaction, interest or expenses (includingcosts and expenses, without limitation, including reasonable attorneys' ’, consultants’ and experts’ fees and expenses) ("Loss"), except and including with respect to failures of representations and warranties and breaches of covenants any permitted contests under Section 6.3 (collectively, “Claims”), imposed upon or agreements that are made incurred by or agreed to asserted (including by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result third parties) against Landlord by reason of, in connection with, or arising out of : (i) any accident, injury to or death of Persons or loss of or damage to property occurring on or about the failure of any representation Leased Assets or warranty made adjacent areas used or controlled by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or Tenant; (ii) any breach use, misuse, non-use, condition, maintenance, or alleged repair by Tenant or its Affiliate of the Leased Assets, or arising from Tenant’s use of the Leased Assets; (iii) any breach by any Stockholders Tenant of any terms of their covenants this Master Lease or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualificationsGuarantor of its obligations hereunder; provided, however, that (1iv) any breach by Tenant of any terms of any sublease of the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature ofLeased Assets, or caused by of any other agreement between Tenant and a customer thereof pertaining to or arising from the Leased Assets; (v) any breach of any such surviving representation or warranty or covenant terms of any subleases of the Stockholders contained Leased Assets; (vi) any claim for malpractice, negligence or misconduct committed by Tenant or its Subsidiaries on or working from the Leased Assets, or by any Person acting on behalf of Tenant or its Subsidiaries to the same end; (vii) any claims or actions for trespass with respect to the Leased Assets; (viii) any Claims for encroachment with respect to the Leased Assets, including, but without limitation, the right of surface entry or any other provision of a lease or reservation of oil, gas, water, or other minerals; and (ix) any violation by Tenant of any Legal Requirement. Any amounts which become payable by Tenant under this Article X shall be paid within ten (10) days after liability therefor is determined by a final non-appealable judgment, settlement or other agreement of the Parties, and if not timely paid shall bear interest at the Overdue Rate from the date of such determination to the date of payment. Tenant, at its sole cost and expense, shall contest, resist and defend any such claim, action or proceeding asserted or instituted against Landlord in connection with the Leased Assets as expressly set forth above in this Section 10.1; it being agreed and understood that in no event shall Landlord have the right to enter into any settlement with respect to any claim, action or proceeding for which Tenant has confirmed in writing that it will indemnify Landlord hereunder without obtaining Tenant’s prior consent, such consent not to be unreasonably withheld, conditioned, or delayed. For purposes of this Article X, any acts or omissions of Tenant, or by employees, agents, assignees, contractors, subcontractors or others acting for or on behalf of Tenant (whether or not they are negligent, intentional, willful or unlawful), shall be strictly attributable to Tenant.
(b) The Parties specifically acknowledge and agree that Landlord has, pursuant to the Acquisition Agreement, any taken ownership of the Transaction DocumentsLeased Assets as an assignee from Tenant or its Affiliates in accordance with the terms of said Acquisition Agreement. Accordingly, Tenant agrees that Landlord will in no way be liable for any Claims arising from or related to any obligations, duties, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in responsibilities regarding the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only Leased Assets prior to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent closing date of the Acquisition Price; and Agreement.
(3c) all amounts payable In the event of an adverse final determination with respect to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(aany Claim: (i) Landlord shall be paid by delivery entitled to obtain valid and effective waivers or settlements of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,all Claims; and
Appears in 1 contract
Samples: Master Lease
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article 10, agrees each Seller shall, severally but not jointly and severallybased on each Seller’s Pro Rata Share, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent each of Purchaser and Acquisition Sub the Company and their respective officers, directors, employees, Affiliates partners, stockholders, Affiliates, agents and agents representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Indemnitees"each a “Purchaser Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) ("Loss")collectively, except with respect to failures “Losses”) incurred that arise out of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paidresult, directly or indirectly, as a result of, in connection with, or arising out of from: (i) the failure any breach of any representation or warranty made by any Stockholder the Company, the Sellers or the Representative (A) contained in this Agreement, in any of the Transaction Documents Agreement or (B) in any certificate or other instrument or document provided delivered by the Company to Parent or Acquisition Sub Purchaser pursuant to this Agreement to be true and correct in all respects as (provided that for the purposes of the date of this Agreement and as of the Closing Date foregoing clause (unless made as of another datei), qualifications as to materiality, Company Material Adverse Effect or other qualifiers of similar import contained in such representations and warranties (x) shall not be given effect for purposes of calculating any Losses for all such representations and warranties other than in Section 4.12 and (y) shall not be given effect for determining whether a breach has occurred of or for purposes of calculating any Losses for the representations and warranties in Section 4.12), (ii) any breach by the Sellers, the Company or alleged breach by any Stockholders the Representative of any of their respective covenants or agreements contained herein herein, (iii) any and all Losses with respect to Pre-Closing Taxes of the Company, (iv) any claims by any Person after the Closing for payment relating to equity securities of the Company immediately prior to the Closing, (v) any Indebtedness of the Company that is not included in Closing Indebtedness, and (vi) any Seller Expenses not taken into account in the Estimated Consideration or thereinthe Final Consideration.
(b) Subject to the other provisions of this Article 10, in Purchaser shall, and shall cause the Company to, indemnify, defend and hold each caseSeller and their respective Affiliates, without giving effect to officers, directors, employees, partners, stockholders, agents and representatives, and each of the heirs, executors, successors and assigns of any "materiality", "knowledge" or similar qualifications; provided, however, that of the foregoing (1each a “Seller Indemnitee”) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub harmless from and against any Loss resulting fromincurred that arises out of or results, arising out ofdirectly or indirectly, relating to, in the nature of, or caused by the from (i) any breach of any such surviving representation or warranty or covenant of the Stockholders made by Purchaser (A) contained in this Agreement, any of the Transaction Documents, Agreement or (B) in any certificate or other instrument or document delivered by Purchaser to the Company or the Representative pursuant to this Agreement until Parent Agreement, and (ii) any breach by Purchaser of any of its covenants or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate agreements contained herein.
(after which the Stockholders shall be obligated c) The obligations to indemnify Parent and Acquisition Sub from and against Losses only hold harmless pursuant to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) 10.2 shall not exceed an amount equal to 25 percent survive the consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders applicable periods set forth in Section 10.1, except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant asserted prior to the terms end of the Escrow Agreement and an applicable period (which claims shall be borne pro rata by the Stockholders,survive until final resolution thereof).
Appears in 1 contract
General Indemnification. (a) Each Stockholder, agrees of CND and the Shareholders hereby jointly and severally, with each other Stockholder, except with respect severally agree to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend indemnify and hold Parent harmless the Purchaser and Acquisition Sub its Affiliates and their respective directors, officers, directors, employees, Affiliates agents, successors and agents assigns (collectively, the "IndemniteesPurchaser Indemnified Parties") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims against and in respect of any kindand all Losses resulting from, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result arising out of, in connection with, based on or arising out of relating to:
(i) the failure of any representation or warranty made by any Stockholder of CND set forth in this Agreement, in any of the Transaction Documents Seller Document or in any certificate or other instrument delivered by or document provided to Parent or Acquisition Sub on behalf of CND pursuant to this Agreement to be true and correct in all respects as of both on the date of this Agreement hereof and on and as of the Closing Date (unless made as of another date), or Date;
(ii) any the breach or alleged breach by any Stockholders of any covenant or other agreement on the part of their covenants CND and the Shareholders under this Agreement or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualificationsSeller Document;
(iii) any Excluded Liabilities; provided, however, that or
(1iv) the Stockholders shall not have Excluded Assets or the ownership, operation, lease or use thereof, or any obligation action taken with respect thereto, by CND or any other Person.
(b) Purchaser hereby agrees to indemnify Parent or Acquisition Sub and hold harmless CND and its Affiliates, and their respective directors, officers, employees, agents, successors and assigns from and against and in respect of any Loss and all Losses resulting from, arising out of, based on or relating to:
(i) the failure of any representation or warranty of the Purchaser set forth in this Agreement or any Purchaser Document or any certificate and instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, to be true and correct in all respects both on the nature of, or caused by date hereof and on and as of the Closing Date;
(ii) the breach of any such surviving representation covenant or warranty or covenant other agreement on the part of the Stockholders contained in Purchaser under this AgreementAgreement or any Purchaser Document; or
(iii) any Assumed Liabilities.
(c) Notwithstanding any other provision to this Section 9.2, any the liability for a breach of the Transaction Documents, Non-Competition Agreement or inaccuracy of the representation set forth in Section 4.30 hereof by any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders Shareholder shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only limited to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,breaching Shareholder.
Appears in 1 contract
General Indemnification. (a) Each StockholderIf, agrees jointly and severallyafter the Closing Date, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective Purchaser and/or its officers, directors, employees, Affiliates and and/or agents (collectively, each a “Purchaser Indemnitee” and together the "“Purchaser Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all suffer any damages, losses, liabilities, obligations, claims of any kind, fines, penalties, interest or expenses (including, without limitation, including reasonable attorneys' ’ and consultants’ fees and expenses) ("a “Loss")”) as a result of, except with respect in connection with, or arising out of (without duplication) (i) any breach of any representation or warranty made by the Seller (A) contained in Article III or Article IV or (B) in any certificate delivered to failures Purchaser pursuant to Section 7.2, (ii) any failure by the Seller or any Company to perform any of representations and warranties and breaches of its covenants or agreements that contained herein which are made to be performed by the Seller or agreed any Company on or before the Closing Date, (iii) any failure by the Seller to perform any of its covenants or agreements contained herein which are to be performed by the Seller after the Closing Date, or (iv) any claim asserted by Impex Lumber Corp. and/or Mid-State Lumber Corp. as described in Schedule 3.14(a) or arising out of U.S. Patent No. 6,817,153, then, subject to the other provisions of this Article IX, such Stockholder individuallyPurchaser Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the Indemnification Escrow Account.
(b) After the Closing, with respect to which such Stockholder each of Purchaser and the Companies agrees to indemnify indemnify, defend and hold the Indemnitees Seller and its officers, directors, employees, Affiliates and/or agents (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from all Losses, any Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (without duplication) (i) the failure any breach of any representation or warranty made by any Stockholder Purchaser (A) contained in this Agreement, in any of the Transaction Documents Article V or (B) in any certificate or other instrument or document provided delivered to Parent or Acquisition Sub the Seller pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)Section 7.3, or (ii) any breach failure by Purchaser to perform any of its covenants or alleged agreements contained herein, or (iii) any breach by Purchaser (or any Stockholders Company) of any of their its covenants or agreements contained herein which are to be performed by any Company after the Closing Date.
(c) The obligations to indemnify and hold harmless pursuant to clauses (i) and (iv) of Section 9.2(a) and pursuant to clause (i) of Section 9.2(b) shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 9.1, except (x) for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims for indemnification shall survive until final resolution thereof and (y) with respect to claims for indemnification pursuant to Section 9.2(a)(iv), if a complaint is filed with any Governmental Authority within one (1) year from the Closing Date, which claim for indemnification shall survive until the final resolution thereof. Other than with respect to the Specified Representations and Warranties, for purposes of determining whether there has been a breach of any representation or thereinwarranty and the Losses attributable to such breach of representation or warranty, all qualifications contained in each caseArticle III as to “material,” “materially” or “Material Adverse Effect” shall be disregarded.
(d) Notwithstanding anything contained herein to the contrary, without giving effect no party to this Agreement shall be liable to any "materiality"other party to this Agreement for special, "knowledge" consequential, punitive or similar qualificationsexemplary losses or damages or lost profits; provided, however, that (1) the Stockholders foregoing shall not have any obligation be construed to indemnify Parent preclude recovery by an Indemnified Party in respect of all Losses directly incurred or Acquisition Sub suffered from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Third Party Claims.
Appears in 1 contract
General Indemnification. (a) Each StockholderShareholder shall indemnify and defend and shall compensate and reimburse the Company, agrees jointly Buyer and severallyeach of their respective directors, with officers and employees and shall hold each other Stockholder, except with respect to representations, warranties of them harmless from and covenants against all Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator any of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, them in connection with, with or arising out of resulting from:
(i) the failure any (A) breach of any representation or warranty made by any Stockholder the Company in this Agreement, Agreement or any breach of any covenant made by the Company in any this Agreement which covenant of the Transaction Documents or in any certificate or Company required performance prior to the Closings and (B) Retained Liabilities, on a joint and several basis with all other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or Shareholders;
(ii) any breach of any representation, covenant or alleged breach agreement made by any Stockholders such Shareholder in this Agreement or any Ancillary Agreement, whether such covenant of any of their covenants such Shareholders requires performance prior to or agreements contained herein or thereinafter the Closings, in each caseon a several, without giving effect to any "materiality"but not joint, "knowledge" or similar qualificationsbasis; provided, however, that (1A) the Stockholders Shareholders shall not have any obligation to indemnify Parent or Acquisition Sub Buyer from and against Losses resulting from, or arising out of, relating to, in the nature of, or caused by the breach of any Loss representation or warranty of the Company or any Shareholder until Buyer has suffered Losses by reason of all such breaches in excess of $50,000 (the “Basket”), after which point the Shareholders will be obligated to indemnify Buyer from and against the aggregate amount of all such Losses regardless of the Basket; (B) there will be an aggregate ceiling equal to (i) $2,000,000, in the event no payments are paid to the Shareholders under the Earn-Out (the “First Cap Amount”), and (ii) $2,500,000, in the event that at least $500,000 is paid to the Shareholders under the Earn-Out (the “Second Cap Amount”), on the obligation of the Shareholders to indemnify Buyer from and against Losses resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained Company and any Shareholder; provided further however, that the limitations in subsections (A) and (B) of this Agreementparagraph shall not apply to Losses arising in respect of claims for breach of representations and warranties relating to Section 3.2 (relating to capitalization), Section 3.1 (relating to organization), Section 3.3 (relating to subsidiaries), Section 3.5 (relating to authority), Section 3.6(b) (relating to immigration matters), Section 3.10 (relating to taxes), Section 3.24 (relating to employee benefits matters), Section 3.26 (relating to brokers), Section 4.1 (relating to ownership of shares), Section 4.2 (relating to authority), Section 4.5 (relating to brokers) and (C) the total liability of each Shareholder with respect to claims under Section 9.2 shall not exceed its Pro Rata Share of the Purchase Price actually received in connection with all claims.
(b) Without limiting any other remedies available at law or in equity, Buyer shall have the right to set off against any payments due and owing from Buyer under the Promissory Notes and the Earn-Out. From and after the Closings, prior to making any claim against any Shareholder, any indemnification to which Buyer is entitled under this Agreement as a result of any Losses incurred under Sections 9.2(a) shall be satisfied (i) first by set off against each Shareholder’s Pro Rata Share of payments owed to the Shareholders under Promissory Notes (whether or not then due) and (ii) second by set off against each Shareholder’s Pro Rata Share of payments earned and owed to the Shareholders, if any, with respect to the Earn-Out; provided, however, to the extent it is later finally determined by a court of competent jurisdiction or by the agreement of the Transaction Documentsparties that any amount that was so set off, or any certificate delivered pursuant portion thereof, was not due and owing to Buyer, Buyer shall pay such amounts to the Shareholders’ Agent promptly after such final determination, plus interest accruing from the time of set off at the Interest Rate.
(c) No limitation or condition of liability provided in this Agreement until Parent Article IX shall apply to any breach of any representation or Acquisition Sub have suffered Losses in excess warranty contained herein if such breach of $200,000 in representation or warranty was made willfully or with intent to deceive.
(d) Buyer shall indemnify the aggregate (after which the Stockholders Shareholders and shall be obligated to indemnify Parent and Acquisition Sub hold each of them harmless from and against all Losses only that are incurred or suffered by any of them in connection with or resulting from:
(i) any breach of any representation or warranty made by Buyer in this Agreement or any Ancillary Agreement; or
(ii) any breach of any covenant or agreement made by Buyer in this Agreement or any Ancillary Agreement; provided however, that indemnification obligations of the Buyer for breaches of representations and warranties pursuant to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a9.2(d)(i) shall not exceed the First Cap Amount or the Second Cap Amount, as applicable, provided further however, that the limitations in this paragraph shall not apply to Losses arising in respect of claims for breach of representations and warranties relating to Section 5.1 (relating to organization), Section 5.2 (relating to authorization) or Section 5.4 (relating to brokers).
(e) A party entitled to indemnification hereunder shall herein be referred to as an amount equal “Indemnitee.” A party obligated to 25 percent indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.” As soon as is reasonable after an Indemnitee either (i) receives notice of any claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder or (ii) sustains any Loss not involving a third-party claim or action which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under Article IX hereof, notify such Indemnitor in writing of such claim, action or Loss, as the case may be; provided, however, that failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the extent Indemnitor is actually prejudiced in its defense of the Acquisition Price; action by such failure.
(f) The Shareholders and Buyer agree that for purposes of (i) determining whether or not there has been a breach of a representation or warranty by the Company, the Shareholders or Buyer and (3ii) all amounts payable calculating the amount of Losses incurred arising out of or relating to any such breach, the references to Material Adverse Effect or other materiality qualifications (or correlative terms), including as expressed in accounting concepts such as GAAP, shall be disregarded.
(g) No right of indemnification hereunder shall be limited by reason of any investigation or audit conducted before or after the Closings or the knowledge of any party of any breach of a representation, warranty, covenant or agreement by the other party at any time, or the decision of any party to complete the Closings. Notwithstanding anything to the Indemnitees by contrary herein, Buyer shall have the Stockholders for claims for indemnification under right, irrespective of any knowledge or investigation of Buyer, to rely fully, and is relying fully, on the representations, warranties and covenants of the Company and the Shareholders contained herein.
(h) No limitation or condition of liability provided in this Section 8.2(a) Article IX shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant apply to the terms indemnification obligation of the Escrow Agreement and shall be borne pro rata by the Stockholders,Shareholders set forth in Section 8.2 hereof.
Appears in 1 contract
General Indemnification. (a) Each StockholderThe Guarantor and Lessee, agrees jointly and severally, with whether or not any of the transactions contemplated hereby shall be consummated, hereby assume liability for, and indemnify, protect, defend, save and keep harmless each other StockholderIndemnitee, except with respect to representationson an After Tax Basis, warranties from and covenants against any and all Claims that are made may be imposed on, incurred by or agreed asserted against such Indemnitee in any way relating to by such Stockholder individuallyor arising out of:
(a) any of the Operative Documents or any of the transactions contemplated thereby, with and any amendment, modification or waiver in respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents thereof; or
(collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (yb) the amount Properties or any part thereof or interest therein;
(c) the purchase, design, construction, preparation, installation, inspection, delivery, non-delivery, acceptance, rejection, ownership, management, possession, operation, rental, lease, sublease, repossession (whether by summary proceedings or otherwise), maintenance, repair, alteration, modification, addition, substitution, storage, transfer of all damagestitle, lossesredelivery, liabilitiesuse, obligationsfinancing, claims of any kindrefinancing, interest or expenses disposition, operation, condition, sale (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"any sale pursuant to the Lease), except return or other disposition of all or any part of any interest in the Properties or the imposition of any Lien (or incurring of any liability to refund or pay over any amount as a result of any Lien) thereon, including, without limitation: (l) personal injury, death or property damage, including Claims or penalties arising from any violation of law or in tort (strict liability or otherwise), (2) latent or other defects, whether or not discoverable, (3) any Claim based upon a violation or alleged violation of the terms of any Applicable Law or any restriction, easement, condition or covenant or other matter affecting title to the Properties or any part thereof, (4) the making of any Modifications in violation of any Insurance Requirements, (5) any Claim for patent, trademark or copyright infringement, and (6) Claims arising from any public improvements with respect to failures of representations and warranties and breaches of covenants the Properties resulting in any change or agreements that are made by special assessments being levied against the Properties or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of any Claim for utility "tap-in" fees;
(id) the failure offer, issuance, sale or delivery of the Fixed Rate Notes or the Note;
(e) the breach or alleged breach by the Guarantor or the Lessee of any representation or warranty made by any Stockholder in this Agreement, it or deemed made by it in any of the Transaction Documents Operative Document or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement required to be true and correct in all respects as of delivered by any Operative Document or the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders the Guarantor or the Lessee of any of their covenants covenant or agreements contained herein or therein, obligation made by it in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that Operative Document;
(1f) the Stockholders shall not have retaining or employment of any obligation to indemnify Parent broker, finder or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused financial advisor by the breach of any such surviving representation Guarantor or warranty or covenant of Lessee to act on its behalf in connection with the Stockholders contained in this Agreement, any of the Transaction Operative Documents, or the authorization of any certificate delivered pursuant broker or financial adviser retained or employed by the Guarantor or the Lessee so to this Agreement until Parent act, or Acquisition Sub have suffered Losses in excess the incurring of $200,000 in any fees or commissions by the aggregate (after Lessee or the Guarantor to which the Stockholders shall Indemnitees might be obligated to indemnify Parent and Acquisition Sub from and against Losses only subjected by virtue of their entering into the transactions contemplated by the Operative Documents;
(g) the existence of any Lien on or with respect to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent Properties, any Basic Rent or Supplemental Rent, title thereto, or any interest therein, including any Liens which arise out of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery possession, use, occupancy, construction, repair or rebuilding of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,any
Appears in 1 contract
General Indemnification. (a) Each StockholderAfter the Closing, Seller agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent Buyer and Acquisition Sub its Affiliates (each a “Buyer Indemnitee” and their respective officers, directors, employees, Affiliates and agents (collectively, together the "“Buyer Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any actual damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses, but expressly excluding any exemplary or punitive damages, except for any such damages to the extent actually awarded and paid or payable to a third party in connection with a Third-Party Claim) ("collectively, “Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, ”) as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by Seller in ARTICLE 2 and in any Stockholder in other Transaction Document to be true and correct as of the date of this Agreement, (ii) any breach by Seller of any of its covenants or agreements contained herein or in any other Transaction Documents, (iii) Closing Date Funded Indebtedness that remains outstanding following the Closing or Selling Expenses not included on the Closing Payoff Certificate, in each case solely to the extent not taken into account in the calculation of the Final Closing Consideration; (iv) any Income Taxes with respect to Seller or any of the Transaction Documents Companies for any Pre-Closing Tax Period (including for the avoidance of doubt, all Taxes that relate to the portion of a Straddle Period ending on the Closing Date), except to the extent any such Income Taxes were actually included as a liability in determining final Closing Net Working Capital, Closing Date Funded Indebtedness or the Selling Expenses, are attributable to Buyer’s breach of a Tax covenant under Section 4.1, or arise primarily due to actions taken by Buyer on the Closing Date after the Closing that are outside of the ordinary course of business and not contemplated by this Agreement, (v) Fraud, and (vi) the matters described in Section 5.2(a)(vi) of the Disclosure Schedule (with indemnification for such matters described in Section 5.2(a)(vi) of the Disclosure Schedule being referred to herein as the “Special Indemnity”), in each case, subject to the other provisions of this ARTICLE 5 (including the limitations and exclusions set forth in Section 5.4 and Section 5.5).
(b) After the Closing, Buyer agrees to indemnify, defend and hold Seller and its Affiliates (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from any certificate Loss suffered or other instrument paid, directly or document provided to Parent indirectly, as a result of (i) the failure of any representation or Acquisition Sub pursuant to warranty made by Buyer in ARTICLE 3 of this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)Agreement, or (ii) any breach or alleged breach by any Stockholders Buyer of any of their its covenants or agreements contained herein or thereinherein.
(c) The obligations to indemnify and hold harmless pursuant to clause (i) of Section 5.2(a) and pursuant to clause (i) of Section 5.2(b) shall survive the consummation of the transactions contemplated hereby only for the duration of any applicable Survival Period and the obligations to indemnify and hold harmless pursuant to clause (ii) of Section 5.2(a) and pursuant to clause (ii) of Section 5.2(b) shall survive the consummation of the transactions contemplated hereby only for the period set forth in Section 5.1(b), in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock pursuant to such clauses asserted with reasonable specificity in a Claim Notice that is received by the Escrow Agent pursuant Responsible Party prior to the terms end of the Escrow Agreement and such period, which such claims shall be borne pro rata by the Stockholders,survive until final resolution thereof.
Appears in 1 contract
General Indemnification. (a) Each Stockholder, agrees of ABC and the Shareholder hereby jointly and severally, with each other Stockholder, except with respect severally agree to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend indemnify and hold Parent harmless the Purchaser and Acquisition Sub its Affiliates and their respective directors, officers, directors, employees, Affiliates agents, successors and agents assigns (collectively, the "IndemniteesPurchaser Indemnified Parties") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims against and in respect of any kindand all Losses resulting from, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result arising out of, in connection with, based on or arising out of relating to:
(i) the failure of any representation or warranty made by any Stockholder of ABC or the Shareholder set forth in this Agreement, in any of the Transaction Documents Seller Document or in any certificate or other instrument delivered by or document provided to Parent on behalf of ABC or Acquisition Sub the Shareholder pursuant to this Agreement (other than the Underground Storage Tank Report prepared by Engineering Science, Inc. dated April 21, 1989, and the No Further Action Letter from the Ohio Department of Commerce to Edward Kowit, dated Sept. 17, 1992), to be true and correct in xxx xxxxects both on the date hereof and on and as of the Closing Date;
(ii) the breach of any covenant or other agreement on the part of ABC or the Shareholder under this Agreement or any Seller Document;
(iii) any Excluded Liability;
(iv) (A) any Release of Hazardous Materials in, on, at, or from the Company Properties which first occurred, or resulted from operations occurring, as of or prior to the Closing but only to the extent that any such Release was not the result of or exacerbated by the knowing or grossly negligent acts or omissions of Purchaser, its agents, employees, contractors, tenants, Affiliates, assigns or invitees; (B) any tort liability to third parties, including, without limitation, liability resulting from exposure to Hazardous Materials, to the extent that such liability is the result of any Release at the Company Properties which first occurred at the Company Properties as of or prior to the Closing but only to the extent that any such tort liability is not the result of or exacerbated by the knowing or grossly negligent act or omissions of Purchaser, its agents, employees, contractors, tenants, Affiliates, assigns or invitees; (C) notification or designation under any Environmental Law as a potentially responsible party for offsite disposal of Hazardous Materials by ABC, which disposal occurred as of or prior to the Closing, or the listing of any asset of ABC on the CERCLA National Priorities List or any similar list under any Environmental Law as a result of disposal of Hazardous Materials by ABC as of or prior to the Closing; or (D) any violation of Environmental Laws, in effect at the time of the violation, that first occurred or resulted from operations by ABC or at Company Properties occurring as of or prior to the Closing Date;
(v) the failure of ABC to have obtained, prior to Closing, the consent of the lessor of the Bedford Property to the assignment to Purchaser of the lease covering the Bedford Property; or
(vi) the Excluded Assets or the ownership, operation, lease or use thereof, or any action taken with respect thereto, by ABC or any other Person.
(b) Purchaser hereby agrees to indemnify and hold harmless ABC and its Affiliates, and their respective directors, officers, employees, agents, successors and assigns (collectively, the "Seller Indemnified Parties") from and against and in respect of any and all Losses resulting from, arising out of, based on or relating to:
(i) the failure of any representation or warranty of the Purchaser set forth in this Agreement or any Purchaser Document or any certificate and instrument delivered by or on behalf of the Purchaser pursuant to this Agreement, to be true and correct in all respects as of both on the date of this Agreement hereof and on and as of the Closing Date (unless made as of another date), or Date;
(ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation covenant or warranty or covenant other agreement on the part of the Stockholders contained in Purchaser under this Agreement, any of the Transaction Documents, Agreement or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate Purchaser Document; or
(after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2iii) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,any Assumed Liabilities.
Appears in 1 contract
General Indemnification. (a) Each StockholderFollowing the Closing, agrees Company Stockholders, jointly and severally, with shall indemnify and defend each other Stockholder, except with respect to representations, warranties of the Companies and covenants shall hold each of them harmless from and against all Losses (as hereinafter defined) that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator any of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of them:
(i) the failure By reason of any misrepresentation or breach of any representation or warranty made by any Stockholder Company Stockholders in this AgreementAgreement or in any Disclosure Schedule or certificate required to be furnished to CVC pursuant hereto ("Warranty Losses");
(ii) By reason of any breach of any covenant made by Company Stockholders in this Agreement or in any Disclosure Schedule or certificate required to be furnished to CVC pursuant hereto, in whether such covenant requires performance prior to or after the Closing;
(iii) On account of any Retained Liabilities (as hereinafter defined);
(iv) On account of (A) any Taxes of any of the Transaction Documents Companies with respect to any taxable period that ends on or in before the Closing Date, except to the extent that such Taxes are reflected as a current liability on the Closing Balance Sheet; (B) any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as Taxes of any of the date Companies with respect to any taxable period that begins before, but ends after the Closing Date to the extent such Taxes are allocable to the portion of this Agreement the taxable period up to and as of including the Closing Date (unless made as of another date"Pre-Closing Taxes"), or except to the extent such Taxes are reflected as a current liability on the Closing Balance Sheet; (iiC) any breach liability for Taxes pursuant to Treasury regulations section 1.1502-6 (or alleged breach by any Stockholders analogous state, local or foreign tax provision) of any consolidated, combined or unitary group of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, which any of the Transaction DocumentsCompanies was a member on or before the Closing Date, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable such liability is not attributable to the Indemnitees by the Stockholders for claims income or operations of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Pricea Company; and (3D) all amounts payable any liability resulting from any of the Companies being liable for the Taxes of another person pursuant with an agreement with any person entered into before the Closing Date (for purposes of determining Pre-Closing Taxes, personal property, real property and other ad valorem Taxes shall be apportioned on a per diem basis, income taxes for a taxable period that includes but does not end on the Closing Date shall be allocated on the basis of taxable income allocable to the Indemnitees pre-Closing and post-Closing periods on an interim closing of the books basis, and all other Taxes shall be apportioned on the basis of an interim closing of the books as of the end of the Closing Date). (Notwithstanding the foregoing provisions of this Section 9.2(iv), if there is an adjustment to an item of income or deduction with respect to a Tax return of the Companies and, if in connection therewith, there is an increase in the share of the Tax liability that would be borne by the Company Stockholders for claims for indemnification under this Section 8.2(asection for a taxable period (or portion thereof) shall prior to the Closing and a decrease in the Tax liability that would be paid by delivery of shares of Parent Common Stock borne by the Escrow Agent pursuant to Companies for a taxable period (or portion thereof) following the terms of the Escrow Agreement and shall Closing, or if in connection therewith there is an increase in Tax liability that would be borne pro rata by the Stockholders,Companies for a taxable period (or portion thereof) following the Closing and a decrease in the Tax liability that
Appears in 1 contract
Samples: Agreement and Plan of Recapitalization (International Knife & Saw Inc)
General Indemnification. (a) Each StockholderSubject to the provisions of Section 9.3, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to which shall be governed by such Stockholder individuallySection, with respect to which such Stockholder from and after the Closing, each Seller covenants and agrees with respect to himself only, to indemnify, defend defend, protect and hold Parent harmless the Buyer and Acquisition Sub and their respective its officers, directors, employees, stockholders, assigns, successors, advisors, representatives and Affiliates and agents (collectively, the "Indemnitees"“Buyer Indemnified Parties”) harmless from an amount equal to (x) a fractionfrom, the numerator of which is the number of Shares against and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount in respect of all damagesDamages asserted against, lossesimposed on, liabilitiesor suffered, obligationssustained, claims of incurred or paid by any kindBuyer Indemnified Party, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in each case in connection with, resulting from or arising out of, directly or indirectly (whether or not involving a third party claim), any of the following: (i) the failure breach of any representation or warranty made by any Stockholder Seller Party set forth in this Agreement, in any of the Transaction Documents Agreement or in any other agreement or any certificate delivered or other instrument provided in connection with or document provided related to Parent the consummation of the transactions contemplated by this Agreement; (ii) the breach of any covenant or Acquisition Sub agreement on the part of any Seller or, prior to the Closing, the Company, set forth in this Agreement or in any agreement or certificate executed and delivered by any Seller Party pursuant to this Agreement to be true and correct or in all respects as the transactions contemplated hereby, other than the Executive Employment Agreements; (iii) any Indebtedness for Borrowed Money of the date Company and any Transaction Costs of this Agreement and the Company as of the Closing in excess of the Indebtedness for Borrowed Money of the Company and Transaction Costs of the Company to the extent taken into account in determining the adjustments to the Purchase Price pursuant to Section 1.4; (iv) Taxes (or claims for Taxes): (A) arising in connection with or out of the operation of the Company’s business on or before the Closing Date (unless made determined, with respect to taxable periods that begin before and end after the Closing Date, in accordance with the allocation provisions of Section 6.6(b)); or (B) owing by any Person (other than the Company) for which the Company may be liable as a result of another datetransactions or circumstances occurring or existing on or before the Closing Date, including without limitation, (1) Tax required to be withheld by the Company in respect of Taxes payable by any of the Sellers, (2) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), (3) as a transferee or successor, or (ii4) any breach by contract; and (v) those items identified on Schedule 9.1(a). Notwithstanding anything to the contrary herein, to the extent that Escrow Funds are available to satisfy indemnification obligations under this Section 9.1(a), the Sellers’ liability shall be joint and several, and the Sellers’ liability under this Section 9.1(a) shall be on a pro rata basis in accordance with their respective Ownership Percentages to the extent that Escrow Funds are not so available.
(b) From and after the Closing, the Buyer covenants and agrees to indemnify, defend, protect and hold harmless the Sellers and their trustees, assigns, successors, advisors, Representatives and Affiliates (collectively, the “Seller Indemnified Parties”) from, against and in respect of all Damages asserted against, imposed on, or alleged breach suffered, sustained, incurred or paid by any Stockholders of any of their covenants or agreements contained herein or thereinSeller Indemnified Party, in each casecase in connection with, without giving effect to any "materiality", "knowledge" resulting from or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating todirectly or indirectly (whether or not involving a third party claim), in any of the nature of, or caused by following: (i) the breach of any such surviving representation or warranty or covenant of made by the Stockholders contained Buyer set forth in this Agreement, Agreement or in any of the Transaction Documents, other agreement or any certificate delivered or provided in connection with or related to the consummation of the transactions contemplated by this Agreement; (ii) the breach of any covenant or agreement on the part of the Buyer or, from and after Closing, the Company, set forth in this Agreement or in any agreement or certificate executed and delivered by the Buyer or the Company pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which transactions contemplated hereby, other than the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition PriceExecutive Employment Agreements; and (3iii) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms conduct of the Escrow Agreement and shall be borne pro rata by Company’s business after the Stockholders,Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mantech International Corp)
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article 8, agrees prior to the Closing the Company shall, and after the Closing each Seller shall (severally but not jointly and severallybased on each Seller’s Percentage Interests), with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition each of Parent, Merger Sub and and/or their respective officers, directors, employees, Affiliates and and/or agents (collectively, the "Indemnitees"each a “Purchaser Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) ("“Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, ”) actually incurred as a result of, in connection with, or arising out of (i) the failure any breach of any representation or warranty made by any Stockholder the Company (A) contained in this Agreement, in any of the Transaction Documents Article 3 or (B) in any certificate or other instrument or document provided delivered by the Company to Parent or Acquisition and Merger Sub pursuant to this Agreement to be true Agreement, and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders the Company (prior to Closing) of any of their its covenants or agreements contained herein which are to be performed on or thereinbefore the Closing Date.
(b) Subject to the other provisions of this Article 8, in Parent and Merger Sub shall, and after the Closing shall cause the Surviving Entity to, indemnify, defend and hold Sellers and their respective Affiliates, officers, directors, employees, and agents (each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1a “Seller Indemnitee”) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub harmless from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the actually incurred as a result of (i) any breach of any such surviving representation or warranty made by Parent or covenant of the Stockholders Merger Sub (A) contained in Article 4 or (B) in any certificate or other instrument or document delivered to the Company or the Representative pursuant to this Agreement, (ii) any breach by Parent of any of its covenants or agreements contained herein and (iii) any breach by the Transaction Documents, Surviving Entity (including by way of being the successor of Merger Sub and the Company) of any of its covenants or any certificate delivered agreements contained herein which are to be performed by the Surviving Entity after the Closing Date.
(c) The obligations to indemnify and hold harmless pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in Section 8.2 shall survive the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders applicable period set forth in Section 8.1, except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant asserted prior to the terms end of the Escrow Agreement and such applicable period (which claims shall be borne pro rata by the Stockholders,survive until final resolution thereof).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Logan's Roadhouse of Kansas, Inc.)
General Indemnification. (a) Each StockholderSeller, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties covenants and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend defend, protect and hold Parent harmless the Buyer Indemnified Parties from, against and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount in respect of all damagesDamages suffered, lossessustained, liabilitiesincurred or paid by any Buyer Indemnified Party, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in each case in connection with, resulting from or arising out of of, directly or indirectly (whether or not involving a third party claim): (i) the failure Breach of any representation or warranty made by any Stockholder Seller Party set forth in this Agreement, in any of the Transaction Documents Agreement or in any certificate or other instrument or document provided to Parent or Acquisition Sub be delivered by any Seller Party pursuant to Section 7.1 or 7.2; (ii) the Breach of any covenant or agreement on the part of any Seller Party set forth in this Agreement or in the Escrow Agreement; (iii) any Liability with respect to be true and correct in all respects as any matter described on Appendix C; (iv) any Indebtedness for Borrowed Money of the date Company, any Non-Ordinary Course Liabilities of this Agreement the Company and any other Liability of the Company (other than current Liabilities reflected on the Closing Balance Sheet as finally determined pursuant to Section 1.4); (v) the Benefit Plans and any and all benefits accrued under the Benefit Plans as of the Closing Date and any and all other Liabilities arising out of, or in connection with the form or operation of the Benefit Plans on or prior to the Closing Date; (unless made vi) any and all Liabilities resulting from any litigation or other Proceeding, pending or threatened, against the Company or arising out of the operations of the Company on or prior to the Closing Date including, without limitation, any such matter listed on Schedule 3.12; (vii) any Liability of any Seller or any of their Affiliates (other than the Company); (viii) any and all Liabilities for Taxes (A) in connection with or arising out of the Company’s activities or business on or prior to the Closing Date (determined, with respect to Tax periods that begin before and end after the Closing Date, in accordance with the allocation provisions of Section 6.6(b)) in excess of the amount of such Taxes reflected as a current liability in the computation of another dateClosing Working Capital, or (B) owing by any Person other than the Company for which the Company may be liable, including, without limitation (x) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), (y) as a transferee or successor, or (z) by contract, or (C) resulting from a Breach by any Seller Party of any provision of Section 6.6; and (ix) enforcing the indemnification rights with respect to any valid claim of the Buyer Indemnified Parties hereunder.
(b) The Buyer covenants and agrees to indemnify, defend, protect and hold harmless the Seller Indemnified Parties from, against and in respect of all Damages suffered, sustained, incurred or paid by any Seller Indemnified Party, in each case in connection with, resulting from or arising out of, directly or indirectly (whether or not involving a third party claim): (i) the Breach of any representation or warranty made by the Buyer set forth in this Agreement or in any certificate to be delivered by the Buyer pursuant to Section 8.1 or 8.2; or (ii) any breach or alleged breach by any Stockholders the Breach of any covenant or agreement on the part of their covenants the Buyer set forth in this Agreement or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Escrow Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,.
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the other provisions of this ARTICLE 9, agrees jointly after and severallysubject to the occurrence of the Closing, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to Seller shall indemnify, defend and hold Parent Buyer and Acquisition Sub its Affiliates and their Buyer’s and its Affiliates’ respective officers, directors, employees, Affiliates partners, lenders, representatives, successors, agents and agents permitted assigns (collectively, the "Indemnitees"each a “Buyer Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount against and in respect of all damages, losses, liabilitiesLiabilities, obligations, disbursements, injuries, demands, Proceedings, judgments, awards, settlements, assessments, deficiencies, Taxes, fines, penalties, fees, costs, reductions in value, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to (each a “Loss”) which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, Buyer Indemnitee has actually incurred as a result of, of or in connection with, or arising out of : (i) the failure any facts or circumstances which constitute an inaccuracy or breach of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders Company contained in this Agreement, and (ii) any nonfulfillment or breach by the Company of any covenant, obligation or agreements set forth in this Agreement which are to be performed by any Group Company on or before the Closing Date.
(b) Subject to the other provisions of this ARTICLE 9, after and subject to the occurrence of the Transaction DocumentsClosing, Seller shall indemnify, defend and hold each Buyer Indemnitee harmless from any Loss actually incurred as a result of or in connection with: (i) any certificate delivered facts or circumstances which constitute an inaccuracy or breach of any representation or warranty made by Seller contained in this Agreement, and (ii) any nonfulfillment or breach by Seller of any covenant, obligation or agreements set forth in this Agreement which are to be performed by Seller.
(c) Subject to the other provisions of this ARTICLE 9, after and subject to the occurrence of the Closing, Buyer agrees to, and shall, after the Closing, cause the Group Companies to, indemnify, defend and hold Seller and its Affiliates, and Seller’s and its Affiliates’ respective officers, directors, employees, partners, lenders, representatives, successors, agents and permitted assigns (each a “Seller Indemnitee”) harmless from and against and in respect of, and pay on behalf of or reimburse such Seller indemnitee as and when incurred for, any Loss which Seller Indemnitee has actually incurred as a result of or in connection with: (i) any facts or circumstances which constitute an inaccuracy or breach of any representation or warranty made by Buyer contained in this Agreement, (ii) any nonfulfillment or breach by Buyer of any covenant, obligation or agreements set forth in this Agreement which are to be performed by Buyer and (iii) any nonfulfillment or breach by the Company of any covenant, obligation or agreements set forth in this Agreement which are to be performed by any Group Company after the Closing Date.
(d) The obligations to indemnify and hold harmless pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in Section 9.2 shall survive the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders applicable period set forth in Section 9.1, except for claims for indemnification under this Section 8.2(a) shall be paid asserted by delivery of shares of Parent Common Stock by the Escrow Agent pursuant written notice to Seller or Buyer, as applicable, prior to the terms end of such applicable period (which claims shall survive until final resolution thereof and so long as the Escrow Agreement and shall be borne pro rata by the Stockholders,Party making such claim is contesting such claim in good faith).
Appears in 1 contract
Samples: Stock Purchase Agreement (Fox Factory Holding Corp)
General Indemnification. (a) Each StockholderSubject to Sections 10.02 and Article IX, agrees jointly from and severally, with each other Stockholder, after the Closing (except with respect to representationsclause (ii) below), warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to SELLER shall indemnify, defend and hold Parent harmless the Buyer Indemnified Parties from and Acquisition Sub against all Damages asserted against, resulting to, or imposed upon or incurred by reason of, or resulting from:
(i) any Third Party Claim or other Third Party Liability (other than obligations described in clause (ii) below, Product Liability Claims and their respective officers, directors, employees, Affiliates Third Party Claims and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding Third Party Liabilities reflected on the Closing Date multiplied Working Capital Statement and Payables incurred in the ordinary course from the Effective Time until the Closing) to the extent relating to or arising from the Business or events occurring or conditions existing prior to the Closing but only to the extent any resulting Damages relate to or arise from periods on or prior to the Closing;
(ii) any fees, expenses or other payments incurred and not previously paid or owed by SELLER or its Affiliates to any brokers, financial advisors or comparable other Persons retained or employed by it or them in connection with the Transactions;
(yiii) (A) the amount of all damages, losses, liabilities, obligations, claims inaccuracy or breach of any kindof the representations and warranties of SELLER contained in this Agreement (determined assuming that there are no materiality or Material Adverse Effect qualifications contained in such representations and warranties) and (B) the breach or nonfulfillment of any of the covenants and agreements of SELLER contained in this Agreement required to be performed before, interest at or expenses after the Closing; and
(includingiv) any product liability Claims with respect to the manufacture, without limitationsale, reasonable attorneys' fees and expenses) lease or delivery of any Products by the Business ("LossProduct Liability Claims"); provided, that such Products were -------- manufactured prior to the Closing and were sold prior to the date that is 90 days after the Closing Date.
(b) Subject to Section 10.02 and Article IX, from and after the Closing (except with respect to failures of representations clause (ii) below), each Company shall, jointly and warranties severally, indemnify, defend and breaches of covenants hold harmless the Seller Indemnified Parties from and against all Damages asserted against, resulting to, or agreements that are made imposed upon or incurred by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result reason of, in connection with, or arising out of resulting from:
(i) the failure of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate Third Party Claim or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct Third Party Liability (other than obligations described in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or clause (ii) below), to the extent relating to or arising from the Business or events occurring or conditions existing after the Closing but only to the extent any breach resulting Damages relate to periods from and after the Closing (including such obligations arising from and after the Closing from or alleged breach by related to any Stockholders Contracts of any the Companies other than the Affiliate Contracts that are not Continuing Affiliate Contracts regardless of their covenants when such contracts or other agreements contained herein or thereinwere entered into except, in each case, without giving effect to the extent such Third Party Claim or Third Party Liability arose from a breach of contract occurring prior to the Closing), and any Third Party Claim of any lender under the transactions contemplated by the Financing Letters;
(ii) any fees, expenses or other payments incurred and not previously paid or owed by BUYER or its Affiliates to any "materiality"brokers, "knowledge" financial advisors or similar qualifications; provided, however, that comparable other Person retained or employed by it or them in connection with the Transactions;
(1iii) (A) the Stockholders shall not have inaccuracy or breach of any obligation to indemnify Parent of the representations and warranties of BUYER contained in this Agreement (determined assuming that there are no materiality or Acquisition Sub from Material Adverse Effect qualifications contained in such representations and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by warranties) and (B) the breach of any such surviving representation or warranty or covenant of the Stockholders covenants and agreements of BUYER contained in this AgreementAgreement required to be performed before, at or after the Closing;
(A) any guarantee or obligation to assure performance given or made by SELLER or any Affiliate of SELLER with respect to any obligation of the Transaction DocumentsBusiness arising after the Closing, including any Continuing Performance Bonds, and (B) the failure of BUYER to cause any Continuing Performance Bonds to be released in accordance with Section 8.14; and
(v) any Product Liability Claims with respect to Products (A) manufactured prior to the Closing and sold on or any certificate delivered pursuant to after the date that is 90 days after the Closing Date and (B) manufactured after the Closing.
(c) For purposes of this Agreement until Parent or Acquisition Sub have suffered Losses in excess Section 10.01, the approval and consummation of $200,000 in the aggregate (after which transactions contemplated by the Stockholders Financing Letters shall be obligated deemed to indemnify Parent and Acquisition Sub from and against Losses only to have occurred after the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing.
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to Section 9.03 hereof, from and after the Closing, Kecy hereby agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent harmless Buyer, its Affiliates, and Acquisition Sub and each of their respective directors, officers, directors, employees, Affiliates agents and agents shareholders (collectively, the "“Kecy Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of against any and all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result Losses arising out of, in connection with, based upon or arising out of resulting from: (i) the failure any breach of any representation or warranty made by any Stockholder in this Agreement, Kecy herein or in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or Documents; (ii) any breach or alleged breach default in the performance by any Stockholders Kecy of any of their covenants covenant or agreements agreement contained herein or thereinin any of the Transaction Documents; (iii) any Excluded Asset or any Excluded Liability or any Third Party Claim based upon, in each caseresulting from or arising out of the business, operations, properties, assets or obligations of Kecy or any of its Affiliates (other than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on or prior to the Closing Date; and/or (iv) any Environmental Claim arising under RCRA or CERCLA and relating to Kecy’s operation of the Foam Line Operation prior to the Closing Date, including, without giving effect limitation, any off-site disposal of waste material generated from the Foam Line Operation. Kecy’s indemnification obligations under this Article IX shall first be satisfied out of the Escrow Funds pursuant to Section 2.10 herein and, thereafter, Buyer Indemnitees may seek indemnification to the extent permitted in this Article IX against Kecy.
(b) Subject to Section 9.04 hereof, from and after the Closing, Mxxxxx hereby agrees to indemnify, defend and hold harmless Buyer, its Affiliates, and each of their respective directors, officers, employees, agents and shareholders (collectively, the “Mxxxxx Indemnitees”) from and against any "materiality"and all Losses arising out of, "knowledge" based upon or similar qualificationsresulting from: (i) any breach of any representation or warranty made by Mxxxxx herein or in any of the Transaction Documents; (ii) any breach or default in the performance by Mxxxxx of any covenant or agreement contained herein or in any of the Transaction Documents; and/or (iii) any Environmental Claim arising under RCRA or CERCLA and relating to Kecy’s operation of the Foam Line Operation prior to the Closing Date, including, without limitation, any off-site disposal of waste material generated from the Foam Line Operation.
(c) From and after the Closing, Buyer hereby agrees to indemnify, defend and hold harmless Sellers, their respective Affiliates, and each of their respective directors, officers, employees, agents and shareholders (collectively, the “Seller Indemnitees”) from and against any and all Losses arising out of, based upon or resulting from: (i) any breach of any representation or warranty made by Buyer herein; (ii) any breach or default in the performance by Buyer of any covenant or agreement herein; (iii) ownership of the Purchased Assets after the Closing; (iv) the performance, a breach, a default, or other actions regarding the Assigned Contracts after the Closing; (v) the Assumed Liabilities; and/or (vii) the conduct or operation of the Company’s business from and after the Closing Date.
(d) In the event that a Person entitled to indemnification under this Article IX (the “Indemnified Party”) shall incur or suffer any Losses in respect of which indemnification may be sought under this Article IX against the Person required to provide indemnification under this Article IX (the “Indemnifying Party”), the Indemnified Party must assert a claim for indemnification within the Survival Period by a written notice which contains reasonably sufficient detail and information of the Losses as then known (the “Notice of Loss”) to the Indemnifying Party stating the nature and basis of such Losses. The Notice of Loss must be provided to the Indemnifying Party as soon as practicable, but in no event later than ninety (90) calendar days after the Indemnified Party acquires knowledge of the basis for the claim for indemnification. Notwithstanding the foregoing, any failure to provide the Indemnifying Party with a Notice of Loss in such a timely manner shall not relieve the Indemnifying Party from any liability that it may have to the Indemnified Party under this Section 9.01 except to the extent that the Indemnifying Party’s ability to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss in such a timely manner. If the Notice of Loss relates to a Third Party Claim, then the procedures set forth in Sections 9.01(e), (f) and (g) shall be applicable.
(e) Within thirty (30) days after receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any Action by a third Person (“Third Party Claim”) in respect of which the Indemnified Party will seek indemnification hereunder, the Indemnified Party shall so notify in writing the Indemnifying Party, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party under this Section 9.01 except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced by the Indemnified Party’s failure to give such notice. In no event will the Indemnified Party admit any liability with respect thereto or settle, compromise, pay or discharge the same without the prior written consent of the Indemnifying Party. The Indemnifying Party shall have the right to assume the defense (at the Indemnifying Party’s expense) of any such claim through counsel of the Indemnifying Party’s own choosing by so notifying the Indemnified Party within 45 days of the receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense.
(1f) If the Stockholders Indemnifying Party chooses to defend or prosecute a Third Party Claim, the Indemnified Party shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such Third Party Claim, and making employees of the Buyer reasonably available to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that, by its terms, fully and unconditionally releases and discharges the Indemnified Party from the full amount of any and all direct or indirect obligations or liability in connection with such Third Party Claim and imposes only monetary damages to be paid solely by the Indemnifying Party without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party. None of the Indemnified Party or any of its Affiliates may settle or otherwise dispose of any Third Party Claim for which the Indemnifying Party may have a liability under this Agreement without the prior written consent of the Indemnifying Party, which consent may be withheld in the sole discretion of the Indemnifying Party. The Indemnifying Party shall not have be liable under this Section 9.01(f) for any obligation settlement, compromise or discharge affected without its consent in respect of any claim for which indemnity may be sought hereunder. No Indemnified Party shall take any action the purpose of which is to indemnify Parent prejudice the defense of any claim subject to indemnification hereunder or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused to induce a third party to assert a claim subject to indemnification hereunder.
(g) After written notice by the breach Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such surviving representation Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any costs or warranty or covenant fees subsequently incurred by such Indemnified Party in connection with the defense thereof. If the Indemnifying Party does not assume control of the Stockholders contained in defense of such Third Party Claim within 45 days after the Indemnifying Party’s receipt of the notice required pursuant to Section 9.01(d) of this Agreement, any of then the Transaction Documents, or any certificate delivered pursuant Indemnified Party shall have the right to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,defend such claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (ARC Group Worldwide, Inc.)
General Indemnification. (ai) Each StockholderIndemnification for the Benefit of the Purchaser by the Sellers. The Sellers shall indemnify the Purchaser and its Affiliates, agrees jointly and severallyshareholders, with each other Stockholderpartners, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates agents, representatives, successors and agents permitted assigns and the Company (collectively, the "IndemniteesSeller Indemnified Parties") and save and hold each of them harmless from an amount equal to against and pay on behalf of or reimburse such Seller Indemnified Parties as and when incurred for any direct or indirect loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, Tax, penalty, fine or expense, whether or not arising out of third party claims (x) a fractionincluding interest, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitationpenalties, reasonable attorneys', consultants' and experts' fees and expenses) expenses and all amounts paid in investigation, defense or settlement of any of the foregoing), but expressly excluding consequential damages and lost profits (collectively, "LossLosses"), except with respect to failures of representations and warranties and breaches of covenants which any such Seller Indemnified Party may suffer, sustain or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectlybecome subject to, as a result of, in connection with, relating or arising out of incidental to or by virtue of: (ia) the failure any facts or circumstances which constitute a breach of any representation or warranty made by any Stockholder in of the Sellers under Sections 2 or 3 of this Agreement, in (it being understood and agreed that for purposes of this Section 6 and the Indemnification Agreement Section 2M(i) shall be deemed not to include any qualifications for materiality); or (b) any nonfulfillment or breach of any covenant, agreement or other provision by the Sellers under this Agreement or any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement Schedules attached hereto required to be true performed or complied with by the Sellers before or after the Closing; or (c) any claim by any Person (other than the Purchaser) with respect to, or arising as a result of, any Acquisition Proposal or Third Party Acquisition proposed prior to the Closing Date. If and correct to the extent any provision of this Section 6B is unenforceable for any reason, each Seller hereby agrees to make the maximum contribution to the payment and satisfaction of any Loss for which indemnification is provided for in all respects as this Section 6B which is permissible under applicable Laws. Notwithstanding anything contained herein, in no event shall the Company be required to provide indemnification or contribution for any obligation of the date of Seller under this Agreement and as of the Closing Date (unless made as of another date), or Section 6B.
(ii) Indemnification for the Benefit of the Sellers by the Purchaser. The Purchaser shall indemnify the Sellers and their Affiliates, shareholders, officers, directors, employees, agents, representatives, successors and permitted assigns (collectively, the "Purchaser Indemnified Parties") and hold them harmless against any breach Losses which the Purchaser Indemnified Parties may suffer, sustain or alleged breach by any Stockholders of any of their covenants or agreements contained herein or thereinbecome subject to, as a result of, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out ofconnection with, relating to, in the nature or incidental to or by virtue of, : (a) any facts or caused by the circumstances which constitute a breach of any such surviving representation or warranty or covenant of the Stockholders contained in Purchaser under Section 4 of this Agreement; or (b) any nonfulfillment or breach of any covenant, any of agreement or other provision by the Transaction Documents, or any certificate delivered pursuant to Purchaser under this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount required to be payable to the Indemnitees performed or complied with by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of Purchaser before or after the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing.
Appears in 1 contract
Samples: Share Purchase Agreement (Gerber Childrenswear Inc)
General Indemnification. (ai) Each StockholderIndemnification for the Benefit of the Company and the Parent by ---------------------------------------------------------------- the Sellers. Following the Effective Time, agrees the Management Sellers, jointly and ----------- severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold shall indemnify the Parent and Acquisition Sub and their respective its Affiliates, shareholders, partners, officers, directors, employees, Affiliates agents, representatives, successors and agents permitted assigns and the Company (collectively, the "IndemniteesSeller Indemnified ------------------ Parties") and save and hold each of them harmless from an amount equal to against and pay on behalf of ------- or reimburse such Seller Indemnified Parties as and when incurred for any direct or indirect loss, liability, demand, claim, action, cause of action, cost, damage (x) a fractionother than consequential damages and damages for lost profits), the numerator deficiency, Tax, penalty, fine or expense, whether or not arising out of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by third party claims (y) the amount of all damagesincluding interest, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitationpenalties, reasonable attorneys', consultants' and experts' fees and expensesexpenses and all amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, "LossLosses"), except with respect to failures of representations and warranties and breaches of covenants which any such ------ Seller Indemnified Party may suffer, sustain or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectlybecome subject to, as a result of, in connection with, relating or arising out of incidental to or by virtue of: (ia) the failure any facts or circumstances which constitute a breach of any representation or warranty made by any Stockholder in of the Company or the Sellers under this Agreement, or in any of the Transaction Documents or in any certificate certificates or other instrument instruments or document provided to Parent documents furnished by the Company or Acquisition Sub the Sellers pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date Agreement; (unless made as of another date), or (iib) any breach nonfulfillment or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation covenant, agreement or warranty other provision by the Company or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to Sellers under this Agreement until Parent required to be performed or Acquisition Sub have suffered Losses in excess complied with by the Company or the Sellers at or prior to the Effective Time; (c) any nonfulfillment or breach of $200,000 in any covenant, agreement or other provision by the aggregate (Sellers under this Agreement required to be performed or complied with by the Sellers after which the Stockholders shall be obligated to indemnify Parent Effective Time. If and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) any provision of this Section 8B is unenforceable for any reason, each Seller hereby agrees to make the aggregate amount to be payable maximum contribution to the Indemnitees by payment and satisfaction of any Loss for which indemnification is provided for in this Section 8B which is permissible under applicable Laws. Notwithstanding anything contained herein, in no event shall the Stockholders Company be required to provide indemnification or contribution for claims any obligation of indemnification the Sellers under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,8B(i).
Appears in 1 contract
Samples: Merger Agreement (Multex Com Inc)
General Indemnification. (a) Each StockholderSubject to the conditions set forth in this Section 6.2, agrees jointly and severallysubsequent to the Closing Date, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend the Seller shall indemnify and hold Parent harmless the Purchaser from and Acquisition Sub and their respective officersagainst any liability (whether fixed or unfixed, directorsliquidated or unliquidated), employeesloss, Affiliates and agents (collectivelyactual or punitive damage, the "Indemnitees") harmless from an amount equal to (x) a fractiondeficiency, the numerator demand, claim, suit, action or cause of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damagesaction, lossesfine, liabilitiespenalty, obligations, claims or cost or expense of any kindand all investigation or proceeding, interest or expenses settlement, compromise (including, without limitation, including reasonable attorneys' attorney's fees and expenses) actually suffered or incurred, but excluding consequential, indirect or similar types of damage not the direct result of the harm suffered or incurred (collectively, "LossLOSSES"), except with respect to failures ) by the Purchaser and arising out of or resulting from the untruth and inaccuracy of any of the representations and warranties and breaches of the Seller contained in Section 3.1 or from any breach of the covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify of the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder Seller set forth in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1i) the Stockholders Purchaser shall not have any obligation be entitled to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered indemnification pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses Section 6.2(a) with respect to any individual Loss unless such Loss exceeds $250,000; (ii) the Purchaser shall not be entitled to indemnification pursuant to this Section 6.2(a) with respect to any individual Loss in excess of $200,000 250,000, until all such Losses (including the first $250,000 of each such individual Loss in excess of $250,000) exceed, in the aggregate (after aggregate, $15,000,000, in which case the Stockholders Purchaser shall be obligated entitled to indemnify Parent and Acquisition Sub from and against Losses indemnification only to the extent they such Losses exceed $200,000)15,000,000; (2iii) the aggregate amount Purchaser shall not be entitled to be payable indemnification pursuant to this Section 6.2(a) with respect to the Indemnitees untruth or inaccuracy of any representation or warranty contained in Section 3.1 if the Seller can prove by a preponderance of the evidence that any director, officer, counsel, accountant or other representative of the Purchaser had actual knowledge at any time on or prior to the Closing Date of the events or conditions constituting or resulting in such untruth or inaccuracy; (iv) notwithstanding anything to the contrary contained herein, the Purchaser shall not be entitled to indemnification hereunder for any
(b) Subject to the conditions set forth in this Section 6.2, subsequent to the Closing Date, the Purchaser shall indemnify the Seller and its successors and assigns and hold them harmless against any Loss which the Seller may suffer, sustain or become subject to as a result of any breach by the Stockholders for claims Purchaser of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent any of its covenants, representations, warranties or obligations set forth herein, and as a result of the Acquisition Price; ownership and/or operations of the Companies from and after the Closing Date.
(3c) all amounts payable to the Indemnitees by the Stockholders No Person shall be liable for claims any claim for indemnification under this Section 8.2(a6.2 unless written notice of a claim for indemnification is delivered by the Person seeking indemnification (the "INDEMNITEE") to the Person from whom indemnification is sought (the "INDEMNITOR") with respect to breaches of the representation and warranties before the expiration of the Survival Period and within 30 days after the Indemnitee has received notice or knowledge of the matter giving rise to such claim for indemnification. All notices given pursuant to this subsection (c) shall set forth with reasonable specificity the basis for the claim for indemnification and the amount of Losses with respect to such claim. Failure of the Indemnitee to give notice within said 30-day period shall not be paid deemed a waiver of its rights under this Section 6.2 except to the extent such failure shall have actually prejudiced the Indemnitor or caused it to incur additional costs, expenses or liabilities.
(d) Promptly, and in any event within 30 days, after the assertion by delivery any third party of shares any claim, demand or notice (a "THIRD PARTY CLAIM") against an Indemnitee under this Section 6.2 that results or may result in the incurrence by such Indemnitee of Parent Common Stock any Loss for which such Indemnitee would be entitled to indemnification hereunder, such Indemnitee shall notify the Indemnitor of such Third Party Claim in writing. By written notice (the "DEFENSE NOTICE") to the Indemnitee within 30 days after receipt by the Escrow Agent Indemnitor of notice of the Third Party Claim (or sooner if such claim so requires), the Indemnitor shall notify the Indemnitee that the Indemnitor will conduct, at its own expense, the diligent defense against the Third Party Claim in its own name or, if necessary, in the name of the Indemnitee and shall specify the counsel the Indemnitor shall appoint to defend such Third Party Claim. The Indemnitee shall have the right to employ separate counsel in any such Third Party Claim and/or to participate in the defense thereof at its own expense; provided, however, that if (i) the Indemnitee shall have received an opinion of counsel reasonably acceptable to the Indemnitor to the effect that the interests of the Indemnitee and the Indemnitors with respect to the Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules or (ii) the employment of such separate counsel has been specifically authorized in writing by the Indemnitor, the reasonable fees and expenses of such separate counsel shall be borne by the Indemnitor. If the Indemnitor shall fail to give the Defense Notice within such 30-day period (or such shorter period if such claim so requires), the Indemnitor shall be deemed to have elected not to conduct the defense of the subject claim. The party conducting the defense of any Third Party Claim shall use reasonable efforts to keep the other party appraised of all significant developments with respect thereto. No Third Party Claim may be settled by the Indemnitor without the written consent of the Indemnitee, which consent shall not be unreasonably withheld; provided, however, that if such settlement involves the payment of money only and the Indemnitee is completely indemnified therefor and the Indemnitee refuses to consent to such settlement, the Indemnitor shall cease to be obligated for such Third Party Claim. The Indemnitee shall not settle any Third Party Claim that is being defended in good faith by the Indemnitor. Failure of the Indemnitee to give timely, complete or accurate notice as provided in this subsection (d) will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise damaged or prejudiced as a result of such failure to give timely notice.
(e) The amount of any Loss subject to indemnification under this Section 6.2 shall be calculated net of any amounts which have been previously recovered by the Indemnitee under insurance policies (other than New Environmental Loss Policies, as defined in Section 6.5) or other collateral sources (such as contractual indemnities of any Person which are contained outside this Agreement), and such Indemnitee hereby covenants that it will not release any such collateral sources from any obligations they
(f) All Losses subject to indemnification hereunder shall be calculated net of any tax benefits realized by the Indemnitee as a result of the Losses, net of any taxes payable by the Indemnitee as a result of recoveries of the Losses, including recoveries pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,indemnification hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nci Building Systems Inc)
General Indemnification. (a) Each StockholderSection 9.2.1 Subject to the provisions of Section 9.5, agrees jointly and severallyif after the Closing Date, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective the Purchaser and/or its officers, directors, employees, Affiliates and and/or agents (collectivelyeach a “Purchaser Indemnitee” and together the “Purchaser Indemnitees”) suffer, the "Indemnitees") harmless from an amount equal to (x) a fractionwithout any duplication, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) ("“Loss")”) as a result of, except with respect in connection with, or arising out of (i) any breach of any representation or warranty made by the Company or the Seller contained in Article III or Article IV and (ii) any failure by the Company to failures perform any of representations and warranties and breaches of its covenants or agreements that contained herein which are made to be performed by the Company at or agreed before the Closing, and (iii) any failure by the Seller to perform any of its covenants or agreements contained herein which are to be performed by the Seller on or after the Closing Date, then, subject to the other provisions of this Article IX, such Stockholder individuallyPurchaser Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the Escrow Account to the extent of available funds, with respect to which and then, the Seller shall indemnify the Purchaser Indemnitees for such Stockholder Loss.
Section 9.2.2 After the Closing, each of the Purchaser and the Company agrees to indemnify indemnify, defend and hold the Indemnitees Seller, its members, officers, directors, employees, Affiliates and/or agents (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from all Losses, any Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure any breach of any representation or warranty made by any Stockholder the Purchaser in this AgreementAgreement contained in Article V, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach failure by the Purchaser to perform any of its covenants or alleged agreements contained herein, and (iii) any breach by the Company or any Stockholders of its Subsidiaries of any of their its covenants or agreements contained herein which are to be performed by the Company or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) of its Subsidiaries after the Stockholders shall not have any obligation Closing.
Section 9.2.3 The obligations to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in hold harmless pursuant to Section 9.2.1 and pursuant to Section 9.2.2 shall survive the nature of, or caused by the breach of any such surviving representation or warranty or covenant consummation of the Stockholders contained transactions contemplated hereby for the period set forth in this AgreementSection 9.1, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to such clauses asserted prior to the terms end of such period which claims shall survive until final resolution thereof.
Section 9.2.4 Seller shall have no right of contribution, reimbursement or subrogation, or any similar rights, against the Escrow Agreement Company or any of its Subsidiaries for any indemnification payment made or owing by Seller, and shall be borne pro rata by the Stockholders,Seller hereby waives any and all such rights.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Diversified Holdings)
General Indemnification. (a) Each StockholderSubject to Sections 10.02 and 10.03, agrees from and after the Closing Date, the KRG Stockholders, jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, hereby agree to indemnify, defend and hold Parent harmless Sunrise and Acquisition Merger Sub and their respective Affiliates (including, after the Effective Time, the Surviving Corporation and its Affiliates) and each of their respective directors, officers, directors, employees, Affiliates employees and agents (each, a “Sunrise Indemnified Party” and, collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"“Sunrise Indemnified Parties”), except with respect to failures of representations from and warranties against any and breaches of covenants all Losses incurred or agreements that are made suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result Sunrise Indemnified Parties arising out of, in connection with, based upon or arising out resulting from any of the following:
(i) any breach by any KRG Stockholder or the failure Company of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents KRG Stockholder or the Company contained in or referred to in Article 4 or in any schedule or exhibit or in the certificate delivered by or other instrument on behalf of any KRG Stockholder or document provided to Parent or Acquisition Sub the Company pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another dateSection 8.02(a), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving regard for any exception for materiality, material adverse effect or Material Adverse Effect contained therein;
(ii) any breach by any KRG Stockholder or the Company of, or any failure of any KRG Stockholder or the Company to perform, any "materiality"of the covenants, "knowledge" agreements or similar qualifications; providedobligations contained in or made pursuant to this Agreement;
(iii) any Medicare Cap Liability;
(iv) all Transaction Expenses which have not been paid prior to Closing or which have not been reflected in the calculation of Merger Consideration pursuant to the provisions of Section 3.01(a) of this Agreement;
(v) any failure by the Acquired Companies or their respective Affiliates to comply with applicable securities Laws (including federal and state securities registration and broker-dealer Laws, however“blue sky” Laws, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from Investment Advisers Act and against any Loss resulting fromthe Investment Company Act), in connection with, arising out of, relating toto or resulting from any capital or other fund raising activities on or prior to the Closing Date;
(vi) any facts, circumstances or conditions, existing, initiated or occurring prior to the Closing Date which have resulted or may result in any Liabilities under any Environmental Law;
(vii) the preparation and submission of any claims and cost reports and any other activity prior to Closing in connection with the Business which is the basis for any suspension, disbarment, or exclusion under any Government Program, or is prohibited by 42 U.S.C. Section 1320a-7a, 42 U.S.C. Section 1320a-7b, 18 U.S.C. Section 1347, 18 U.S.C. Section 1035, or 31 U.S.C. Section 3729-3733, or any similar state laws;
(viii) any demand or claim made pursuant to Section 262 with respect to any Appraisal Shares, up to an amount equal to the excess, if any, of (A) the sum of (i) any amounts Sunrise, Merger Sub, the Company or the Surviving Corporation is required by a court of competent jurisdiction to pay, or pays in settlement, in respect of any Appraisal Shares plus (ii) any other Losses suffered by Sunrise, Merger Sub, the nature Company or the Surviving Corporation resulting from any demand or claim made pursuant to Section 262 with respect to any Appraisal Shares, over (B) the amount of the applicable Merger Consideration (if any) into which such Appraisal Shares would have been converted in the Merger had such shares not been Appraisal Shares (without giving effect to the amount of the Final Working Capital Payment, if any, payable with respect thereto under Section 3.08(c));
(ix) any actions taken (or omitted to be taken) prior to the Effective Time by any Acquired Company or its respective officers, directors or partners in connection with the negotiation and consummation of the Merger and the other Contemplated Transactions, including in connection with the approval and adoption of the Merger and the other Contemplated Transactions; and
(x) any matters described in Section 10.01(a)(x) of the Disclosure Schedule.
(b) Subject to Sections 10.02 and 10.03, from and after the Closing Date, subject to Section 10.04(b), the ACS Stockholder hereby agrees to indemnify, defend and hold harmless the Sunrise Indemnified Parties, from and against any and all Losses incurred or suffered by the Sunrise Indemnified Parties arising out of, based upon or resulting from any of the following:
(i) any breach by the ACS Stockholder of any representation or warranty of the ACS Stockholder contained in or referred to in Article 4 or in any schedule or exhibit or in the certificate delivered by or on behalf of the ACS Stockholder pursuant to Section 8.02(a), in each case, without regard for any exception for materiality, material adverse effect or Material Adverse Effect contained therein; and
(ii) any breach by the ACS Stockholder of, or caused by the breach of any such surviving representation or warranty or covenant failure of the Stockholders contained in this AgreementACS Stockholder to perform, any of the Transaction Documentscovenants, agreements or obligations contained in or made pursuant to this Agreement.
(c) Subject to Sections 10.02 and 10.03, from and after the Closing Date, Sunrise hereby agrees to indemnify, defend and hold harmless each Principal Stockholder and their respective Affiliates, and each of their respective directors, officers, employees and agents (each, a “Principal Stockholder Indemnified Party” and, collectively, the “Principal Stockholder Indemnified Parties”), from and against any and all Losses incurred or suffered by Principal Stockholder Indemnified Parties arising out of, based upon or resulting from any of the following:
(i) any breach by Sunrise or Merger Sub of any representation or warranty contained in or referred to in Article 5 or in any schedule or exhibit or in the certificate delivered by or on behalf of Sunrise and Merger Sub pursuant to Section 8.03(a), in each case, without regard for any exception for materiality, material adverse effect or Sunrise Material Adverse Effect contained therein; and
(ii) any breach by Sunrise or Merger Sub of, or any certificate delivered failure of Sunrise or Merger Sub to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Agreement until Parent Agreement.
(d) In the event that a Person entitled to indemnification under this Article 10 (the “Indemnified Party”) will incur or Acquisition Sub have suffered suffer any Losses in excess respect of $200,000 which indemnification may be sought under this Article 10 against the Person required to provide indemnification under this Article 10 (collectively, the “Indemnifying Party”), the Indemnified Party will assert a claim for indemnification by providing a written notice (the “Notice of Loss”) to the Indemnifying Party stating the nature and, in reasonable detail, the basis of such Notice of Loss. The Notice of Loss will be provided to the Indemnifying Party as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss. Notwithstanding the foregoing but subject to Section 10.02, any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss in a timely manner as aforesaid, will not relieve any Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 10.01 except to the extent that the ability of such Indemnifying Party to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss. If the Notice of Loss relates to a Third Party Claim, the procedures set forth in Section 10.01(e) will be applicable. If the Notice of Loss does not relate to a Third Party Claim, the Indemnifying Party will have thirty (30) days from the date of receipt of such Notice of Loss to object to any of the subject matter and any of the amounts of the Losses set forth in the aggregate Notice of Loss, as the case may be, by causing the Indemnifying Party to deliver written notice of objection thereof to the Indemnified Party. If the Indemnifying Party fails to send a notice of objection to the Notice of Loss within such thirty (after which 30) day period, the Stockholders shall Indemnifying Party will be deemed to have agreed to the Notice of Loss and will be obligated to indemnify Parent pay to the Indemnified Party the portion of the amount specified in the Notice of Loss to which the Indemnifying Party has not objected. If the Indemnifying Party sends a timely notice of objection, the Indemnifying Party and Acquisition Sub the Indemnified Party will use their Commercially Reasonable Efforts to settle (without an obligation to settle) such claim for indemnification. If the Indemnifying Party and the Indemnified Party do not settle such dispute within thirty (30) days after the Indemnified Party’s receipt of the Indemnifying Party’s notice of objection, the Indemnifying Party and the Indemnified Party will be entitled to seek enforcement of their respective rights under this Article 10.
(e) Promptly after receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any action, suit or proceeding by a third Person (a “Third Party Claim”) in respect of which the Indemnified Party will seek indemnification hereunder, the Indemnified Party will so notify in writing the Indemnifying Party, but subject to Section 10.02 any failure so to notify the Indemnifying Party will not relieve the Indemnifying Party from and against Losses only any Liability that it may have to the Indemnified Party under this Section 10.01 except to the extent they exceed $200,000)that the ability of the Indemnifying Party to defend the Third Party Claim is materially prejudiced by the Indemnified Party’s failure to give such notice. In no event will the Indemnified Party admit any Liability with respect to such Third Party Claim or settle, compromise, pay or discharge such Third Party Claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. With respect to any such claim as to which the Indemnifying Party has acknowledged in writing the obligation to indemnify the Indemnified Party hereunder, the Indemnifying Party will have the right to assume the defense (at the expense of the Indemnifying Party) of any such claim through counsel chosen by the Indemnifying Party by causing the Indemnifying Party to notify the Indemnified Party within thirty (30) days after the receipt by the Indemnifying Party of such notice from the Indemnified Party; (2) the aggregate amount to provided, that any such counsel will be payable reasonably satisfactory to the Indemnitees Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal Indemnifying Party; provided, that the Indemnified Party will have the right to 25 percent employ counsel to represent it at the expense of the Acquisition Price; Indemnifying Party if the Indemnified Party has been advised by its counsel that there is a potential conflict between the interests of the Indemnified Party and (3) all amounts payable to any Indemnifying Party, in which event the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall reasonable fees and expenses of such separate counsel will be paid by delivery the Indemnifying Party. The Indemnifying Party and the Indemnified Party each agree to render to the other parties such assistance as may reasonably be requested in order to ensure the proper and adequate defense of shares any such claim, which assistance will include, to the extent reasonably requested by a party, the retention, and the provision to such party, of Parent Common Stock records and information reasonably relevant to such Third Party Claim, and making employees of the other party available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. The Indemnifying Party may not settle or otherwise dispose of any Third Party Claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless such settlement includes only the payment of monetary damages (which are fully paid by the Escrow Agent Indemnifying Party), does not impose any injunctive or equitable relief upon the Indemnified Party, does not require any admission or acknowledgment of liability or fault of the Indemnified Party and contains an unconditional release of the Indemnified Party in respect of such claim. None of the Indemnified Party or any of its Affiliates may settle or otherwise dispose of any Third Party Claim for which the Indemnifying Party may have a Liability under this Agreement without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.
(f) With respect to any claim as to which the Indemnifying Party will have acknowledged in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party hereunder, after written notice by the Indemnifying Party to the Indemnified Party of the election by the Indemnifying Party to assume control of the defense of any such Third Party Claim, the Indemnifying Party will not be liable to such Indemnified Party hereunder for any costs or fees subsequently incurred by such Indemnified Party in connection with the defense thereof, except if the Indemnified Party has the right to employ counsel to represent it at the expense of the Indemnifying Party as set forth in Section 10.01(e). If the Indemnifying Party does not assume control of the defense of such Third Party Claim within thirty (30) days after the receipt by the Indemnifying Party of the notice required pursuant to Section 10.01(e), the terms Indemnified Party will have the right to defend such claim in such manner as it may deem appropriate at the reasonable cost and expense of the Escrow Agreement and shall be borne pro rata by the Stockholders,Indemnifying Party.
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the other provisions of this ARTICLE VIII, agrees jointly and after the Closing, the Stakeholders shall, pro rata in accordance with each such Stakeholder’s Percentage Interest, severally, with each other Stockholder, except and not jointly with respect to representationsany Loss, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent, Merger Sub, Surviving Corporation and their respective Subsidiaries, officers, directors, employees, managers, members, partners, Affiliates and agents (each a “Parent Indemnitee”) harmless from and against (i) any and all damages, losses, liabilities, obligations, Taxes, demands or claims of any kind, deficiencies, costs, interest, expenses, awards, judgments and penalties (each a “Loss”) suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of any (x) breach of any representation or warranty (A) contained in ARTICLE III or (B) in any certificate delivered by the Company to Parent or Merger Sub pursuant to this Agreement, (y) any breach by the Company of any of the covenants or agreements contained herein which are to be performed by the Company, its Subsidiaries or Affiliates on or before the Closing Date or (z) a determination by a Taxing Authority, following a payment by the Parent to the Stakeholders pursuant to Section 10.01(b)(1), that a Tax Refund is less than the amount so paid by the Parent (provided that the obligation in this clause (z) shall survive until the Survival Period Termination Date), (ii) Losses suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of any Agreed Indemnifiable Event and any Resolution thereof and (iii) breach by Stakeholder Representative or any of its officers, directors, employees, managers, members, partners, Affiliates and agents of any of the covenants or agreements contained herein which are to be performed by the Stakeholder Representative, whether on, before or after the Closing Date.
(b) Subject to the other provisions of this ARTICLE VIII, after the Closing, Parent and Acquisition Sub the Surviving Corporation, jointly and severally, shall indemnify, defend and hold each of the Stakeholders and their respective officers, directors, employees, managers, members, partners, Affiliates and agents (collectively, the "Indemnitees"each a “Seller Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of against any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, Losses suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure any breach of any representation or warranty made by any Stockholder (A) contained in this Agreement, in any of the Transaction Documents ARTICLE IV or (B) in any certificate or other instrument or document provided to delivered by Parent or Acquisition Merger Sub to the Company pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach by Parent or alleged breach by any Stockholders Merger Sub of any of their the covenants or agreements contained herein or therein, in each case, without giving effect which are to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify be performed by Parent or Acquisition Sub from and against any Loss resulting fromMerger Sub, arising out ofwhether on, relating to, in before or after the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing Date.
Appears in 1 contract
General Indemnification. (a) Each StockholderIf, agrees jointly and severallyafter the Closing Date, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective Purchaser and/or its officers, directors, employees, directors and/or Affiliates (each a “Purchaser Indemnitee” and agents (collectively, together the "“Purchaser Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all suffer any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expensesbut excluding consequential damages (Folgeschaeden) or loss of profits (entgangener Gewinn)) ("“Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, ”) as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder the Sellers in this Agreement, in any of the Transaction Documents Agreement or in any certificate or other instrument or document provided to Parent or Acquisition Sub delivered pursuant to this Agreement to be true and correct in all respects as of the date made (provided, however, that for the purposes of this Agreement and as of the Closing Date (unless made as of another dateSection 9.2(a)(i), in determining whether there has been a breach of any such warranty or representation, if any such warranty or representation is qualified in any respect by materiality or Material Adverse Effect, such qualifications or exceptions will be ignored), and (ii) any breach or alleged breach by any Stockholders the Sellers of any of their covenants or agreements contained herein which are to be performed by the Sellers on or thereinbefore the Closing Date, then, subject to the other provisions of this Article 9, and except as set forth in Section 9.4(f) and the last sentence of Section 9.6(h), such Purchaser Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss solely from the Escrow Account or by drawing on the General Credit Support, as the case may be.
(b) After the Closing, Purchaser agrees to indemnify, defend and hold the Sellers and/or their respective officers, directors and/or Affiliates (each casea “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from any Loss suffered or paid, without giving effect to any "materiality"directly or indirectly, "knowledge" or similar qualifications; provided, however, that as a result of (1i) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach failure of any such surviving representation or warranty or covenant made by Purchaser in this Agreement to be true and correct as of the Stockholders contained in this Agreementdate made, (ii) any breach by Purchaser of any of its covenants or agreements contained herein and (iii) any breach by the Transaction Documents, Company of any of its covenants or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after agreements contained herein which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount are to be payable to the Indemnitees performed by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of Company after the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing Date.
Appears in 1 contract
General Indemnification. (a) Each Stockholder, agrees jointly You agree to indemnify and severally, with hold us harmless and to indemnify and hold harmless each other StockholderUnderwriter and each person, except with if any, who controls us or such other Underwriter within the meaning of the Exchange Act, against any and all losses, claims, damages, or liabilities, joint or several (or actions of any nature whatsoever in respect to representationsthereof), warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which we or any of them may become subject insofar as such Stockholder agrees losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based on: (i) your giving of unauthorized information or your making of unauthorized representations in breach of the provisions of this Master Agreement, (ii) your failure to comply with respect your agreements under this Master Agreement or your breach of any representations that you make or are deemed to himself onlyhave made in connection with the sale of any Securities, (iii) your failure to observe applicable SEC, MSRB or FINRA rules, or other regulatory provisions (including regulations and rulings promulgated by the Internal Revenue Service), (iv) the absence of authority on your part to participate in the offering as an Underwriter or to execute, to indemnifyconsummate the transactions contemplated in, defend and hold Parent and Acquisition Sub and their respective officersor to perform this Master Agreement or the Purchase Contract, directors(v) your failure to comply with the requirements for establishing issue price of the Securities, employeesas set forth in Section VI of this Master Agreement, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitationbut not limited to, reasonable attorneys' fees and expenses) your agreement to comply with the hold-the-offering-price rule, if applicable to the Securities, ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (ivi) the failure of any representation or warranty made by any Stockholder participant in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided a third-party distribution network that you have established to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to comply with the terms of the Escrow offering for the Securities set forth in the Initial Wire and the Pricing Wires, including any failure to comply with the requirements for establishing issue price of the Securities, as set forth in Section VI of this Master Agreement or (vii) your breach or violation of the law of any jurisdiction (including any applicable securities laws) that restricts, limits or prohibits your execution, consummation or performance. You agree to reimburse each such indemnified party or parties for any legal or other expenses whatsoever reasonably incurred (including fees and shall be borne pro rata by the Stockholders,disbursements of counsel) in connection with investigating, preparing or defending against any such loss, claim, damage, liability or action.
Appears in 1 contract
Samples: Master Agreement
General Indemnification. (a) Each StockholderSubject to the limitations set forth in this Section 8, agrees the Shareholders will jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend severally indemnify and hold Parent harmless Lucent and Acquisition Sub each Person, if any, who controls, may control or is controlled by Lucent within the meaning of the Securities Act and their respective officers, directors, employees, Affiliates agents and agents advisors (collectivelyeach 34 39 such indemnitee being referred to herein as an "Indemnified Person"), the "Indemnitees") harmless from an amount equal to (x) a fractionand against any and all losses, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all costs, damages, losses, liabilities, obligations, claims impositions, inspections, assessments, fines, deficiencies and expenses arising from claims, demands, actions, causes of any kindaction, interest or expenses (including, without limitation, reasonable attorneys' legal fees and expenses) (collectively, "LossDamages"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any inaccuracy in any representation or warranty made by the Company or any Stockholder Shareholder in this Agreement or in any exhibit or schedule to this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any Damages relating to Taxes of the Company that pertain to periods (or that portion of any period) up to and including the Closing Date other than any Taxes accrued or reserved for on the Current Balance Sheet, and (iii) any breach or alleged breach default by the Company or any Stockholders Shareholder of any of their the covenants or agreements contained herein given or thereinmade by any of them in this Agreement or any exhibit or schedule to this Agreement.
(b) Lucent and the Shareholders acknowledge that such Damages, in each caseif any, without giving effect would relate to any "materiality"unresolved contingencies existing at the Closing Date, "knowledge" or similar qualifications; provided, however, that (1) which if resolved at the Stockholders shall not Closing Date would have any obligation led to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, a reduction in the nature of, or caused by total consideration that Lucent would have agreed to pay in connection with the breach of any such surviving representation or warranty or covenant of transactions contemplated hereby.
(c) Notwithstanding anything to the Stockholders contrary contained in this Agreement, solely with respect to any of the Transaction Documents, claim by any Indemnified Person for indemnification under Section 8.2(a)(i) or 8.2(a)(ii) (other than any certificate delivered pursuant to this Agreement until Parent claim for any inaccuracy in Section 3.13 or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated last sentence of Section 3.2(a)), such Indemnified Person may not seek indemnification with respect to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) any claim for Damages until the aggregate amount of all Damages for which all Indemnified Persons are seeking indemnification under Section 8.2(a)(i) or 8.2(a)(ii) equals or exceeds $500,000 (the "Threshold"), whereupon such Indemnified Person shall be entitled to seek indemnification with respect to all such Damages that exceed the Threshold. All Damages for which indemnification may be payable sought pursuant to the Indemnitees by the Stockholders for Section 8.2(a) (other than claims of indemnification under this Section 8.2(afraud) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms then aggregate value of the Escrow Agreement and Fund on the Closing Date, or following the first anniversary of the Closing Date, the then aggregate value of the Escrow Fund at the time such claim for indemnification is satisfied.
(d) In determining the amount of any Damage for which any Indemnified Person may seek indemnification under Section 8.2(a)(i) or Section 8.2(a)(iii), any materiality standard shall be borne pro rata disregarded.
(e) The indemnification provisions of this Article 8 are the exclusive remedy for any Damages suffered by any Indemnified Person in connection with this Agreement, except for Damages arising from fraud or any inaccuracy in any representation or warranty of the Stockholders,Shareholders contained in Sections 3.1(b) and 3.1(c), the last sentence of Section 3.2(a), and Sections 3.32, 3.33 and 3.34. The liability of the Shareholders to all Indemnified Persons for all Damages for which indemnification is provided hereunder shall not exceed the Escrow Fund.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lucent Technologies Inc)
General Indemnification. (a) Each StockholderThe Shareholder Parties, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to shall indemnify, defend and hold harmless Parent and Acquisition Sub and their respective its directors, officers, directorsAffiliates, employees, Affiliates agents and agents representatives (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"“Parent Indemnified Parties”), except with respect to failures of representations from and warranties and breaches of covenants or agreements against all Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, any of them in connection with, with or arising out resulting from any of the following:
(i) the failure of any breach of, or inaccuracy in, any representation or warranty made by any Stockholder Shareholder Party in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or ;
(ii) any breach or alleged breach of any covenant made by any Stockholders Shareholder Party in this Agreement;
(iii) any Closing Indebtedness, to the extent not included in the adjustments provided for in Section 1.7;
(iv) any Transaction Expense, to the extent not included in the adjustments provided for in Section 1.7;
(v) the determination of the Allocation Portions of the Merger Consideration payable to Shareholder, and the payment of the Merger Consideration in accordance with such Allocable Portions;
(vi) any matter identified on Schedule 3.13; or
(vii) the enforcement by any Parent Indemnified Party of its indemnification rights under this Agreement.
(b) Parent shall indemnify, defend and hold harmless the Shareholder Parties and their respective directors, officers, Affiliates, employees, agents and representatives (collectively, the “Shareholder Indemnified Parties”) from and against all Losses that are incurred or suffered by any of them in connection with or resulting from any of the following:
(i) any breach of, or inaccuracy in, any representation or warranty made by Parent in this Agreement;
(ii) any breach of any covenant made by Parent in this Agreement; or
(iii) the enforcement by the Shareholder Indemnified Parties of their covenants or agreements contained herein or thereinindemnification rights under this Agreement.
(c) Subject to the provisions of Section 7.2(d), in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1i) the Stockholders Shareholder Parties shall not have any no obligation to indemnify Parent Indemnified Parties for any Losses pursuant to claims for breaches of, or Acquisition Sub from inaccuracies in, representations and against warranties (other than Fundamental Representations) under Section 7.2(a)(i) unless and until the total amount of Losses incurred by Parent Indemnified Parties with respect to such breaches of, or inaccuracies in, representations and warranties exceeds $100,000 (the “Threshold”), in which case the Shareholder Parties shall be liable for all such Losses, including Losses below the Threshold; (ii) Parent shall have no obligation to indemnify Shareholder Indemnified Parties for any Loss resulting fromLosses pursuant to claims for breaches of, or inaccuracies in, representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i) unless and until the total amount of Losses incurred by Shareholder Indemnified Parties with respect to such breaches of, or inaccuracies in, representations and warranties exceeds the Threshold, in which case Parent shall be liable for all such Losses, including Losses below the Threshold. Subject to the provisions of Section 7.2(d), the maximum aggregate obligation of (i) the Shareholder Parties for Losses pursuant to claims for breaches of, or inaccuracies in, representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i), and (ii) Parent for Losses pursuant to claims for breaches of, or inaccuracies in, representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed $1,250,000 (the “Cap”).
(d) In no event shall the Threshold or the Cap, or the limitations set forth in Section 7.2(c), apply to Losses suffered or incurred by any Indemnified Party as a result of, or arising out of, relating to(i) the matters set forth in Sections 7.2(a)(ii) through 7.2(a)(vii), in the nature Sections 7.2(b)(ii) or 7.2(b)(iii), or Section 6.1; (ii) a breach of, or caused inaccuracy in, any Fundamental Representation; or (iii) any fraud or intentional misrepresentation by a Party
(e) The representations and warranties in this Agreement and the Ancillary Agreements shall not be affected or diminished by, and no right of indemnification hereunder shall be limited by reason of any investigation or audit conducted before or after the Closing or the knowledge of any Party of any breach of a representation, warranty, covenant or agreement by the breach other Party at any time, or the decision of any such surviving representation or warranty or covenant of Party to complete the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Closing.
Appears in 1 contract
Samples: Merger Agreement (Transcat Inc)
General Indemnification. (a) Each StockholderUnigene (for purposes of this Section 12.1(a), agrees jointly and severally"Indemnitor") shall, with each other Stockholderat its own expense, except with respect to representationsdefend, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and forever hold Parent harmless USL and Acquisition Sub and their its respective officers, directors, employeesagents and employees (for purposes of this Section 12.1(a), Affiliates each an "Indemnitee"), from and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares against any and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligationsclaims, claims of any kindcosts, interest or damages and expenses (including, without limitation, fines, forfeitures, reasonable attorneys' fees fees, disbursements and expensesadministrative or court costs) (individually "Loss," and collectively "), except with respect to failures Losses") that arise from any claim of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or Third Party arising out of (i) the failure a breach of any representation representation, warranty or warranty made by any Stockholder agreement of Unigene in this Agreement, in any of Unigene's willful misconduct or negligence, or an Infringement Action that alleges that the Transaction Documents API or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of its production violates the date Third Party's intellectual property rights. Notwithstanding the foregoing provisions of this Agreement and as of the Closing Date (unless made as of another dateSection 12.1(a), in no event will an Indemnitee be entitled to indemnification under this Section 12.1(a) with respect to any and all Losses to the extent that they arise from an Indemnitee's (including any Affiliates of an Indemnitee) negligence or willful misconduct. The indemnification provisions of this Section 12.1(a) shall not apply to any matters covered by the indemnification and reimbursement provisions set forth in Sections 9.1, 9.2 or 10.3 hereof, except to the extent that a Loss is due to a breach by Unigene of any representations and warranties set forth in Section 13.1(c)(v) or (iivii) any breach or alleged breach by any Stockholders in which event USL shall be entitled to indemnification to the full extent provided in this Section 12.1(a).
(b) USL (for purposes of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality"this Section 12.1(b), "knowledge" or similar qualifications; providedIndemnitor") shall, howeverat its own expense, that defend, indemnify, and forever hold harmless Unigene and its respective officers, directors, agents and employees (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub for purposes of this Section 12.1(b), each an "Indemnitee"), from and against any Loss resulting from, and all Losses that arise from any claim of a Third Party arising out of, relating to, in the nature of, or caused by the of a breach of any such surviving representation or representation, warranty or covenant agreement of the Stockholders contained USL in this AgreementAgreement or USL's willful misconduct or negligence. Notwithstanding the foregoing provisions of this Section 12.1(b), any of the Transaction Documents, or any certificate delivered pursuant in no event will an Indemnitee be entitled to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a12.1(b) shall not exceed an amount equal with respect to 25 percent of the Acquisition Price; any and (3) all amounts payable Losses to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(aextent that they arise from an Indemnitee's (including any Affiliates of an Indemnitee) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,negligence or willful misconduct.
Appears in 1 contract
Samples: License and Development Agreement (Unigene Laboratories Inc)
General Indemnification. (a) Each Stockholder, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties covenants and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend defend, protect and hold Parent harmless AppNet, Newco and Acquisition Sub the Surviving Corporation and their respective officers, directors, employees, Affiliates stockholders, assigns, successors and agents affiliates (individually an "AppNet Indemnified Party" and collectively, the "IndemniteesAppNet Indemnified Parties") harmless from an amount equal to from, against and in respect of:
(xi) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damagesliabilities, losses, liabilitiesclaims, obligationsdamages, claims punitive damages, causes of any kindaction, lawsuits, administrative proceedings (including informal proceedings), investigations, audits, demands, assessments, adjustments, judgments, settlement payments, deficiencies, penalties, fines, interest or (including interest from the date of such damages) and costs and expenses (including, including without limitation, limitation reasonable attorneys' fees and expensesdisbursements of every kind, nature and description) (collectively, "LossDamages") suffered, sustained, incurred or paid by the AppNet Indemnified Parties in connection with, resulting from or arising out of, directly or indirectly:
(1) any breach of any representation or warranty of the Stockholders or the Company set forth in this Agreement or any Schedule or certificate, delivered by or on behalf of any Stockholder or the Company in connection herewith (PROVIDED, HOWEVER, that notwithstanding any language to the contrary, the liability of the Stockholders with regard to Section 3.4, the Accredited Investors with regard to Section 3.30 and the Unaccredited Investors with regard to Section 3.31 shall be several and as to their own representations); or
(2) any nonfulfillment of any covenant or agreement by the Stockholders or, prior to the Effective Time, the Company, under this Agreement; or
(3) the business, operations or assets of the Company prior to the Closing Date or the actions or omissions of the Company's directors, officers, shareholders, employees or agents prior to the Closing Date, other than Damages arising from matters expressly disclosed in the Company Financial Statements, this Agreement or, subject to Section 8.1(a)(i)(4), except the Schedules to this Agreement; or
(4) all matters disclosed on Schedules 3.21 (Environmental and Safety Matters), 3.23 (Taxes), 3.24 (Litigation), 3.25 (Compliance with respect to failures Laws) and any outstanding liabilities or obligations of representations the Companies as of the Closing Date under EDC's tax equalization policy whether or not disclosed on Schedule 3.11(a)(iv) (Liabilities and warranties and breaches Obligations, etc.) or Schedule 3.23; or
(5) any loss of covenants or agreements that are made tax-free reorganization status for the transactions contemplated by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paidthis Agreement caused by, directly or indirectly, as the actions or omissions of the Stockholders; or
(6) any information or representation regarding the Companies provided in the Private Placement Materials; and
(ii) any and all Damages incident to any of the foregoing or to the enforcement of this Section 8.1(a).
(b) AppNet covenants and agrees to indemnify, defend, protect and hold harmless the Stockholders and their assigns (individually, an "EDC Indemnified Party" and collectively, "EDC Indemnified Parties") from, against and in respect of all Damages suffered, sustained, incurred or paid by an EDC Indemnified Party, in any action or proceeding between the EDC Indemnified Party and AppNet, or the EDC Indemnified Party and a result ofthird party, in connection with, resulting from or arising out of of, directly or indirectly:
(i) the failure any breach of any representation or warranty made by any Stockholder of AppNet set forth in this Agreement, in any of the Transaction Documents Agreement or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct delivered by AppNet in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or connection herewith;
(ii) any breach or alleged breach by any Stockholders nonfulfillment of any of their covenants covenant or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused agreement by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in AppNet under this Agreement, ; and
(iii) any and all Damages incident to any of the Transaction Documents, foregoing or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims enforcement of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,8.1(b).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Commerce One Inc)
General Indemnification. (a) Each StockholderFor a period of one year after the Closing, agrees jointly and severallyif Parent, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective Newco and/or its officers, directors, employees, Affiliates and and/or agents (collectively, each a “Parent Indemnitee” and together the "“Parent Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all suffer any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) ("“Loss")”) as a result of, except with respect in connection with, or arising out of (i) the breach of any representation or warranty made by the Company contained (A) in Article III of this Agreement or (B) in any certificate delivered to failures Parent and Newco pursuant to Section 6.2, (ii) any breach by the Company of representations and warranties and breaches any of its covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date, (iii) a breach of any covenant contained in Section 5.10 and (iv) the exercise by any holder of Preferred Stock or Common Stock of their appraisal rights, if any, under Section 262 of the DGCL (it being understood that are made by any Loss in connection with this Section 8.2(a)(iv) shall be net of the Preferred Stock Consideration or agreed the Common Stock Consideration that such holder would have been entitled to by receive as a result of the Merger hereunder), then, subject to the other provisions of this Article VIII, such Stockholder individuallyParent Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the Escrow Account.
(b) For a period of one year after the Closing, with respect to which such Stockholder each of Parent and the Surviving Corporation, jointly and severally, agrees to indemnify indemnify, defend and hold harmless each of the Indemnitees Company Securityholders as of the date of this Agreement and their respective officers, directors, employees, Affiliates and/or agents (each a “Stockholder Indemnitee” and together the “Stockholder Indemnitees”) harmless from all Losses, any Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure breach of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to Newco contained (A) in Article IV of this Agreement to be true and correct in all respects as of the date of this Agreement and as of or (B) in any certificate delivered to the Closing Date (unless made as of another date)Company pursuant to Section 6.3, or (ii) any breach by Parent or alleged breach by any Stockholders Newco of any of their its covenants or agreements contained herein, and (iii) any breach by the Surviving Corporation (including by way of being the successor of Newco and the Company) of any of its covenants or agreements contained herein or thereinwhich are to be performed by the Surviving Corporation after the Closing Date. The foregoing notwithstanding, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) no event shall the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses Surviving Corporation be liable hereunder for an amount in excess of $200,000 in the aggregate 12,000,000.
(after which the Stockholders shall be obligated c) The obligations to indemnify Parent and Acquisition Sub from and against Losses only hold harmless pursuant to the extent they exceed $200,000); clause (2i) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) and pursuant to clause (i) of Section 8.2(b) shall not exceed an amount equal to 25 percent survive the consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders period set forth in Section 8.1, except for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims shall survive until final resolution thereof.
(d) As used herein, the term “Indemnification Claim” means a claim for indemnification by Parent or any other Parent Indemnitee or any Stockholder Indemnitee, as the case may be, for any Loss under this Section 8.2(a) shall be paid Article VIII (such Person making an Indemnification Claim, an “Indemnitee”). An Indemnitee may give notice of an Indemnification Claim under this Agreement, whether for its own Loss or for Losses incurred by delivery any other Parent Indemnitee or Stockholder Indemnitee, as applicable, pursuant to written notice of shares such Indemnification Claim executed by an officer of Parent Common Stock or the Stockholder Representative, as applicable (a “Notice of Claim”), and delivered to the Stockholder Representative or Parent, as applicable (such receiving party, the “Indemnitor”), promptly after such Indemnitee becomes aware of the existence of any potential claim by such Indemnitee for indemnification under this Article VIII, but in any event before the Escrow Agent pursuant to the terms Release Date, arising out of the Escrow Agreement and shall be borne pro rata by the Stockholders,or resulting from:
Appears in 1 contract
General Indemnification. (a) Each StockholderFrom and after the Closing, agrees jointly subject to the limitations and severallyother provisions set forth in this Article 9, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to Seller shall indemnify, defend and hold Parent Buyer, its Affiliates (including the Group Companies) and Acquisition Sub and each of their respective officers, directors, employees, Affiliates stockholders, agents, attorneys accountants, representatives, successors, and agents permitted assigns (collectivelyeach, a “Buyer Indemnitee” and together, the "“Buyer Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all against any damages, losses, liabilitiesLiabilities, obligations, Taxes, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) ("“Loss"”), except with respect in each case actually incurred, suffered by or asserted against a Buyer Indemnitee, to failures the extent directly or indirectly arising out of or resulting from:
(i) any misrepresentation in or breach or inaccuracy of (A) such Seller’s Individual Seller Fundamental Representations; (B) Company Fundamental Representations, (C) the representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which Seller (other than such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (iSeller’s Individual Seller Fundamental Representations) the failure of any representation or warranty made by any Stockholder set forth in this Agreement, in any or (D) the representations and warranties of the Transaction Documents or Company (other than the Company Fundamental Representations) set forth in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or any Ancillary Document;
(ii) any breach or alleged breach by any Stockholders nonfulfillment of any covenant, agreement or other obligation of such Seller set forth in this Agreement or any Ancillary Document;
(iii) any breach or nonfulfillment of any covenant, agreement or other obligation of the Company set forth in this Agreement or any Ancillary Document; or
(iv) any Pre-Closing Taxes.
(b) The obligation to provide indemnification under Section 9.2(a) other than with respect to Section 9.2(a)(i)(A), Section 9.2(a)(i)(C) and Section 9.2(a)(ii), shall be pro rata in accordance with each Seller’s Percentage Allocation (such that the total amount of such indemnity is equal to 100% of the applicable Losses but, other than with respect to Fraud (but subject to the last sentence of Section 9.5 in respect of AIG), recovery by Buyer shall not in any event exceed the Final Purchase Price). The obligation to provide indemnification pursuant to Section 9.2(a)(i)(A), Section 9.2(a)(i)(C) and Section 9.2(a)(ii) shall be borne solely by the applicable Seller to whom such representation or obligation, as applicable, relates. Each Seller’s obligation to provide indemnification pursuant to this Section 9.2 shall be several and not joint.
(c) From and after the Closing, subject to the limitations and other provisions set forth in this Article 9, Buyer shall indemnify, defend and hold the Sellers, their Affiliates and each of their covenants respective officers, directors, employees, stockholders, agents, attorneys accountants, representatives, successors, and permitted assigns (each, a “Seller Indemnitee” and together, the “Seller Indemnitees”) harmless from any Loss incurred, suffered by or agreements contained herein asserted against a Seller Indemnitee, to the extent directly or therein, indirectly arising out of or resulting from:
(i) any misrepresentation in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that breach or inaccuracy of (1A) Buyer Fundamental Representations or (B) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from other representations and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach warranties of any such surviving representation or warranty or covenant of the Stockholders contained Buyer set forth in this Agreement; or
(ii) any breach or nonfulfillment of any covenant, agreement or other obligation of Buyer set forth in this Agreement.
(d) Nothing in this Article 9 shall affect or limit the ability of Buyer to recover under the R&W Insurance for any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,matters covered thereunder.
Appears in 1 contract
Samples: Unit Purchase Agreement (White Mountains Insurance Group LTD)
General Indemnification. (a) Each StockholderSubject to Section 6.2(c) and Section 6.2(d), agrees jointly after the Closing, the Parent Indemnified Parties shall be entitled to make a claim against the Indemnity Holdback Amount for, and, subject to the provisions of this Article VI may recover from the Indemnity Holdback Amount, any and severallyall Losses that any such Parent Indemnified Party may suffer, with sustain or become subject to as a result of:
(i) any breach of any Express Representation (in each case ignoring, for purposes of determining the inaccuracy or breach thereof and the amount of Losses relating thereto, any qualification as to materiality, Material Adverse Effect, expectation to result in a material liability or words of similar import contained in any such representation or warranty (other Stockholder, except than with respect to representations(x) the term “Material Contract” or (y) the representations contained in clause (a) of Section 3.5 (Financial Statements) and clause (a) of Section 3.6 (Absence of Certain Changes)), warranties and
(ii) any breach of any covenant by the Stockholders’ Representative under this Agreement requiring performance after the Closing.
(b) Parent shall indemnify the Company Indemnified Parties and covenants save and hold each of them harmless from and against and pay on behalf of or reimburse such Company Indemnified Party for any and all Losses that are made any Company Indemnified Party may suffer, sustain or become subject to as a result of (i) any breach or inaccuracy of any representation or warranty set forth in Article IV and (ii) any breach of any covenant by Parent or agreed Merger Sub.
(c) Parent Indemnified Parties shall not be entitled to by such Stockholder individually, recover for any Loss pursuant to Section 6.2(a)(i) (other than with respect to Fundamental Representations) (i) until the aggregate amount of all Losses that Parent Indemnified Parties would, but for this clause (i), be entitled to indemnification in respect thereof exceeds $1,242,500 in the aggregate (the “Deductible”), in which case, subject to clause (ii), Parent Indemnified Parties shall be entitled to recover for all such Stockholder agrees Losses in excess of the Deductible, or (ii) to the extent the aggregate amount of all Losses previously indemnified pursuant to Section 6.2(a)(i) (other than with respect to himself onlyFundamental Representations) exceeds $1,242,500 (the “General Cap”). Notwithstanding anything to the contrary contained herein, (A) the Deductible and the General Cap shall not apply with respect to any Loss arising from (and such Loss shall not be counted toward the General Cap) actual (but not constructive) common law fraud in respect of a misrepresentation by the Company of an Express Representation; (B) no Stockholder or Warrantholder shall be liable for any Losses in excess of the portion of the Merger Consideration paid to such Stockholder or Warrantholder, as applicable, pursuant to this Agreement, subject to the limitations set forth in this Section 6.2(c); (C) Losses in respect of which a Parent Indemnified Party would otherwise be entitled to indemnification shall be offset by (x) any amounts or benefits received (whether in the form of cash, credit or some other beneficial arrangement, excluding tax benefits) from any third party in respect of such Loss, and (y) the aggregate amount of any insurance proceeds received (whether in the form of cash or credit) in respect of such Loss; and (D) the indemnity obligations hereunder (1) shall not apply to any environmental matter or condition that is discovered by any sampling, investigation or reporting by or on behalf of any Parent Indemnified Party that is not either (x) required by Environmental Law, (y) necessary to respond to, or defend against a Third-Party Claim with respect to any actual or alleged liability arising from, based on or in connection with any Release of a Hazardous Material under or from any property currently or formerly owned, leased or operated by the Company or any Company Subsidiary occurring on or prior to the Closing Date regardless of when such Release is discovered, migration of any such Release of Hazardous Material, or exposure to Hazardous Material from such a Release, or (z) necessary for Parent Indemnified Party to conduct bona fide construction or maintenance projects consistent with commercial or industrial use of the Property or the expansion thereof and (2) shall not apply to any Losses with respect to Remediation by Parent Indemnified Party, except to the extent such Remediation is conducted in a cost effective manner, and is required by Environmental Law to attain compliance with minimum applicable remedial standards for the continued commercial or industrial use of the relevant property or facility, employing where available cost-effective, risk-based remedial standards. Parent Indemnified Parties shall not be entitled to recover any Loss consisting of or relating to Taxes with respect to any taxable period, or the portion of any Straddle Period, beginning after the Closing Date as a result of any breach of the representations and warranties set forth in Section 3.12, other than the representations and warranties set forth in Section 3.12(g).
(d) In the event any Losses incurred by a Parent Indemnified Party are covered by insurance or any indemnity, contribution or other similar right against a third party, such Parent Indemnified Party shall use its Commercially Reasonable Efforts to seek recovery under such insurance or indemnity, contribution or similar right. For purposes of clarity, Parent shall be responsible for the retention amount under the RWI Policy and, to indemnifythe extent a matter is covered under the RWI Policy but for the retention amount thereunder, defend no claims shall be made under Section 6.2(a)(i) by Parent with respect to such matter until the Deductible has been satisfied. Parent covenants to maintain in full force and hold effect the RWI Policy through the policy period thereof and all product liability insurance of the Company and its Subsidiaries as exists as of the Closing Date.
(e) Each Parent Indemnified Party shall use Commercially Reasonable Efforts to mitigate any Loss upon becoming aware of any event, state of facts, circumstances or developments which would reasonably be expected to, or does, give rise thereto. For purposes of clarity, and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectivelynotwithstanding anything in this Agreement to the contrary, the "Indemnitees"Parent Indemnified Parties shall be deemed not to have suffered any Loss arising from any liability to the extent such liability was included in the determination of Final Working Capital, Final Indebtedness or Final Transaction Expenses, as it is the intent of the Parties that the procedures set forth in Section 2.5 shall provide the sole and exclusive remedy for such claims
(f) harmless Any Person making a claim for indemnification under this Section 6.2 (an “Indemnitee”) that arises from a claim by a third party (a “Third-Party Claim”) shall notify the indemnifying party (an “Indemnitor”) of the Third-Party Claim in writing, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof (a “Claim Notice”); provided that the failure to give a timely Claim Notice shall affect the rights of an Indemnitee hereunder only to the extent that such failure has a prejudicial effect on the defenses or other rights available to the Indemnitor with respect to such Third-Party Claim. The Indemnitor shall have 30 days after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnitee that it desires to defend the Indemnitee against such Third-Party Claim.
(g) In the event that the Indemnitor notifies the Indemnitee within the Notice Period (the “Defense Notice”) that it desires to defend the Indemnitee against a Third-Party Claim, the Indemnitor shall have the right to defend the Indemnitee by appropriate Proceedings and shall have the sole power to direct and control such defense at its expense commencing upon delivery of the Defense Notice. The Indemnitee may participate in any such defense at its expense. The Indemnitor shall not, without the prior written consent of the Indemnitee (such consent not to be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim on a basis that would result in (i) a finding or admission of a violation of Law by the Indemnitee or any of its Affiliates or (ii) any monetary liability of the Indemnitee that is not concurrently paid or reimbursed by the Indemnitor.
(h) If the Indemnitor elects not to defend the Indemnitee against a Third-Party Claim, the Indemnitee shall have the right but not the obligation to assume its own defense; it being understood that the Indemnitee’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim in such circumstance. If the Indemnitor elects not to defend the Indemnitee against a Third-Party Claim, the Indemnitee may not settle the Third-Party Claim without the prior written consent of the Indemnitor, which shall not be unreasonably withheld or delayed.
(i) The Indemnitee and the Indemnitor shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.
(j) If an Indemnitee wishes to make a claim for indemnification hereunder for a Loss that does not result from a Third-Party Claim (a “Direct Claim”), the Indemnitee shall notify the Indemnitor in writing of such Direct Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Direct Claim).
(k) From and after the Closing, except in the event of actual (but not constructive) common law fraud in respect of a misrepresentation by the Company of an Express Representation, the sole and exclusive remedies for any and all claims arising under or for breach of this Agreement shall be the remedies provided in Section 2.5, Section 8.10, and the rights of indemnification set forth in this Section 6.2, and no Person will have any other entitlement, remedy or recourse for such claims against any Contracting Party or any other Person (including with respect to any such claims arising under CERCLA, or any other environmental, health or safety matters), it being agreed that all such other remedies, entitlements and recourse for such claims are expressly waived and released by the Parties to the fullest extent permitted by Law. The provisions of this Section 6.2(k) and the limited remedies provided in Section 2.5, Section 6.2, and Section 8.10 were specifically bargained for by the Parties and were taken into account by them in arriving at the Enterprise Value and the terms and conditions of this Agreement. No Party shall be entitled to a rescission of this Agreement (or any related agreements) or any further indemnification rights or claims of any nature whatsoever, all of which are hereby expressly waived by the Parties to the fullest extent permitted under applicable Law. Notwithstanding the foregoing, nothing in this Section 6.2(k) is intended to or shall relieve or release any Person from its obligations under any other contract or other document to which such Person is expressly made a party that is delivered pursuant to this Agreement.
(l) Any amounts owing under Section 6.2(a) shall be satisfied solely from the then remaining balance of the Indemnity Holdback Amount. Any amounts owing under Section 6.2(b) shall be paid by Parent to the applicable Company Indemnified Party by wire transfer of immediately available funds within three calendar days after the final determination thereof. All indemnification payments under this Section 6.2 shall be deemed adjustments to the Final Purchase Price.
(m) On the first Business Day following the first anniversary of the Closing Date, the Stockholders’ Representative and Parent shall deliver a joint written instruction to the Escrow Agent to release to the Stockholders and the Warrantholders an aggregate amount equal to (x) a fractionthe then-remaining balance of the Indemnity Holdback Amount, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by minus (y) the aggregate amount of all damages, losses, liabilities, obligations, Losses specified in any then-unresolved good faith claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees for indemnification made in accordance with this Agreement prior to such date. Such aggregate amount shall be allocated among the Stockholders and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by the Warrantholders as if such Stockholder individually, with respect to which such Stockholder agrees to indemnify amount had been included in the Indemnitees from all Losses, suffered or paid, directly or indirectlyClosing Merger Consideration and, as a result allocated, such amounts shall be paid to the accounts of the Stockholders and the Warrantholders as set forth in the Funds Flow.
(n) From and after the Closing, Olympus Growth Fund IV, L.P. shall control the defense of, in connection withand indemnify Parent Indemnified Parties for any Losses incurred by Parent Indemnified Parties resulting from, or arising out of (i) the failure of any representation or warranty claim made by any Stockholder or Warrantholder in this Agreement, in any respect of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as payment of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Control Premium hereunder.
Appears in 1 contract
General Indemnification. (a) Each StockholderSeller, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties covenants and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend defend, protect and hold Parent harmless the Indemnified Parties from, against and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount in respect of all damagesDamages suffered, lossessustained, liabilitiesincurred or paid by any Indemnified Party, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in each case in connection with, resulting from or arising out of of, directly or indirectly (whether or not involving a third party claim): (i) the failure inaccuracy or breach of any representation or warranty made by the Company or any Stockholder Seller set forth in this Agreement or in any other agreement or any certificate delivered or provided in connection with or related to the consummation of the transactions contemplated by this Agreement; (ii) the nonfulfillment of any covenant or agreement on the part of the Company or any Seller set forth in this Agreement or in any agreement or certificate executed and delivered by the Company or any Seller pursuant to this Agreement or in the transactions contemplated hereby; (iii) any Liability with respect to any matter or matters described on Appendix B hereof; (iv) the Benefit Plans and any and all benefits accrued under the Benefit Plans as of the Closing Date and any and all other Liabilities arising out of, or in connection with the form or operation of the Benefit Plans on or prior to the Closing Date; (v) any Liability which arises out of, relates to or is associated with any claim by any Indemnified D&O against the Company for indemnification for any act or omission by any of them on or prior to the Closing Date; (vi) any and all Liabilities resulting from any litigation, suit, proceeding, action, claim, demand or investigation pending or threatened against the Company which arises out of the operations of the Company on or prior to the Closing Date including, without limitation, any such matter listed on Schedule 3.13; (vii) any and all Liabilities resulting from, arising out of or in connection with the Letter Agreement; and (viii) any and all Liabilities for Taxes (x) in connection with or arising out of the Company’s activities or business on or prior to the Closing Date (determined, with respect to Tax periods that begin before and end after the Closing Date, in any accordance with the allocation provisions of Section 6.6(b)) in excess of the Transaction Documents amount of such Taxes reflected as a current liability in the computation of Closing Working Capital (or not taken into account as a Non-Ordinary Course Liability), or (y) owing by any Person other than the Company for which the Company may be liable, including, without limitation (A) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), (B) as a transferee or successor, or (C) by contract.
(b) Buyer covenants and agrees to indemnify, defend, protect and hold harmless the Seller Indemnified Parties from, against and in respect of all Damages suffered, sustained, incurred or paid by any Seller Indemnified Party, in each case in connection with, resulting from or arising out of, directly or indirectly: (i) the inaccuracy or breach of any representation or warranty made by Buyer or Merger Sub set forth in this Agreement or in any certificate delivered or other instrument provided in connection with or document provided related to Parent the consummation of the transactions contemplated by this Agreement; and (ii) the nonfulfillment of any covenant or Acquisition agreement on the part of Buyer set forth in this Agreement or in any certificate executed and delivered by Buyer or Merger Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,transaction contemplated hereby.
Appears in 1 contract
General Indemnification. (a) Each StockholderExpense Indemnification. Whether or not (i) any of the Limestone Certificates are sold or the Closing occurs or (ii) such Expense Indemnified Person shall be indemnified as to such Indemnified Expense by any other Person, agrees jointly and severallyEl Paso agrees, with each other Stockholder, except with respect subject to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself onlySection 7.11 hereof, to indemnify, protect, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from each Expense Indemnified Person on an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, After-Tax Basis against Indemnified Expenses directly or indirectly, as a result of, in connection with, indirectly resulting from or arising out of or alleged by a Person other than such Expense Indemnified Person to result from or arise out of:
(i) this Agreement, the "Transaction Documents" as defined in the Phase II Participation Agreement (the "Phase II Transaction Documents") or any other Transaction Document or any of the transactions contemplated hereby and thereby whether or not in compliance with the terms of the Transaction Documents;
(ii) (A) any act or omission (whether negligent or otherwise) by El Paso or any Affiliate of El Paso, (B) any breach of, failure to perform or observe, or other non-compliance with, any covenant, condition or agreement to be performed by, or other obligation of, El Paso or any Affiliate of El Paso under any of the Transaction Documents, or (C) the breach of any representation or warranty (without giving effect to any qualification with respect to the materiality thereof) made by any Stockholder in this Agreement, El Paso in any of the Transaction Documents or in any document or certificate delivered in connection therewith;
(iii) any violation of Applicable Law by El Paso or other instrument any of its Related Persons in respect of the transactions contemplated by the Transaction Documents or document the Phase II Transaction Documents;
(iv) any sale, transfer or holding of Limestone Certificates being deemed to result in a non-exempt "prohibited transaction" under ERISA and/or Section 4975 of the Code due to any act or omission by El Paso or its Affiliates; provided that the Expense Indemnification set forth in this clause (iv) shall not apply to Parent any Certificateholder to the extent that such "prohibited transaction" results from a breach by such Certificateholder of its representations, warranties or Acquisition Sub covenants contained in the Investment Certificate delivered by it pursuant to this Agreement and the Limestone Trust Agreement;
(v) any Chaparral Extraordinary Liabilities except to the extent attributable to any Replacement Period; provided that the Expense Indemnification provided for in this Section 6.1(a)(v) shall continue to apply during any Replacement Period for any Chaparral Extraordinary Liabilities to the extent attributable to events or circumstances that existed prior to the Replacement Period and with respect to which a Successor Manager has (x) pursued or continued the same course of action as the Management Company in accordance with standard utility or other applicable industry practices (if the Management Company knew of and had taken a course of action in respect of such events or circumstances) or (y) acted in accordance with standard utility or other applicable industry practices (if the Management Company did not know of such events or circumstances or had taken no action as a result thereof);
(vi) any agreement, activity or action or failure to take action or any violation of Applicable Law by or of either of Chaparral and Mesquite, except to the extent attributable to any such agreement, action, failure to take action or violation made or taken or omitted to be true and correct in all respects as made or taken during any Replacement Period;
(vii) Documentary Taxes;
(viii) [reserved];
(ix) the acquisition or ownership by Chaparral, Mesquite or any Subsidiary of Mesquite of the date of this Agreement and as New Assets, except for any New Assets acquired during any Replacement Period; and
(x) any of the Closing Date Certificateholders or Limestone becoming (unless made A) subject to regulation as a "public utility" as such term is defined in Section 201 of another date)the FPA, or (iiB) subject to the requirements of Section 203 of the FPA, in each case solely by virtue of any breach Certificateholder's acquiring and holding the Limestone Certificates and exercising, or alleged breach the Class A Member exercising, the rights available to such Certificateholder under the Limestone Trust Agreement or to such Class A Member under the Chaparral LLC Agreement in the manner contemplated by the Limestone Trust Agreement or the Chaparral LLC Agreement; provided that this clause (x) shall not apply to any Stockholders Indemnified Expenses to the extent such Indemnified Expenses result from or arise out of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that the following actions by the Class A Member: (1) such Class A Member chooses not to file, or cause to be filed by the Stockholders shall not have appropriate entity, an application pursuant to Section 203 of the FPA in the circumstances described in Section 6.1 of the Chaparral LLC Agreement and Section 5.2 of the Management Agreement, (2) such Class A Member causes the Disposition of any obligation asset of Chaparral or Mesquite pursuant to indemnify Parent an Asset Disposition or Acquisition Sub from pursuant to Section 11.3 of the Chaparral LLC Agreement without the filing by the appropriate entity of an application pursuant to Section 203 of the FPA with respect to such Disposition and against the receipt of any Loss resulting fromrequisite order pursuant thereto, arising out ofor (3) such Class A Member acts, relating toor causes Chaparral or Mesquite (or any other holder of FERC jurisdictional assets) to act, in the nature of, or caused by the breach material contravention of any such surviving representation filing referred to in subclause (1) or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,above or any order received in respect thereof.
Appears in 1 contract
General Indemnification. (a) Each StockholderFrom and after the Closing, each Non-Dissenting Stockholder covenants and agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend defend, protect and hold harmless the Parent Indemnified Parties from, against and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator in respect of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims such Non-Dissenting Stockholder’s Pro Rata Portion of any kindDamages suffered, interest sustained, incurred or expenses (includingpaid by any Parent Indemnified Party, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in each case in connection with, resulting from or arising out of of, directly or indirectly (whether or not involving a third party claim): (i) the failure breach of any representation or warranty made by any Stockholder the Company in this Agreement, in any of the Transaction Documents Agreement or in any certificate delivered or other instrument provided in connection with the consummation of the transactions contemplated by this Agreement; (ii) the breach of any covenant or document provided to Parent or Acquisition Sub pursuant to agreement on the part of the Company set forth in this Agreement to be true and correct or in all respects as any certificate delivered or provided in connection with the consummation of the date of transactions contemplated by this Agreement Agreement; (iii) any Indebtedness, Transaction Expenses or failure to pay any Adjustment Excess; (iv) the Company Plans and any and all benefits accrued under the Company Plans as of the Closing Date and any and all other Liabilities arising out of, or in connection with the form, operation or termination of the Company Plans on or prior to the Closing Date or any claim relating to any Company Option or the cancellation or termination thereof; (unless made v) any Tax or penalty incurred under Code Sections 4980D or 4980H; (vi) any and all Liabilities for (A) all Taxes of the Company and its Subsidiaries incurred in connection with or arising out of the activities or business of the Company or any of its Subsidiaries on or before the Closing Date (determined, with respect to taxable periods that include but do not end on the Closing Date, in accordance with the allocation provisions of Section 6.6(b)) in excess of the amount of such Taxes reflected as a liability in the computation of another dateClosing Net Working Capital or taken into account as Transaction Expenses in determining either the Closing Adjustment or the Post-Closing Adjustment, (B) all Taxes required to be paid by the Company or any of its Subsidiaries by reason of the Company or any of its Subsidiaries (or a predecessor of such entities) having been a member of an affiliated, consolidated, combined, or unitary group at any time on or before the Closing Date, including pursuant to Treasury Regulations Section 1.1502-6 or any analogous or similar state, local, or foreign law, rule, or regulation and (C) all Taxes of any Person (other than the Company and its Subsidiaries) required to be paid by the Company or any of its Subsidiaries by reason of Contract, assumption, transferee liability, or operation of Law, if the liability of the Company or any of its Subsidiaries for such Taxes is attributable to an event or transaction occurring on or before the Closing Date; (vii) with respect to each Dissenting Share, any payments by Parent in respect of demands for appraisal of such Dissenting Shares; (viii) any claim brought by a current or former stockholder of the Company, or any other Person, based upon (A) ownership or rights to ownership of any shares of capital stock or other securities of the Company, (B) any rights of a stockholder (other than the right to receive a portion of the Merger Consideration pursuant to Section 1.6 or with respect to Dissenting Shares), including any option, preemptive rights or rights to notice or to vote, (C) any rights under the Certificate of Incorporation or Bylaws of the Company, (D) any claim that his, her or its shares were wrongfully repurchased by the Company or issued out of compliance with applicable securities Laws, or (iiE) any claim relating to any Company Option or the exercise thereof; (ix) any alleged improper allocation of the Merger Consideration among the Stockholders; (x) any inaccuracy in any information or amounts or breach or alleged breach by any Stockholders of any of their covenants representation or agreements contained herein or therein, warranty set forth in each case, without giving effect to the Merger Consideration Spreadsheet; (xi) any "materiality", "knowledge" or similar qualificationsmatter set forth in Appendix D; provided, however, that (xii) any Fraud in connection with (1) the Stockholders shall not have negotiation, execution, delivery or performance of this Agreement, (2) the due diligence investigation conducted by Parent and its Representatives and Affiliates, and (3) any obligation discussions or information regarding the Company and its Subsidiaries provided or otherwise made available in connection with the transactions contemplated by this Agreement; and (xiii) enforcing the indemnification rights of the Parent Indemnified Parties hereunder.
(b) From and after the Closing, each Non-Dissenting Stockholder further covenants and agrees to indemnify indemnify, defend, protect and hold harmless the Parent or Acquisition Sub from and against any Loss resulting Indemnified Parties from, against and in respect of any Damages suffered, sustained, incurred or paid by any Parent Indemnified Party, in each case in connection with, resulting from or arising out of, relating to, in the nature of, directly or caused by indirectly (whether or not involving a third party claim): (i) the breach of any such surviving representation or warranty or covenant of the Stockholders contained made by such Non-Dissenting Stockholder in this Agreement, any of the Transaction Documents, Agreement or in any certificate delivered pursuant to or provided in connection with the consummation of the transactions contemplated by this Agreement; (ii) the breach of any covenant or agreement on the part of such Non-Dissenting Stockholder set forth in this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 any certificate delivered or provided in connection with the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent consummation of the Acquisition Pricetransactions contemplated by this Agreement; and (3iii) all amounts payable enforcing the indemnification rights of the Parent Indemnified Parties hereunder.
(c) From and after the Closing, Parent, Merger Sub, the Company and its Subsidiaries, covenant and agree to indemnify, defend, protect and hold harmless the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be Seller Indemnified Parties from, against and in respect of any Damages suffered, sustained, incurred or paid by delivery any Seller Indemnified Party, in each case in connection with, resulting from or arising out of, directly or indirectly (whether or not involving a third party claim): (i) the breach of shares any representation or warranty made by Parent or Merger Sub in this Agreement or in any certificate delivered or provided in connection with the consummation of the transactions contemplated by this Agreement; (ii) the breach of any covenant or agreement on the part of Parent Common Stock by or Merger Sub set forth in this Agreement or in any certificate delivered or provided in connection with the Escrow Agent pursuant to the terms consummation of the Escrow Agreement transactions contemplated by this Agreement; and shall be borne pro rata by (iii) enforcing the Stockholders,indemnification rights of the Seller Indemnified Parties hereunder.
Appears in 1 contract
Samples: Merger Agreement (STG Group, Inc.)
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article 9, agrees jointly from and severallyafter the Closing, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to Seller shall indemnify, defend and hold Parent and Acquisition Sub and Buyer, each of the Group Companies and/or their respective officers, directors, employeesmembers, Affiliates and employees and/or agents (collectively, the "Indemnitees"each a “Buyer Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of of:
(i) the failure any breach of any representation or warranty made by the Company contained in Article 3 (disregarding for purposes of proving any Stockholder in this Agreement, in Loss any of the Transaction Documents reference to “materiality” or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another dateCompany Material Adverse Effect), or ;
(ii) any breach of any representation and warranty made by Seller contained in Article 4 (disregarding for purposes of proving any Loss any reference to “materiality” or alleged Company Material Adverse Effect);
(iii) any failure of the Company or Seller to fulfill or satisfy any covenant or agreement contained herein; or
(iv) any liability of a Group Company for (A) income Taxes for any Pre-Closing Tax Period, (B) income Taxes of any member of an affiliated, consolidated, combined or unitary group of which any Group Company (or any predecessor) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or foreign law or regulation, or (C) income Taxes of another Person for a Pre-Closing Tax Period imposed on any Group Company as a transferee or successor, by contract or otherwise, which income Taxes related to an event or transaction occurring before the Closing; provided, that Seller shall only be liable under this Section 9.2(a)(iv) to the extent such income Taxes exceed the amount of income Taxes included as a liability in the determination of the Final Purchase Price pursuant to Section 2.4(b).
(b) Subject to the other provisions of this Article 9, Buyer agrees to, and shall, after the Closing, cause the Company to, indemnify, defend and hold Seller and their respective Affiliates, officers, directors, employees and agents (each a “Seller Indemnitee”) harmless from any Loss suffered or paid, directly or indirectly, as a result of, in connection with or arising out of (i) any breach of any representation or warranty made by Buyer contained in Article 5, (ii) any breach by any Stockholders Buyer of any of their its covenants or agreements contained herein and (iii) any breach by the Company of any of its covenants or therein, in each case, without giving effect agreements contained herein which are to any "materiality", "knowledge" or similar qualifications; provided, however, that be performed by the Company after the Closing Date.
(1c) the Stockholders shall not have any obligation The obligations to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered hold harmless pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in Section 9.2 shall survive the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent consummation of the Acquisition Price; and (3) all amounts payable to transactions contemplated hereby for the Indemnitees by the Stockholders applicable period set forth in Section 9.1, except for claims for indemnification under this Section 8.2(a) asserted prior to the end of such applicable period (which claims shall survive until final resolution thereof). No Buyer Indemnitee or Seller Indemnitee shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent entitled to be indemnified from or held harmless against any Loss pursuant to the terms of this Section 9.2 unless such Buyer Indemnitee or Seller Indemnitee delivers written notice of its claim for indemnification to Seller or Buyer, as the Escrow case may be pursuant to Section 10.2 on or prior to the applicable period set forth in Section 9.1.
(d) Notwithstanding any other provision in this Agreement to the contrary, Losses for which Seller has an obligation to indemnify the Buyer Indemnitees from and against under this Agreement shall be borne pro rata by the Stockholders,not include any Taxes with respect to any Post-Closing Tax Periods.
Appears in 1 contract
Samples: Securities Purchase Agreement (Compass Diversified Holdings)
General Indemnification. (a) Each StockholderSubject to the provisions of this Article 8, agrees from and after the Closing Date, Sellers, hereby agree to jointly and severallyseverally indemnify, with defend and hold harmless Buyer and all of Buyer’s Affiliates (including, after the Closing Date, the Company) and each of their respective directors, officers, managers, partners, employees, agents, equityholders, successors and assigns (each, a “Buyer Indemnified Party” and, collectively, the “Buyer Indemnified Parties”), from and against any and all Losses incurred or suffered by any Buyer Indemnified Party arising out of, based upon or resulting from any of the following:
(i) any breach of any representation or warranty contained in Article 3 or Article 4;
(ii) any breach by any Seller or the Company of, or any failure of Sellers or the Company to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Agreement;
(iii) any unpaid Transaction Expenses and Indebtedness (to the extent not deducted from the Purchase Price pursuant to Article 2);
(iv) the actual or alleged presence of any Materials of Environmental Concern on any Leased Real Property as of the Closing Date, the actual or alleged violation of any existing at the time of closing date Environmental Law by the Company prior to the Closing Date or any claim or liability under any existing at the time of closing date Environmental Law based on any act or omission of the Company prior to the Closing Date;
(v) all Taxes (or the nonpayment thereof) of (A) the Company or Sellers for all Pre-Closing Periods and Pre-Closing Partial Tax Periods and (B) any and all Taxes of any Person (other Stockholderthan the Company) imposed on the Company as a transferee or successor, except by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing.
(vi) any document purportedly executed by any Seller or the Company appearing to grant an option, warrant, purchase right, proxy, power of attorney, voting trust or other Contract with respect to representations(A) the issuance or disposition of any Equity Interests of any Seller or the Company, warranties including the Shares (other than this Agreement), or (B) the disposition of any assets of the Company, that the Sellers maintain was not, in fact, duly executed by any Seller or the Company.
(b) Subject to the provisions of this Article 9, from and covenants that are made by or agreed to by such Stockholder individuallyafter the Closing Date, with respect to which such Stockholder Buyer hereby agrees with respect to himself only, to indemnify, defend and hold Parent harmless Sellers and Acquisition Sub and their respective officersall of Sellers’Affiliates, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitationagents and successors, reasonable attorneys' fees from and expenses) ("Loss"), except with respect to failures of representations against any and warranties and breaches of covenants all Losses incurred or agreements that are made suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result Sellers arising out of, in connection with, based upon or arising out resulting from any of the following:
(i) the failure any breach or violation of any representation of the representations or warranty made by any Stockholder warranties of the Buyer contained in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or ;
(ii) any breach or alleged breach by any Stockholders violation of any of their the covenants or agreements of Buyer contained herein in this Agreement; and
(iii) Any and all liability to the Israel Tax Authority imposed or thereinsought to be imposed upon a Seller or the Sellers as a result of actions or omissions of Buyer or the Company, with respect to the Tax ruling obtained in each caseanticipation of Closing, without giving effect subsequent to the Closing Date.
(c) In the event that a Person entitled to indemnification under this Article 9 (the “Indemnified Party”) shall incur or suffer any Losses in respect of which indemnification may be sought under this Article 9 against the Person(s) required to provide indemnification under this Article 9 (collectively, the “Indemnifying Party”), the Indemnified Party shall assert a claim for indemnification by providing a written notice (the “Notice of Loss”) to the Indemnifying Party stating the nature and basis of such Notice of Loss. The Notice of Loss shall be provided to the Indemnifying Party as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss. Notwithstanding the foregoing but subject to Section 9.2, any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss in a timely manner as aforesaid, shall not relieve any Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 9.1 except to the extent that the ability of such Indemnifying Party to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss. If the Notice of Loss relates to a Third-Party Claim, the procedures set forth in Section 9.1(d) shall be applicable. If the Notice of Loss does not relate to a Third-Party Claim, the Indemnifying Party shall have 30 days from the date of receipt of such Notice of Loss to object to any "materiality"of the subject matter and any of the amounts of the Losses set forth in the Notice of Loss, "knowledge" as the case may be, by causing the Indemnifying Party to deliver written notice of objection thereof to the Indemnified Party. If the Indemnifying Party fails to send a notice of objection to the Notice of Loss within such 30-day period, the Indemnifying Party shall be deemed to have agreed to the Notice of Loss and shall be obligated to pay to the Indemnified Party the portion of the amount specified in the Notice of Loss to which the Indemnifying Party has not objected. If the Indemnifying Party sends a timely notice of objection, the Indemnifying Party and the Indemnified Party shall use their commercially reasonable efforts to settle (without an obligation to settle) such claim for indemnification. If the Indemnifying Party and the Indemnified Party do not settle such dispute within 30 days after the Indemnified Party’s receipt of the Indemnifying Party’s notice of objection, the Indemnifying Party and the Indemnified Party shall be entitled to seek enforcement of their respective rights under this Article 9.
(d) Promptly after receipt by an Indemnified Party of notice of the assertion of any claim or similar qualificationsthe commencement of any Proceeding by a third party (a “Third-Party Claim”) in respect of which the Indemnified Party shall seek indemnification hereunder, the Indemnified Party shall so notify in writing the Indemnifying Party, but, subject to Section 9.2, any failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 9.1, except to the extent that the ability of the Indemnifying Party to defend the Third-Party Claim is materially prejudiced by the Indemnified Party’s failure to give such notice. In no event shall the Indemnified Party admit any Liability with respect to such Third-Party Claim or settle, compromise, pay or discharge such Third-Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. With respect to any such Third-Party Claim (i) as to which the Indemnifying Party has acknowledged in writing its obligation to indemnify the Indemnified Party hereunder and (ii) for which the Indemnifying Party has demonstrated to the satisfaction of the Indemnified Party the economic ability to satisfy in full all damages arising from such Third-Party Claim, the Indemnifying Party shall have the right to assume the defense (at the expense of the Indemnifying Party) of any such claim through counsel chosen by the Indemnifying Party by notifying the Indemnified Party within 30 days after the receipt by the Indemnifying Party of the Indemnified Party’s notice of the Third-Party Claim; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party; provided, however, that if the Indemnified Party has been advised by its counsel that there are one or more legal defenses available to it that are different from or additional to those available to any Indemnifying Party or that there is otherwise a potential conflict between the interests of the Indemnified Party and any Indemnifying Party, the Indemnified Party shall have the right to employ separate counsel to represent it at the expense of the Indemnifying Party. Subject to the preservation of attorney-client privilege, the Indemnifying Party agrees to render to the Indemnified Party, its counsel and agents such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such claim, which assistance shall include, to the extent reasonably requested, the retention and provision of records and information reasonably relevant to such Third-Party Claim. Unless such settlement (1w) includes only the Stockholders payment of monetary damages (which are fully paid by the Indemnifying Party), (x) does not impose any injunctive or equitable relief upon the Indemnified Party, (y) does not require any admission or acknowledgment of liability or fault of the Indemnified Party and (z) contains an unconditional release of the Indemnified Party in respect of such claim, the Indemnifying Party may not settle or otherwise dispose of any Third-Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(e) With respect to any Third-Party Claim as to which the Indemnifying Party shall have any acknowledged in writing its obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting fromthe Indemnified Party hereunder, arising out of, relating to, in the nature of, or caused after written notice by the breach Indemnifying Party to the Indemnified Party of the election by the Indemnifying Party to assume control of the defense of any such surviving representation Third-Party Claim, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any defense costs or warranty or covenant fees subsequently incurred by such Indemnified Party in connection with the defense thereof, except as set forth in Section 9.1(d). If the Indemnifying Party does not assume control of the Stockholders contained in this Agreement, any defense of such Third-Party Claim within 30 days after the receipt by the Indemnifying Party of the Transaction Documents, or any certificate delivered notice required pursuant to this Agreement until Parent or Acquisition Sub Section 9.1(d), the Indemnified Party shall have suffered Losses the right to defend such Third-Party Claim in excess of $200,000 in such manner as it may deem appropriate at the aggregate (after which the Stockholders shall be obligated to indemnify Parent cost and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent expense of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Indemnifying Party.
Appears in 1 contract
General Indemnification. Subject to the limitations in this ARTICLE 6, the Company Holders severally, but not jointly, based on their respective Participation Percentages, by reason of their acceptance of the consideration provided for in Section 2.1 and by virtue of the Company Stockholder Approval and/or delivery of letters of transmittal to Parent in accordance with Section 2.11.1, will defend, indemnify, and hold Parent and Surviving Corporation harmless from and against, and reimburse Parent and Surviving Corporation with respect to, any and all Indemnifiable Amounts of every nature whatsoever actually incurred by Parent or Surviving Corporation arising out of:
(a) Each Stockholder, agrees jointly any Breach of any representation or warranty of Company in Section 3.1 of this Agreement (as qualified by the Company Disclosure Schedule);
(b) any Breach of any agreement or covenant required by this Agreement to be performed by the Company or the Company Holders;
(c) any Company Transaction Expenses not set forth on the Closing Date Expense Statement and severally, with each other Stockholder, except any future employee bonuses existing at the time of the Closing that are not listed on Schedule 3.1.11(b);
(d) any Debt not paid at Closing;
(e) any inaccuracy or error in the Merger Consideration Spreadsheet or Carve Out Plan Spreadsheet;
(f) all Taxes of (or otherwise imposed on) Company with respect to any Pre-Closing Tax Period (in the case of any Straddle Period, calculated in the manner set forth in Section 4.1(d));
(g) any amounts paid to any Dissenting Stockholder in accordance with such Dissenting Stockholder’s assertion of appraisal rights in excess of the Merger Consideration such Dissenting Stockholder would have otherwise received; and
(h) the matters referenced on Schedule 6.1(h), if any. For purposes of determining the failure of any representations or warranties to be true and correct, or any covenant to be complied with, and calculating the Indemnifiable Amounts relating thereto under this ARTICLE 6, the representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, Agreement shall not be deemed qualified by any of the Transaction Documents, references to “materiality,” “Company Material Adverse Effect” or any certificate delivered pursuant to this Agreement until Parent similar standard or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,qualification.
Appears in 1 contract
Samples: Merger Agreement (Digimarc CORP)
General Indemnification. (a) Each StockholderThe provisions of this Section 10.1 shall not apply to any Losses based upon, agrees jointly and severally, with each other Stockholder, except with respect attributable to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless resulting from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made contained in Section 4.23 to be true and correct, any Environmental Claim, Environmental Liability or Remedial Action (including the Rockwell Obligations or the Ludwigshafen Contract), any Asbestos Claim or any Predecessor Environmental Liabilities, which shall instead be governed exclusively by the provisions of Section 10.3 or (ii) the failure of any Stockholder representation or warranty contained in Section 4.11 to be true and correct or Taxes, which shall instead be governed exclusively by the provisions of Section 10.6. For the avoidance of doubt, Sellers shall have no obligation to indemnify the Purchaser Indemnified Parties (as defined below) for any matter which arises solely due to the Purchaser Restructuring Transactions.
(b) Subject to Sections 10.1, 10.2, 10.4 and 10.5 hereof, from and after the Closing Date, Sellers hereby agree to jointly and severally indemnify and hold Purchaser, the Companies and each of the wholly-owned Subsidiaries (collectively, the “Purchaser Indemnified Parties”) harmless from and against any and all Losses based upon, attributable to or resulting from:
(i) the failure of any representation or warranty of Sellers or Invensys set forth in Article IV or V hereof or any representation or warranty contained in any certificate delivered by or on behalf of Sellers or Invensys pursuant to this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date made;
(ii) the breach of any covenant or other agreement on the part of Invensys or Sellers under this Agreement Agreement;
(iii) any matters in respect of the business or assets of Sellers not relating to, or forming part of, the Metering Business;
(iv) liabilities imposed upon or assessed under Title IV of ERISA solely as a result of any of the Companies or the Subsidiaries being considered an ERISA Affiliate of Invensys Inc. or any of its Affiliates, including any liabilities under the Retained Plan retained by Sellers pursuant to Section 7.3(g) hereof;
(v) the Seller Restructuring Transactions;
(vi) any matter relating to pensions, benefits or welfare plans (including retiree health and medical benefits) in respect of the Companies or the Metering Business attributable to Retired Employees or Inactive Employees on or prior to the Closing Date;
(vii) any Retroactive Insurance Adjustments;
(viii) the Legal Proceedings described in Item 3 (Minority Shareholder Litigations) under “Rest of World” in Schedule 4.21 and the Legal Proceedings described in Items 1 (Trodden), 2 (Xxxxxxxx), 3 (X.X. Xxxxxx) and 4 (X.X. Xxxxxx) under “United States” in Schedule 4.25(a), without reduction by any reserves therefor; and
(ix) the Legal Proceedings described in Items 2 (Xxxxxxxxxx), 3 (Ro-Lab American Rubber) and 4 (Xxxxx Building) under “United States” and Item 2 (Brunata) under “Rest of World” in Schedule 4.21 and Item 2 (PolluCom E) under “Rest of World” in Schedule 4.25(a) and in Item 1 (Models 143-80-4 and 143-80-6 Recalls) in Schedule 4.25(b), without reduction by the reserves therefor, but only up to $1,500,000 in the aggregate.
(c) Subject to Sections 10.2, 10.4 and 10.5 hereof, Purchaser hereby agrees to indemnify and hold Sellers and each of their wholly-owned subsidiaries (other than the Companies) harmless from and against any and all Losses based upon, attributable to or resulting from:
(i) the failure of any representation or warranty of Purchaser set forth in Article VI, or any representation or warranty contained in any certificate delivered by or on behalf of Purchaser pursuant to this Agreement, to be true and correct as of the Closing Date (unless made as of another date), or date made;
(ii) any the breach or alleged breach by any Stockholders of any covenant or other agreement on the part of their covenants Purchaser under this Agreement;
(iii) any Losses for which Sellers are not indemnifying Purchaser, including any and all Losses arising out of , based upon or agreements contained herein relating to Purchaser’s operation of the Metering Business or thereinPurchaser’s ownership of the Shares, in each case, without giving effect arising after the Closing Date and which do not constitute a breach by Sellers of any representation, warranty, covenant or agreement set forth herein;
(iv) any Losses arising out of or relating to any "materiality", "knowledge" the Replacement Plan or similar qualificationsPurchaser’s obligations thereunder in accordance with Section 7.3(g) hereof; provided, however, that and
(1v) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Purchaser Restructuring Transactions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sensus Metering Systems Inc)
General Indemnification. (a) Each StockholderSubject to the limitations set for in this Article VIII, agrees jointly and severallyelsewhere in this Agreement, with each other Stockholderfrom and after the Closing, except the Company Equityholders, severally and not jointly, on the basis of their respective Pro Rata Portion, (and in no event shall a Company Equityholder have any liability or obligation with respect to representations, warranties and covenants that are made by the acts or agreed omissions of any other Company Equityholder to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to this Agreement) shall indemnify, defend and hold Parent and Acquisition Sub and each of Parent, UCBI, Merger Subsidiary and/or their respective officers, directors, employees, Affiliates and and/or agents (collectivelyeach a “Purchaser Indemnitee” and together, the "“Purchaser Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied against any Loss actually incurred by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest Purchaser Indemnitee arising or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees resulting from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure any breach of any representation or warranty made by any Stockholder the Company contained in this AgreementArticle III, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders the Company (prior to the Closing) of any of their its covenants or agreements contained herein or therein, in each case, without giving effect which are to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused be performed by the Company on or before the Closing Date or (iii) any breach of any such surviving representation or warranty or covenant by any Company Equityholder in any Letter of Transmittal delivered by such Company Equityholder pursuant to this Agreement.
(b) Subject to the Stockholders contained limitations set forth in this Article VIII elsewhere in this Agreement, from and after the Closing, Parent and UCBI shall (and shall cause the Surviving Corporation to) indemnify, defend and hold the Company Equityholders and their respective Affiliates, officers, directors, employees, and agents (each a “Seller Indemnitee” and together, the “Seller Indemnitees”) harmless from any Loss actually incurred as a result of (i) any breach of any representation or warranty made by Parent, UCBI, or Merger Subsidiary contained in Article IV and Section 6.19(c), (ii) any breach by Parent, UCBI or Merger Subsidiary of any of its covenants or agreements contained herein, and (iii) any breach by the Transaction Documents, Surviving Corporation (including by way of being the successor of Merger Subsidiary and the Company) of any of its covenants or any certificate delivered agreements contained herein which are to be performed by the Surviving Corporation after the Closing Date.
(c) The obligations to indemnify and hold harmless pursuant to this Agreement until Section 8.2 shall survive the consummation of the transactions contemplated hereby for the applicable period set forth in Section 8.1, and no claim for indemnification hereunder may be made after the expiration of the applicable survival period, provided that if a proper Notice of Claim is delivered by Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated Stockholder Representative, as applicable, to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant prior to the terms end of such applicable survival period, then the Escrow Agreement and claim(s) specified therein shall be borne pro rata by the Stockholders,survive until final resolution thereof.
Appears in 1 contract
General Indemnification. (a) Each StockholderTNCL and NPAL, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend shall indemnify and hold Parent harmless LMC and Acquisition Sub LMC's Affiliates, successors and assigns and their respective directors, officers, directors, employees, Affiliates shareholders, partners, trustees, beneficial owners, representatives and agents attorneys in their capacity as such (collectivelyeach, the an "IndemniteesIndemnified LMC Person") harmless from an amount equal to (x) a fractionand against and with respect to, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of shall reimburse each Indemnified LMC Person for, any and all damages, losses, liabilities, obligations, claims of any kindAdjustments, interest or damages, judgments, assessments, fines, interest, penalties, costs and expenses (including, without limitation, including reasonable attorneys' fees and expenses) ("LossLosses")) resulting from, except with based upon, arising out of or otherwise in respect of, and all claims, actions, suits, proceedings, investigations or demands ("Claims") incident or relating to failures or resulting from, (i) any untrue representation, breach of representations warranty or breach or nonfulfillment of any covenant or agreement of NPAL or TNCL contained in this Agreement or in any certificate delivered pursuant hereto by NPAL or TNCL or (ii) the beneficial ownership (or exercise of any rights of beneficial ownership) of the Gemstar Shares from and warranties after the Closing by TNCL, NPAL, or any of their respective successor or assigns or the exercise by any of them of rights under the Gemstar Stockholders' Agreement from and breaches of covenants or agreements that are made by or agreed to by such Stockholder individuallyafter May 2, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses2001 (including, suffered or paid, directly or indirectlywithout limitation, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents foregoing directing LMC or in its Affiliates to take any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another dateaction thereunder), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that neither TNCL nor NPAL shall be obligated to -------- ------- indemnify the LMC Indemnified Persons under this Section 10.1(a) to the extent that such Losses or Claims arise out of or are based upon any breach by LMC or LTVGIA of any of their representations, covenants or agreements set forth herein or a breach by LMC of Section 8 of the Gemstar Stockholders' Agreement.
(1b) the Stockholders LMC shall not have any obligation to indemnify Parent or Acquisition Sub and hold harmless TNCL and TNCL's Affiliates, successors and assigns and their respective directors, officers, employees, shareholders, partners, trustees, beneficial owners, representatives and attorneys in their capacity as such (each, an "Indemnified TNCL Person") from and against and with respect to, and shall reimburse each Indemnified TNCL Person for, any Loss and all Losses resulting from, based upon, arising out of or otherwise in respect of, and all Claims incident or relating toto or resulting from, in the nature ofany untrue representation, or caused by the breach of any such surviving representation or warranty or breach or nonfulfillment of any covenant or agreement of the Stockholders LMC or LTVGIA contained in this Agreement, any of the Transaction Documents, Agreement or in any certificate delivered pursuant to this Agreement until Parent hereto by LMC or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders LTVGIA; provided, however, -------- ------- that LMC shall not be obligated to indemnify Parent and Acquisition Sub from and against Losses only the Indemnified TNCL Persons under this Section 10.1(b) to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees that such Losses or Claims arise out of any breach by the Stockholders for claims TNCL or NPAL of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,any their representations, covenants or agreements set forth herein.
Appears in 1 contract
Samples: Merger Agreement (Gemstar Tv Guide International Inc)
General Indemnification. (a) Each StockholderSeller, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties covenants and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend defend, protect and hold Parent harmless the Indemnified Parties from, against and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount in respect of all damagesDamages suffered, lossessustained, liabilitiesincurred or paid by any Indemnified Party, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in each case in connection with, resulting from or arising out of of, directly or indirectly (whether or not involving a third party claim): (i) the failure inaccuracy or breach of any representation or warranty made by the Company or any Stockholder Seller set forth in this Agreement, in any of the Transaction Documents Agreement or in any other agreement or any certificate or other instrument information delivered or document provided in connection with or related to Parent the consummation of the transactions contemplated by this Agreement; (ii) the nonfulfillment of any covenant or Acquisition Sub agreement on the part of the Company, any Subsidiary or any Seller set forth in this Agreement or in any agreement or certificate executed and delivered by the Company, any Subsidiary or any Seller pursuant to this Agreement or in the transactions contemplated hereby; (iii) any Liabilities not incurred in the ordinary course of business and consistent with past practices, which arise out of, relate to be true and correct in all respects as or are associated with the business, operations or assets of the date of this Agreement Company, any Subsidiary or any Seller on or prior to the Closing Date; (iv) the Benefit Plans and any and all benefits accrued under the Benefit Plans as of the Closing Date (unless made as of another date), or (ii) and any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, all other Liabilities arising out of, relating toor in connection with the form or operation of the Benefit Plans on or prior to the Closing Date; (v) any and all Liabilities resulting from any litigation, in suit, proceeding, action, claim, demand or investigation pending or threatened against the nature ofCompany or any Subsidiary or arising out of the operations of the Company or any Subsidiary on or prior to the Closing Date including, or caused by the breach of without limitation, any such surviving representation or warranty or covenant matter listed on Schedule 3.13; (vi) without duplication of the Stockholders contained in this Agreement, recovery pursuant to any of the Transaction Documentsforegoing, any and all Liabilities for Taxes (x) in connection with or arising out of the Company’s or any certificate delivered pursuant Subsidiary’s activities or business on or prior to this Agreement until Parent or Acquisition Sub have suffered Losses the Closing Date (determined, with respect to taxable periods that begin before and end after the Closing Date, in accordance with the allocation provisions of Section 6.6(b)) in excess of $200,000 the amount of such Taxes reflected as a current liability in the aggregate computation of Closing Working Capital, or (after y) owing by any Person other than the Company or any Subsidiary for which the Stockholders shall Company or any Subsidiary may be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000liable, including, without limitation (A) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law); , (2B) the aggregate amount to be payable to the Indemnitees as a transferee or successor, or (C) by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Pricecontract; and (3vii) all amounts payable any Liability attributable to any recovery relating to the Indemnitees Pending XXXX Contract Claims set forth in Section 6.9 hereof, including without limitation any claims by former or current employees relating to bonus payments owed in connection with the Awards Fee Claim which are not satisfied by the Stockholders for claims for indemnification under this bonus pool allocation set forth in Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,6.9(b)(i).
Appears in 1 contract
General Indemnification. (a) Each StockholderThe Guarantor and Lessee, agrees jointly and severally, with whether or not any of the transactions contemplated hereby shall be consummated, hereby assume liability for, and indemnify, protect, defend, save and keep harmless each other StockholderIndemnitee, except with respect to representationson an After Tax Basis, warranties from and covenants against any and all Claims that are made may be imposed on, incurred by or agreed asserted against such Indemnitee in any way relating to by such Stockholder individuallyor arising out of:
(a) any of the Operative Documents or any of the transactions contemplated thereby, with and any amendment, modification or waiver in respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents thereof; or
(collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (yb) the amount Properties or any part thereof or interest therein;
(c) the purchase, design, construction, preparation, installation, inspection, delivery, non-delivery, acceptance, rejection, ownership, management, possession, operation, rental, lease, sublease, repossession (whether by summary proceedings or otherwise), maintenance, repair, alteration, modification, addition, substitution, storage, transfer of all damagestitle, lossesredelivery, liabilitiesuse, obligationsfinancing, claims of any kindrefinancing, interest or expenses disposition, operation, condition, sale (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"any sale pursuant to the Lease), except return or other disposition of all or any part of any interest in the Properties or the imposition of any Lien (or incurring of any liability to refund or pay over any amount as a result of any Lien) thereon, including, without limitation: (l) personal injury, death or property damage, including Claims or penalties arising from any violation of law or in tort (strict liability or otherwise), (2) latent or other defects, whether or not discoverable, (3) any Claim based upon a violation or alleged violation of the terms of any Applicable Law or any restriction, easement, condition or covenant or other matter affecting title to the Properties or any part thereof, (4) the making of any Modifications in violation of any Insurance Requirements, (5) any Claim for patent, trademark or copyright infringement, and (6) Claims arising from any public improvements with respect to failures of representations and warranties and breaches of covenants the Properties resulting in any change or agreements that are made by special assessments being levied against the Properties or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of any Claim for utility "tap-in" fees;
(id) the failure offer, issuance, sale or delivery of the Commercial Paper Notes, the Liquidity Notes or the Notes;
(e) the breach or alleged breach by the Guarantor or the Lessee of any representation or warranty made by any Stockholder in this Agreement, it or deemed made by it in any of the Transaction Documents Operative Document or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement required to be true and correct in all respects as of delivered by any Operative Document or the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by the Guarantor or the Lessee of any Stockholders covenant or obligation made by it in any Operative Document;
(f) the retaining or employment of any broker, finder or financial advisor by the Guarantor or Lessee to act on its behalf in connection with the Operative Documents, or the authorization of any broker or financial adviser retained or employed by the Guarantor or the Lessee so to act, or the incurring of any fees or commissions by the Lessee or the Guarantor to which the Indemnitees might be subjected by virtue of their entering into the transactions contemplated by the Operative Documents;
(g) the existence of any Lien on or with respect to the Properties, any Basic Rent or Supplemental Rent, title thereto, or any interest therein, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of any of their covenants the Properties or agreements contained herein by reason of labor or thereinmaterials furnished or claimed to have been furnished to the Lessee, or any of its contractors or agents or by reason of the financing of any personalty or equipment purchased or leased by the Lessee or Modifications constructed by the Lessee, except in each caseall cases Permitted Liens;
(h) any act or omission by the Construction Agent under the Construction Agency Agreement, without giving effect to and any "materiality"breach of any requirement, "knowledge" condition, restriction or similar qualificationslimitation in any Deed or other Operative Document; or
(i) any easement, license, right-of-way, covenant, restriction or other document or agreement entered into by Issuer at the request of Lessee; 50 provided, however, that neither the Guarantor nor the Lessee shall be required to indemnify any Indemnitee under this Section 14.1 for any of the following: (1) any Claim to the Stockholders shall not have extent that such Claim resulted from the willful misconduct or gross negligence of such Indemnitee, (2) any obligation Claim to indemnify Parent the extent resulting from Lessor Liens which the Indemnitee is responsible for discharging under the Operative Documents, (3) any Claim to the extent directly resulting from a breach of an Operative Document or Acquisition Sub from and against any Loss resulting from, Applicable Law by such Indemnitee (except for a breach by the Facility Lender that is arising out of, relating to, in the nature of, of or caused attributable to a breach by the breach Lessee or Guarantor of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, its obligations under any of the Transaction Operative Documents), or and (4) any certificate delivered pursuant Claim related to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only Properties to the extent they exceed $200,000); attributable to acts or events occurring after the Expiration Date unless an Event of Default has occurred and is continuing and the Participants are exercising remedies against the Lessee or the Properties in respect of the Operative Documents (2) in which event all of the aggregate amount to be payable to the Indemnitees by the Stockholders for claims foregoing provisions of indemnification under this Section 8.2(a) 14.1 shall not exceed an amount equal to 25 percent remain in full force and effect). It is expressly understood and agreed that the indemnity provided for herein shall survive the expiration or termination of the Acquisition Price; Lease and the other Operative Documents and the payment by Lessee and Guarantor of all amounts due thereunder for a period of three (3) all amounts payable years (but shall continue in full force and effect following such date with respect to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant any Claim asserted prior to the terms of the Escrow Agreement such date), and shall be borne pro rata by separate and independent from any remedy under the Stockholders,Lease or any other Operative Document; provided that, to the extent that any Claim arises after such three (3) year period which was not asserted during such three (3) year period due to a failure to discover such Claim or for any other reason, the indemnity provided for in this Section 14.1 shall be revived upon the assertion of such Claim solely with respect to such Claim.
Appears in 1 contract
General Indemnification. (a) Each StockholderSeller, agrees jointly on a several basis, shall indemnify and severally, with each other Stockholder, except with respect to representations, warranties defend the Buyer and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, its Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"“Buyer Indemnified Parties”), except with respect to failures and shall hold each of representations them harmless, from and warranties and breaches of covenants or agreements against all Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, any Buyer Indemnified Party in connection with, with or arising out of resulting from:
(i) the failure of any inaccuracy in, or breach of, any representation or warranty made by any Stockholder Seller in this Agreement, in any of the Transaction Documents Agreement or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to delivered in connection with this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or Agreement;
(ii) any breach or alleged breach non-fulfillment of any covenants, obligations or agreements made by any Stockholders Seller in this Agreement;
(iii) to the extent not included in any adjustment to the Cash Purchase Price pursuant to Sections 1.3 and 1.4, any Seller Transaction Expenses and any obligation or liability to any Person disclosed (or required to be disclosed) on Schedule 3.27 of this Agreement; and
(iv) any Pre-Closing Taxes.
(b) The Buyer shall indemnify the Sellers (collectively, the “Seller Indemnified Parties”), and shall hold each of them harmless, from and against all Losses that are incurred or suffered by any Seller Indemnified Party in connection with or resulting from:
(i) any inaccuracy in, or breach of, any representation or warranty made by the Buyer in this Agreement or any certificate or instrument delivered in connection with this Agreement;
(ii) any breach or non-fulfillment of any of their covenants covenants, obligations or agreements contained herein made by the Buyer in this Agreement; and
(iii) any Taxes for any Post-Closing Tax Periods and Taxes for Straddle Periods not allocable to the Sellers under Section 7.5.
(c) Notwithstanding the foregoing, the Sellers shall not be obligated to provide any indemnification for Losses pursuant to claims under Section 8.2(a)(i) hereof in respect of breaches of, or thereininaccuracies in, representations and warranties made by a Seller or by the Sellers unless the aggregate amount that the Buyer Indemnified Parties are entitled to recover in respect of all such claims exceeds $150,000 (the “Threshold”), in each case, without giving effect to any "materiality", "knowledge" or similar qualificationswhich case the Sellers will be liable for the full amount of the Losses; provided, however, that (1) the Stockholders Threshold shall not have any obligation apply to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out claims for indemnification based upon a breach of, relating toor inaccuracy in, any Fundamental Representation.
(d) In addition, except as otherwise provided below, the aggregate liability of the Sellers under Section 8.2(a)(i) hereof in respect of breaches of, or inaccuracies in, representations and warranties made by any Seller or by the Sellers shall not exceed, in the nature aggregate, the Escrow Amount (the “Cap”); provided, however, that the Cap shall not apply to any breach of, or caused by inaccuracy in, any of the breach Fundamental Representations for which the aggregate liability of the Sellers shall not exceed the Purchase Price.
(e) For purposes of determining the existence of any such surviving inaccuracy in, or breach of, representation or warranty in Article 3 all qualifiers to knowledge, materiality, Material Adverse Effect and the like shall apply; provided, however that all such qualifiers shall be disregarded when calculating the amount of any Losses incurred in connection with any such inaccuracy in, or covenant breach of, representation or warranty until such time as the Threshold has been exceeded.
(f) Notwithstanding anything contained in this Article 8 to the contrary, no limitation of liability provided for in Section 8.1 or this Section 8.2 (including paragraphs (c), (d) and (e) above) shall apply in the event of intentional misrepresentation, fraud or willful misconduct.
(g) A party entitled to indemnification hereunder shall herein be referred to as an “Indemnitee.” A party obligated to indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.”
(h) As soon as is practicable after an Indemnitee receives notice of any claim or the commencement of any action by any third party that such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder (a “Third Party Claim”), such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under Article 8 hereof, notify such Indemnitor in writing of such claim, action or Loss, as the case may be; provided, however, that failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the extent Indemnitor is actually prejudiced in its defense of the Stockholders contained action by such failure. Any such notification must be in writing and must state in reasonable detail the nature and basis and amount of the claim, action or Loss, to the extent known, and contain a copy of all material written evidence thereof in Indemnitee’s possession. Indemnitor shall have the right, using counsel reasonably acceptable to the Indemnitee, to contest, defend, litigate or settle any such Third Party Claim that involves solely monetary damages; provided that the Indemnitor shall have notified the Indemnitee in writing of its intention to do so within 30 days of the Indemnitee having given notice of the Third Party Claim to the Indemnitor. The Indemnitee shall have the right to participate in and be consulted in, and to be represented by counsel (at its own expense) in, any such contest, defense, litigation or settlement conducted by the Indemnitor.
(i) The Indemnitor, if the Indemnitor shall have assumed the defense of any Third Party Claim as provided in this Agreement, shall not consent to a settlement of any such Third Party Claim without the prior written consent of the Transaction DocumentsIndemnitee, or except as provided in clause (j) below. The Indemnitee shall have the sole and exclusive right to settle any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent Third Party Claim, on such terms and Acquisition Sub from and against Losses only conditions as it deems reasonably appropriate, to the extent they exceed $200,000); such Third Party Claim involves equitable or other non-monetary relief. All expenses (2including reasonable attorneys’ fees) the aggregate amount to be payable to the Indemnitees incurred by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of Indemnitee in connection with the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) foregoing shall be paid by delivery the Indemnitor.
(j) If a firm offer is made to settle a Third Party Claim without leading to any liability or the creation of shares any financial or other obligation on the part of Parent Common Stock by the Escrow Agent pursuant Indemnitee and provides, in customary form, for the release of each Indemnitee from all liabilities and obligations in connection with such Third Party Claim and the Indemnitor desires to accept and agree to such offer, the Indemnitor shall give written notice to that effect to the terms Indemnitee (such notice, a “Settlement Notice”). If the Indemnitee fails to consent to such firm offer within twenty (20) days after its receipt of the Escrow Agreement Settlement Notice, the Indemnitee may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnitor as to such Third Party Claim shall be borne pro rata by not exceed the Stockholders,amount of such settlement offer. If the Indemnitee fails to consent to such firm offer and also fails to assume defense of such Third Party Claim within twenty (20) days after its receipt of the Settlement Notice, the Indemnitor may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Everyday Health, Inc.)
General Indemnification. (a) Each StockholderFrom and after the Closing (but subject to the terms and conditions of this Section 9), agrees each Seller, severally and not jointly (subject to Section 9.8), based on his or its respective Pro Rata Share, shall indemnify Parent, the Surviving Entity, their respective Affiliates, and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and of their respective officers, directors, employees, Affiliates agents, representatives, successors and agents permitted assigns (collectivelyeach a “Buyer Indemnitee”) for any Loss suffered or incurred by any such Buyer Indemnitee as result of, or in connection with, any of the "Indemnitees"following:
(i) harmless from an amount equal to (xA) a fraction, the numerator any breach or inaccuracy as of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kindrepresentation or warranty of the Company contained in Section 4, interest in the certificate delivered pursuant to Section 7.2(d)(i) or expenses in any other agreement, certificate or other document delivered at or prior to the Closing by or on behalf of the Company in connection with this Agreement or (includingB) any Seller Taxes;
(ii) any nonfulfillment or breach by the Company prior to the Closing of any covenant or agreement set forth in Section 6.1, without limitationSection 6.11 and Section 6.14;
(iii) any inaccuracy or error in the Closing Payment Schedule, reasonable attorneys' fees and expensesincluding any misallocation of the Merger Consideration among Sellers as a result thereof;
(iv) any Seller Expenses, Closing Indebtedness, Change of Control Payments or Closing Payroll Taxes to the extent not included in the calculation of the Final Merger Consideration or not otherwise paid at or prior to the Closing;
("Loss")v) any amounts payable in respect of Dissenting Shares, except to the extent greater than the Merger Consideration per share otherwise payable with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, shares if appraisal rights had not been exercised with respect thereto (as provided in Section 2), and any reasonable costs or expenses incurred by any Buyer Indemnitee as a result of any holder of Shares exercising appraisal rights under Section 262 of the Act;
(vi) the Specified Matter 1;
(vii) the Specified Matter 2; or
(viii) any Fraud by the Company prior to which such Stockholder agrees the Closing in connection with the transactions contemplated by this Agreement.
(b) From and after the Closing (but subject to the terms and conditions of this Section 9), each Seller, severally (subject to Section 9.8), shall indemnify the Buyer Indemnitees from all Losses, suffered or paid, directly or indirectly, in respect of any Losses which any Buyer Indemnitee may suffer as a result of, arising out of, in connection with, with or arising out relating to any of the following:
(i) the failure any breach or inaccuracy of any representation or warranty made by any Stockholder of such Seller contained in this Agreementsuch Seller’s Letter of Transmittal or Option Letter, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or applicable; or
(ii) any breach nonfulfillment or alleged breach by any Stockholders such Seller of any of their his, her or its covenants or agreements contained herein or thereinin such Seller’s Letter of Transmittal or Option Letter, in as applicable.
(c) From and after the Closing (but subject to the terms and conditions of this Section 9), Parent shall, and after the Closing shall cause the Surviving Entity to, indemnify the Sellers, their respective Affiliates and each caseof their respective officers, without giving effect to any "materiality"directors, "knowledge" or similar qualifications; providedemployees, howeveragents, that representatives, successors and permitted assigns (1the “Seller Indemnitees” and, together with the Buyer Indemnitees, the “Indemnified Parties”) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against for any Loss resulting from, arising out of, relating to, in the nature suffered or incurred by any such Seller Indemnitee as result of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreementconnection with, any of the Transaction Documentsfollowing:
(i) any breach or inaccuracy as of the Closing Date of any representation or warranty of Parent or Merger Sub contained in Section 5, or any in the certificate delivered pursuant to Section 7.3(c)(i) or in any other agreement, certificate or other document delivered at or prior to the Closing by or on behalf of Parent or Merger Sub in connection with this Agreement;
(ii) any nonfulfillment or breach of any covenant, agreement or other provision by Parent or Merger Sub under this Agreement until or any nonfulfillment or breach of any covenant, agreement or other provision by the Surviving Entity after the Closing (including by way of being the successor of Merger Sub and the Company) under this Agreement; or
(iii) any Fraud by Parent or Acquisition Merger Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only prior to the extent they exceed $200,000); (2) Closing in connection with the aggregate amount to be payable to the Indemnitees transactions contemplated by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Agreement.
Appears in 1 contract
Samples: Merger Agreement (PAE Inc)
General Indemnification. (a) Each StockholderLessee agrees to assume liability for, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend protect, defend, save and hold Parent keep harmless Lessor and Acquisition Sub Mortgagee, and their respective managers, members, partners, officers, directors, employees, Affiliates employees and agents directors (collectively, the "“Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting fromand all Claims that may be imposed on, incurred by or asserted against the Indemnitees, arising out of the operation, possession, use, maintenance, repair or alteration of the Property or this Lease prior to or during the Term, including any strict liability under Applicable Laws and Restrictions and including Environmental Laws or the breach of Lessee’s obligations hereunder; including Claims arising prior to or during the Term with respect to:
(i) any injury to, or the death of, relating toany Person or any damage to or loss of property,
(ii) the use, in nonuse, occupancy, construction, repair or rebuilding of the nature ofProperty (or adjoining property, to the extent that any loss or damage to adjoining property arises from or out of the Property),
(iii) the condition of the Property,
(iv) violation by Lessee or any of its Affiliates or any assignee or sublessee of any provision of this Lease, or caused of Applicable Laws and Restrictions,
(v) any contest by Lessee under Section 10.1, and
(vi) the breach of any such surviving representation or representation, warranty or covenant of Lessee in this Lease, provided that Lessee shall not be required to indemnify any Indemnitee under this Section 20.1 for any of the Stockholders following: (1) any Claim to the extent attributable to acts or events which occur after the later of (a) the expiration or earlier termination of the Term and (b) the date on which possession of the Property has been returned to Lessor, (2) any Claim to the extent resulting from the willful misconduct or gross negligence of any Indemnitee, its agents, employees or Affiliates, (3) any expense expressly provided under this Lease to be paid or borne by a party other than Lessee, (4) any Claim to the extent resulting from a transfer by any Indemnitee or any Affiliate of all or part of its direct or indirect interest in this Lease or the Property, (5) any Claim to the extent resulting from a material breach or violation by Lessor or its agents, employees or Affiliates of any of Lessor’s representations, warranties or covenants in this Lease or from a violation of Applicable Laws and Restrictions by any Indemnitee or its agents, employees or Affiliates not required to be complied with by Lessee hereunder, (6) any Claims in respect of Taxes (which shall be covered to the extent, but only to the extent, provided for in Section 20.2), (7) without limiting immediately preceding clause (6), any Claim in respect of any real estate mortgage investment conduit (REMIC)-related or grantor trust-related excise, income or other taxes, or (8) any Claim for losses to the extent based on the inability to invest in another transaction or use for any other purpose the funds invested in connection with the transactions contemplated hereby. Lessee shall be entitled to credit against any payments due under this Section 20.1 any insurance recoveries or other reimbursements actually received by any Indemnitee in respect of the related Claim under or from insurance paid for by Lessee or assigned to Lessor by Lessee.
(b) In case any Claim (including any threatened Claim) shall be made or brought against any Indemnitee, such Indemnitee shall give prompt notice thereof to Lessee. Lessee shall be entitled, at its expense, acting through counsel selected by Lessee, to participate in, and, to the extent that Lessee desires to and provided no Event of Default exists, assume and control the negotiation, litigation and/or settlement thereof; provided, no such settlement shall subject any Indemnitee to criminal liability or, without the prior consent of the Indemnitee, obligate the Indemnitee for the payment of any expense unless the same is being paid by Lessee. Such Indemnitee may participate in a reasonable manner at its own expense and with its own counsel in any proceeding conducted by Lessee in accordance with the foregoing. If Lessee shall defend an Indemnitee in any such suit or proceeding, then Lessee shall not be obligated to reimburse such Indemnitee for the its attorneys’ fees or expenses incurred in connection with such suit or proceeding; provided that, if in the written opinion of counsel to such Indemnitee an actual or potential material conflict of interest exists such that such Indemnitee must be represented by separate counsel and such Indemnitee informs the Lessee that such Indemnitee desires to be represented by separate counsel, the reasonable fees and expenses of any such separate counsel shall be borne by Lessee; provided further, in no event shall Lessee be obligated to pay for more than one separate counsel for all Indemnitees.
(c) Each Indemnitee shall at Lessee’s expense supply Lessee with such information and documents reasonably requested by Lessee and within such Indemnitee’s control in connection with any Claim for which Lessee may be required to indemnify such Indemnitee under this Section 20.
1. An Indemnitee shall not enter into any settlement or other compromise with respect to any Claim for which indemnification is required under this Section 20.1 without the prior written consent of Lessee. Lessee will not settle any Claim on a basis that (x) admits any criminal violation, gross negligence or willful misconduct on the part of an Indemnitee without such Indemnitee’s prior written consent, (y) creates a material risk of the sale, loss, or forfeiture of the Property or (z) impairs in any way the payment of Base Net Rent or Supplemental Rent or gives rise to the creation of any Lien with respect to the Property.
(d) Upon final settlement and payment of any Claim by Lessee pursuant to this Section 20.1 to or on behalf of an Indemnitee, Lessee, without any further action, shall be subrogated to any and all claims that such Indemnitee may have relating thereto (other than claims in respect of insurance policies maintained by such Indemnitee at its own expense), and such Indemnitee shall execute and deliver to Lessee such instruments of assignment and conveyance, evidence of claims and payment and other documents, instruments and agreements as may be necessary or appropriate to preserve any such claims and otherwise cooperate with Lessee and give such further assurances as are necessary or advisable to enable Lessee vigorously to pursue such claims.
(e) Any amount payable to such Indemnitee pursuant to this Section 20.1 shall be paid within thirty (30) days after written demand therefor from such Indemnitee together with a written statement describing the basis for such indemnity, the computation of the amount so payable and such additional information as Lessee may reasonably request and which is reasonably available to such Indemnitee to substantiate properly the requested payment.
(f) Notwithstanding anything to the contrary contained in this AgreementLease, Lessee shall have no liability to any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only Indemnitee to the extent they exceed $200,000); that such liability derives (2directly or indirectly) from a contractual indemnity given by such Indemnitee to any other Person, other than a member, manager, partner, officer, director or employee of such Indemnitee, in such person’s capacity as such.
(g) With respect to any Indemnitee not a party to this Lease, Lessee may require such Indemnitee to acknowledge the aggregate amount terms and conditions hereof agree in writing, in a form reasonably acceptable to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant Lessee, to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,this Section 20.1, before making any payment to such Indemnitee under this Section 20.1.
Appears in 1 contract
Samples: Lease Agreement (Ca, Inc.)
General Indemnification. (a) Each StockholderAfter the Closing, the Sellers agrees to jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to severally indemnify, defend and hold Parent Buyer and Acquisition Sub and their respective its officers, directors, employees, representatives and Affiliates (each a “Buyer Indemnitee” and agents (collectively, together the "“Buyer Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any actual damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, including reasonable attorneys' ’ fees and expensesexpenses (collectively, “Loss”) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by Seller in ARTICLE 2 of this Agreement and in any Stockholder in other Transaction Document to be true and correct as of the date of this Agreement, in (ii) any breach by Seller of any of the Transaction Documents its covenants or agreements contained herein or in any certificate other Transaction Documents, (iii) the Closing Date Funded Indebtedness that remains outstanding following the Closing to the extent not disclosed to Buyer; (iv) any income Taxes with respect to SMP for any Pre-Closing Tax Period (including for the avoidance of doubt, all Taxes that relate to the portion of a Straddle Period ending on the Closing Date), (v) any Fraud by Seller or SMP related to this Agreement and the transactions contemplated hereby, and (vi) the matters described in Section 7.2(a)(vi) of the Disclosure Schedule, in each case, subject to the other instrument provisions of this ARTICLE 7 (including the limitations set forth in Section 7.4 and Section 7.5).
(b) After the Closing, Xxxxx agrees to indemnify, defend and hold the Sellers and their respective officers, directors, employees and representatives (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from any Loss suffered or document provided to Parent paid, directly or Acquisition Sub pursuant to indirectly, as a result of (i) the failure of any representation or warranty made by Buyer in ARTICLE 3 of this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)Agreement, or (ii) any breach or alleged breach by any Stockholders Buyer of any of their its covenants or agreements contained herein or thereinherein.
(c) The obligations to indemnify and hold harmless pursuant to clause (i) of Section 7.2(a) and pursuant to clause (i) of Section 7.2(b) shall survive the consummation of the transactions contemplated hereby only for the duration of the applicable Survival Period and the obligations to indemnify and hold harmless pursuant to clause (ii) of Section 7.2(a) and pursuant to clause (ii) of Section 7.2(b) shall survive the consummation of the transactions contemplated hereby only for the period set forth in Section 7.1(b), in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock pursuant to such clauses asserted with reasonable specificity in a Claim Notice that is received by the Escrow Agent pursuant Responsible Party prior to the terms end of the Escrow Agreement and such period, which such claims shall be borne pro rata by the Stockholders,survive until final resolution thereof.
Appears in 1 contract
General Indemnification. (a) Each StockholderIf, agrees jointly and severallyafter the Closing Date, with each other StockholderParent, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and Surviving Corporation and/or their respective officers, directors, employees, Affiliates and and/or agents (collectively, each a “Buyer Indemnitee” and together the "“Buyer Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all suffer any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' ’ fees and expenses) ("“Loss"”), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder the Company contained in this Agreement, in any Article III of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct (A) as of the date of this Agreement, or (B) (x) as of the Closing Date or (y) as of the date when made in the case of any representation or warranty which specifically relates to an earlier date, as applicable, or (ii) any breach by the Company of any of its covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date, then, subject in all respects cases to the other provisions of this Article VIII, such Buyer Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the Escrow Account.
(b) After the Closing, each of Parent and the Surviving Corporation agrees to indemnify, defend and hold harmless each of the holders of Common Stock of the Company as of the date of this Agreement and their respective officers, directors, employees, Affiliates and/or agents (each a “Seller Indemnitee” and together the “Seller Indemnitees”) from any Loss as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by Parent or Newco in this Agreement contained in Article IV of this Agreement to be true and correct (A) as of the date of this Agreement or (B)(x) as of the Closing Date or (unless made y) as of another the date when made in the case of any representation or warranty which specifically relates to an earlier date), or as applicable, (ii) any breach by Parent or alleged breach by any Stockholders Newco of any of their its covenants or agreements contained herein, and/or (iii) any breach by the Surviving Corporation (including by way of being the successor of Newco and the Company) of any of its covenants or agreements contained herein or therein, in each case, without giving effect which are to any "materiality", "knowledge" or similar qualifications; provided, however, that be performed by the Surviving Corporation after the Closing Date.
(1c) the Stockholders shall not have any obligation The obligations to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in hold harmless pursuant to clauses 8.2(a)(i) and 8.2(b)(i) shall survive the nature of, or caused by the breach of any such surviving representation or warranty or covenant consummation of the Stockholders contained transactions contemplated hereby for the period set forth in this AgreementSection 8.1, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders except for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to such clauses asserted prior to the terms end of the Escrow Agreement and such period which claims shall be borne pro rata by the Stockholders,survive until final resolution thereof.
Appears in 1 contract
Samples: Merger Agreement (Nautilus, Inc.)
General Indemnification. (a) Each StockholderSubject to Section 7.2(c), each of the Effective Time Holders, severally (and not jointly) pro rata based upon each Effective Time Holder’s Pro Rata Share (except to the extent paid from the General Escrow Amount, in which case such indemnity shall be joint and several), agrees jointly to indemnify and severallydefend the Buyer Indemnified Parties and save and hold each of them harmless from and against and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses which any such Buyer Indemnified Party may suffer, with each sustain or become subject to as a result of, arising from, in connection with, by virtue of or related to:
(i) any inaccuracy or breach of any representation or warranty of the Acquired Companies set forth in ARTICLE III or in any Transaction Document delivered by any Acquired Company or any Effective Time Holder, in all cases without giving effect to any qualifications as to materiality, Material Adverse Effect or similar qualifications;
(ii) any breach or non-fulfillment of any covenant, agreement or other Stockholderprovision by the Company or any Effective Time Holder under this Agreement, except with respect to representations, warranties and covenants that are made the Schedules or any certificate furnished by or agreed on behalf of the Company or Effective Time Holders pursuant to by such Stockholder individuallythis Agreement which covenant, agreement or other provision, with respect to which the Company, is required to be performed on or prior to the Closing;
(iii) any Transaction Expenses to the extent not included in Final Transaction Expenses or any Indebtedness to the extent not included in Final Indebtedness;
(iv) any claims arising out of the inaccuracy of the information set forth on the Payout Spreadsheet;
(v) any claims arising out of or related to the cancellation of the Company Options;
(vi) Pre-Closing Taxes (except to the extent of an increase to Pre-Closing Taxes related to the claiming, after the Closing, of an Australian Foreign Income Tax Offset in accordance with the Income Tax Assessment Xxx 0000 and the impact of such Stockholder agrees with on the Acquired Companies’ United States Tax Returns);
(vii) the matters identified on Schedule 7.2(a)(vii); and
(viii) any claim for appraisal or dissenters’ rights, including any payment in respect to himself only, to indemnify, of Dissenting Shares in excess of the Per-Share Merger Consideration.
(b) Buyer shall indemnify and defend the Effective Time Holders and save and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") each of them harmless from an amount equal and against any Losses which the Effective Time Holders may suffer, sustain or become subject to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, with or arising out by virtue of (i) the failure any inaccuracy or breach of any representation or warranty made by any Stockholder in of Buyer or Merger Sub under this Agreement, in any of the Transaction Documents Agreement or in any certificate Transaction Document delivered by Buyer or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct Merger Sub, in all respects cases without giving effect to any qualifications as of the date of this Agreement and as of the Closing Date (unless made as of another date)to materiality, material adverse effect or similar qualifications or (ii) any breach or alleged breach by any Stockholders non-fulfillment of any of their covenants covenant, agreement or agreements contained herein other provision by Buyer or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Merger Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in under this Agreement, any of the Transaction Documents, Schedules or any certificate delivered furnished by or on behalf of Buyer or Merger Sub pursuant to this Agreement Agreement.
(c) The Effective Time Holders shall not be liable to Buyer Indemnified Parties for any Loss pursuant to Section 7.2(a)(i) (other than with respect to Fundamental Representations) until Parent or Acquisition Sub have suffered the aggregate amount of all such Losses that the Effective Time Holders would, but for this clause, be liable exceeds $700,000 in the aggregate (the “Deductible”), in which case the Effective Time Holders shall be liable for all such Losses in excess of $200,000 in the aggregate Deductible. In addition, the Effective Time Holders shall not be liable to Buyer Indemnified Parties for any Loss pursuant to Section 7.2(a)(i) (after which the Stockholders shall be obligated other than with respect to indemnify Parent and Acquisition Sub from and against Losses only Fundamental Representations) to the extent they exceed the aggregate amount of all Losses previously indemnified by the Effective Time Holders pursuant to Section 7.2(a)(i) (other than with respect to Fundamental Representations) exceeds $200,00014 million (the “Cap”); . Notwithstanding anything to the contrary contained herein, the Deductible and the Cap shall not apply with respect to any Loss arising from or related to (and such Loss shall not be counted toward the Cap) (1) fraud, (2) breaches or inaccuracies of the Fundamental Representations, or (3) the matters set forth in Section 7.2(a)(ii) through (viii). Absent a claim for fraud, each Effective Time Holder’s maximum liability pursuant to this ARTICLE VII shall be limited to an amount equal to such Effective Time Holder’s Pro Rata Share multiplied by the sum of $140 million plus the amount of any Earn-Out earned pursuant to Section 1.17.
(d) Buyer shall not be liable to the Effective Time Holders for any Loss pursuant to Section 7.2(b)(i) (other than with respect to Fundamental Representations) until the aggregate amount to of all such Losses that Buyer would, but for this clause, be payable liable exceeds the Deductible, in which case Buyer shall be liable for all such Losses in excess of the Deductible. In addition, Buyer shall not be liable to the Indemnitees Effective Time Holders for any Loss pursuant to Section 7.2(b)(i) (other than with respect to Fundamental Representations) to the extent the aggregate amount of all Losses previously indemnified by Buyer pursuant to Section 7.2(b)(i) (other than with respect to Fundamental Representations) exceeds the Stockholders Cap. Notwithstanding anything to the contrary contained herein, the Deductible and the Cap shall not apply with respect to any Loss arising from or related to (and such Loss shall not be counted toward the Cap) (1) fraud, (2) breaches or inaccuracies of the Fundamental Representations, or (3) the matters set forth in Section 7.2(b)(ii). Absent a claim for claims of fraud, Buyer’s maximum liability pursuant to this ARTICLE VII shall be limited to an amount equal to the Final Merger Consideration.
(e) Each Person entitled to indemnification under this Section 8.2(a) shall not exceed an 7.2 acknowledges that it has a duty to take commercially reasonable steps required by applicable Law to mitigate all Losses after becoming aware of any event which gives rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith. The amount equal of any Loss subject to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a7.2(a) or Section 7.2(b) shall be paid by delivery calculated net of shares of Parent Common Stock any insurance proceeds actually recovered by the Escrow Agent pursuant Indemnitee, net of any retropremiums and costs of recovery actually incurred by the Indemnitee in procuring such proceeds or recovery, if any. In the event that an insurance recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the terms aggregate amount of such recovery, up to the Escrow Agreement and amount indemnified, shall be borne pro rata made promptly to the Indemnitor, net of any retropremiums and costs of recovery actually incurred following the Closing by the Stockholders,Indemnitee in procuring such proceeds, if any.
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the other provisions of this Article 9, agrees jointly and each Company Equityholder shall (severally, with based on each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to Company Equityholder’s Percentage Interests) indemnify, defend (subject to Section 9.3) and hold Parent and Acquisition Sub and each of Parent, Merger Sub, the Surviving Entity and/or their respective officers, directors, employees, Affiliates and and/or agents (collectively, the "Indemnitees"each a “Purchaser Indemnitee”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all any damages, losses, liabilities, obligations, actions, proceedings, claims of any kind, interest interest, costs or expenses (including, without limitation, reasonable attorneys' ’ fees and expenses) ("Loss"), except and other costs or expenses incurred in the collection of any judgments with respect to failures of representations and warranties and breaches of covenants actions, proceedings or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, claims) (each a “Loss”) suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure any breach of any representation or warranty made by any Stockholder the Company (A) contained in this Agreement, in any of the Transaction Documents Article 4 or (B) in any certificate or other instrument or document provided delivered by the Company to Parent or Acquisition and Merger Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another dateSection 7.2(d), or (ii) any breach or alleged breach by any Stockholders the Company of any of their the covenants or agreements contained herein which are to be performed by the Company on or thereinbefore the Closing Date, and (iii) the exercise of appraisal rights by the holders of the Dissenting Shares (it being understood that such Losses shall be the difference between the appraised value of the Dissenting Shares and the Per Share Common Payment applicable to such shares plus any other reasonable costs or expenses incurred in connection therewith).
(b) Subject to the other provisions of this Article 9, each of Parent and the Surviving Entity agree to indemnify, defend (subject to Section 9.3) and hold the Company Equityholders and their respective Affiliates, officers, directors, employees and agents (each a “Company Indemnitee”) harmless from any Loss suffered or paid, directly or indirectly, as a result of, in each caseconnection with, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the of (i) any breach of any such surviving representation or warranty made by Parent or Merger Sub (A) contained in Article 5 or (B) in any certificate delivered to the Company or the Representative pursuant to Section 7.3(c), (ii) any breach by Parent of any of its covenants or agreements contained herein and (iii) any breach by the Surviving Entity (including, without limitation, by way of being the successor of Merger Sub and the Company) of any of its covenants or agreements contained herein which are to be performed by the Surviving Entity after the Closing Date (except to the extent the Purchaser Indemnitees are entitled to indemnification under Section 9.2(a) and except if the applicable Company Indemnitees are not third party beneficiaries of such covenant or agreement contained herein).
(c) The obligations to indemnify and hold harmless pursuant to this Section 9.2 shall survive the consummation of the Stockholders contained transactions contemplated hereby for the applicable period set forth in Section 9.1, except for claims for indemnification asserted prior to the end of such applicable period (which claims shall survive until final resolution thereof).
(d) The rights of the Purchaser Indemnitees to indemnification pursuant to the provisions of Section 9.2(a), and the rights of Company Indemnitees to indemnification pursuant to the provisions of Section 9.2(b), shall not be affected by (i) in the case of Purchaser Indemnitees, any Purchaser Indemnitees’ knowledge at or prior to the execution of this Agreement or at or prior to the Closing of any breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, any of the Transaction Documents, Agreement or in any certificate delivered pursuant to this Agreement until and (ii) in the case of Company Indemnitees, any Company Indemnitees’ knowledge at or prior to the execution of this Agreement or at or prior to the Closing of any breach of any representation, warranty, covenant or agreement made by Parent or Acquisition Merger Sub have suffered Losses in excess of $200,000 this Agreement or in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent any certificate delivered pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Genpact LTD)
General Indemnification. (a) Each StockholderSubject to the limitations in Section 7.2(c) and Section 7.6, agrees the Seller and Founder shall, jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent harmless Buyer and Acquisition Sub and their respective its directors, officers, directorsAffiliates, employees, Affiliates agents and agents (collectivelyrepresentatives, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of against all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, any of them in connection with, with or arising out resulting from each of the following:
(i) the failure of any misrepresentation or breach of, or inaccuracy in, any representation or warranty made by any Stockholder Seller or Founder in this Agreement or any Ancillary Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or ;
(ii) any breach or alleged breach by any Stockholders of any of their covenants covenant made by Seller or agreements contained herein Founder in this Agreement or thereinany Ancillary Agreement;
(iii) any Retained Liability;
(iv) any Transaction Expense; or
(v) any matters identified on Schedule 7.2(a)(v).
(b) Subject to the limitations in Section 7.2(c), in each caseBuyer shall indemnify, without giving effect to any "materiality"defend and hold harmless the Seller and Seller’s officers, "knowledge" or similar qualifications; providedAffiliates, howeveremployees, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub agents and representatives and Founder and Founder’s heirs, successors and assigns from and against all Losses that are incurred or suffered by any Loss of them in connection with or resulting fromfrom each of the following:
(i) any misrepresentation or breach of, or inaccuracy in, any representation or warranty made by Buyer in this Agreement or any Ancillary Agreement;
(ii) any breach of any covenant made by Buyer in this Agreement or any Ancillary Agreement; or
(iii) any Assumed Liability; provided that there shall be no indemnification under this Section 7.2(b) for any Losses against which Buyer is entitled to indemnification pursuant to Section 7.2(a).
(c) Notwithstanding the foregoing and subject to the proviso at the end of this paragraph and the terms of this Article VII, (i) Seller shall not be obligated to provide any indemnification for Losses pursuant to claims (other than Third Party Claims) for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i) unless the aggregate amount of Losses incurred by Buyer with respect to such breaches of representations and warranties exceeds $100,000 (the “Basket”), in which case Seller will be liable for all Losses in excess of the Basket, and (ii) Buyer shall not be obligated to provide any such indemnification for Losses pursuant to claims (other than Third Party Claims) for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), unless the aggregate amount of Losses incurred by Seller with respect to such breaches of representations and warranties exceeds the Basket, in which case Buyer will be liable for all Losses in excess of the Basket. Subject to Section 7.8, the maximum aggregate obligation of (i) Seller and Founder for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i), and (ii) Buyer for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed $1,500,000 (the “Cap”). Neither the Basket nor the Cap shall apply to Losses arising in respect of claims for misrepresentations and breach of the Fundamental Representations.
(d) In no event shall the limitations set forth in Section 7.2(c) apply to Losses suffered or incurred by any Indemnified Party as a result of or arising out of, relating to, (A) the matters set forth in the nature ofSections 7.2(a)(ii) through 7.2(a)(v), or caused 7.2(b)(ii) or 7.2(b)(iii), or (B) any fraud or intentional misrepresentation by a party. Notwithstanding the foregoing, the covenants of Seller and Founder set forth in Section 5.5(a) are expressly excluded from the de-limitation as to Section 7.2(a)(ii). For the avoidance of doubt, the parties acknowledge and agree that the limitations set forth in Section 7.2(c) shall apply with respect to the covenants set forth in Section 5.5(a).
(e) For purposes of calculating the amount of any Losses incurred in connection with any such misrepresentation or breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreementwarranty, any of the Transaction Documents, and all references to material or any certificate delivered pursuant to this Agreement until Parent Material Adverse Effect (or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(aother correlative terms) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,disregarded.
Appears in 1 contract
General Indemnification. Lessee agrees, whether or not any of the transactions contemplated hereby shall be consummated, to assume liability for, and to indemnify, protect, defend, save and keep harmless each Indemnitee, on an After-Tax Basis, from and against, any and all Claims that may be imposed on, incurred by or asserted against any Indemnitee, whether or not such Indemnitee shall also be indemnified as to any such Claim by any other Person and whether or not such Claim arises or accrues prior to the date of this Agreement, in any way relating to or arising out of (a) Each Stockholderthe Properties or any part thereof, agrees jointly and severallythe design, construction, inspection, purchase, ownership, acquisition, acceptance, rejection, delivery, nondelivery, possession, transportation, lease, sublease, mortgaging, granting of a security interest in, preparation, installation, condition, transfer of title, rental, use, nonuse, occupancy, operation, management, storage, maintenance, modification, alteration, repair, rebuilding, assembly, sale, return, abandonment or other application or disposition of all or any part of the Properties, including without limitation (i) claims or penalties arising from any violation of law or liability in tort (strict or otherwise), (ii) loss of or damage to any property or death or injury to any Person, (iii) latent, patent, hidden or other defects, whether or not discoverable, and (iv) any claim for patent, trademark or copyright infringement, (b) the Operative Documents or any of them (other than the Trust Agreement, the Debt Documents and the Residual Value Insurance policy) and the Overall Transaction (other than to the extent related to the Trust Agreement, the Debt Documents and the Residual Value Insurance policy) or any modification, waiver, amendment or supplement thereto required by the terms of the Operative Documents (other than the Trust Agreement, the Debt Documents and the Residual Value Insurance policy) or requested by the Lessee or any breach or violation thereof by the Lessee, payments made pursuant to any thereof or the enforcement by any Indemnitee of any of its rights under the Operative Documents against the Lessee, (c) the non-compliance with each Applicable Laws and Regulations (including without limitation because of the existence of the Permitted Liens) of any Property, (d) whether or not such Claim arises or accrues prior to the date of this Agreement, any Claim or Environmental Damages relating to or arising out of or in connection with any matter relating to the Properties, including, without limitation, the Lessee's breach of its representations, warranties, covenants and obligations in this Agreement, the Lease, any FMV Lease or any other StockholderOperative Documents, except prior to or during the Lease Term or the FMV Lease Term, as the case may be, at, on or under the Properties, (e) an inaccuracy of any representation or a breach of any warranty or covenant made by the Lessee in this Agreement or another Operative Document or (f) any Redemption Premium due as a result of the termination of the Lease; provided, however, that Lessee shall not be required to indemnify any Indemnitee under this Section 8.1 for any of the following:
(1) any Claim to the extent attributable to loss or liability arising from acts or events with respect to a Property which occur after such Property has been returned to Lessor after termination or expiration of the Lease or FMV Lease (if later) with respect to such Property (I) unless such Property was returned to Lessor as a result of the exercise of remedies as a result of a Lease Event of Default, in which case such indemnity shall continue as long as such Lease Event of Default is continuing and (II) except to the extent such loss or liability arose because of (A) a breach by the Lessee of the Lease or an FMV Lease, including covenants which expressly provide for performance by Lessee after termination or expiration of the Lease or FMV Lease (if later) and including the return provisions of Article 12 of the Lease or of an FMV Lease, as the case may be, or (B) any personal injury which occurred prior to such return (it being agreed that a Bank Branch Property or any Property subject to a Partial Occupancy Lease shall be deemed to be returned to Lessor for purposes of this Article VIII when such Bank Branch Lease or Partial Occupancy Lease, as the case may be, commences),
(2) any Claim to the extent resulting from the willful misconduct or gross negligence of such Indemnitee or its Indemnitee Group,
(3) any Transaction Cost or any other expense expressly provided under any of the Operative Documents to be paid or borne by a party other than the Lessee,
(4) any Claim to the extent resulting from a transfer by such Indemnitee or its Indemnitee Group of all or part of its interest in the Lease, an FMV Lease, the other Operative Documents or a Property or any interest therein (including without limitation any expenses of the character referred to in Section 7.4(c)(xii) or Section 7.4(d)(x) hereof,) other than (x) while a Lease Event of Default shall have occurred and be continuing or (y) a transfer required by the Operative Documents,
(5) any Claim to the extent resulting from a breach or violation by such Indemnitee or its Indemnitee Group of any of its representations, warranties or covenants in any of the Operative Documents or from a violation of Applicable Laws and covenants that are made by or agreed to Regulations by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest Indemnitee or expenses its Indemnitee Group (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"any such breach, misrepresentation relating to, or violation of, ERISA or any related provisions of the Code), except with respect to failures unless such breach, misrepresentation or violation is the result of representations and warranties and breaches of covenants a misrepresentation or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by the Lessee or any Stockholders other party to an Operative Document (other than such Indemnitee or any member of its Indemnitee Group) of any of their covenants respective obligations under any Operative Document to which it is a party or agreements contained herein or therein, in each case, without giving effect as it relates to any "materiality"violation of Applicable Laws and Regulations, "if such violation is attributable to the business or activities of the Lessee or the nature, design, engineering, use, repair, construction or location of any of the Properties,
(6) any Claims in respect of Taxes, other than a payment necessary to make payments under this Section 8.1 on an After-Tax Basis,
(7) any Claim to the extent resulting from any amendment to any Operative Document which is not required by the terms of the Operative Documents, expressly consented to by the Lessee or made at the request of the Lessee,
(8) any Claim for losses by an Indemnitee or its Indemnitee Group (x) based on its inability to invest in another transaction or use for any other purpose the funds invested in connection with the transactions contemplated hereby or (y) for which a payment of Stipulated Loss Value paid by the Lessee in accordance with the terms of the Operative Documents is intended, as calculated, to compensate such Indemnitee, provided that this clause (8) shall only be construed to limit Lessee's obligations under this Section 8.1 and not otherwise to limit any damages which any Indemnitee may be entitled to recover under Applicable Laws and Regulations for any breach of any of the Operative Documents,
(9) any Claim to the extent arising as a result of any Event of Default or Default which is not also a Lease Event of Default or Lease Default,
(10) any Claim to the extent arising from any failure on the part of the Indenture Trustee, the Pass Through Trustee or Lessor to distribute funds in accordance with the Operative Documents, provided that the Lessee shall have made payment of such funds to the Indenture Trustee or Lessor, as the case may be, to the extent and in the manner required under the Operative Documents,
(11) overhead expenses incurred by an Indemnitee,
(12) with respect to the Indenture Trustee, any failure of the Indenture Trustee to be properly qualified (or to have properly appointed a co-trustee) for such roles in the jurisdictions where the Properties are located, or
(13) any Claim to the extent arising out of the Trust Agreement, the Debt Documents or the Residual Value Insurance policy, except for the obligation of the Lessee to pay Redemption Premium as a result of the termination of the Lease, provided that this Clause (13) shall not affect the rights of the Residual Value Insurer as an assignee of the rights of any Indemnitee if there shall have been any such assignment. Lessee shall be entitled to credit against any payments due under this Section 8.1 any insurance recoveries received by the Indemnitee in respect of the related Claim under or from insurance paid for by the Lessee or assigned to such Indemnitee by the Lessee. If the Lessee shall obtain knowledge of any Claim indemnified against under this Section 8.1, the Lessee shall give prompt notice thereof to the appropriate Principal Indemnitee or Principal Indemnitees, and if any Indemnitee shall obtain any such knowledge" , the related Principal Indemnitee shall give prompt notice thereof to Lessee, provided that failure to so notify Lessee shall not release Lessee from any of its obligations to indemnify hereunder except if such failure shall have precluded Lessee from contesting such Claim or similar qualificationssuch failure shall result in an increased Claim, but only to the extent of such increase. With respect to any amount that Lessee is requested by a Principal Indemnitee to pay by reason of this Section 8.1, such Principal Indemnitee shall, if so requested by the Lessee, at the Lessee's expense, and prior to any payment, submit such additional information to the Lessee as the Lessee may reasonably request and which is reasonably available to such Principal Indemnitee or its Indemnitee Group to substantiate properly the requested payment. In case any action, suit or proceeding shall be brought against any Indemnitee, the related Principal Indemnitee shall notify Lessee of the commencement thereof, and Lessee or its insurer shall be entitled, at Lessee's expense, acting through counsel reasonably acceptable to such Principal Indemnitee, to participate in, and, to the extent that the Lessee or its insurer desires to, assume and control the defense thereof; provided, however, that (1) the Stockholders Lessee shall not have any obligation be entitled to indemnify Parent or Acquisition Sub from assume and against any Loss resulting from, arising out of, relating to, in control the nature of, or caused by the breach defense of any such surviving representation action, suit or warranty proceeding if, and only for so long as, (i) a Lease Event of Default or covenant (ii) a Lease Default under Section 18(e) of the Stockholders Lease or any FMV Lease has occurred and is continuing; and provided further that if and to the extent such action, suit or proceeding includes a claim that the Indemnitee is guilty of criminal misconduct or involves the Lessee in a material conflict of interest as determined in accordance with then prevailing standards of professional conduct, or the Lessee has not acknowledged in writing to such Indemnitee that the Lessee is obligated to indemnify such Indemnitee with respect to such Claim under this Section 8.1, the Principal Indemnitee may at its election engage a second legal counsel to represent such Indemnitee in such action, suit or proceeding and the reasonable fees and expenses of which will be paid by the Lessee if such counsel is reasonably acceptable to the Lessee and the Lessee retains control of such action, suit or proceeding; provided that the Principal Indemnitee shall assume control of all matters relating to the Principal Indemnitee and its Indemnitee Group. The Principal Indemnitee may participate in a reasonable manner at its own expense and with its own counsel in any proceeding conducted by the Lessee in accordance with the foregoing. Each Principal Indemnitee shall at Lessee's expense supply Lessee with such information and documents reasonably requested by the Lessee as are necessary or advisable for the Lessee to participate in any action, suit or proceeding to the extent permitted by this Section 8.1. Unless a Lease Event of Default shall have occurred and be continuing, no Indemnitee shall enter into any settlement or other compromise with respect to any Claim which is entitled to be indemnified under this Section 8.1 without the prior written consent of the Lessee, which consent shall not be unreasonably withheld, unless such Indemnitee waives its right to be indemnified under this Section 8.1 with respect to such Claim. Upon payment in full of any Claim by the Lessee pursuant to this Section 8.1 to or on behalf of an Indemnitee, the Lessee, without any further action, shall be subrogated to any and all claims that such Indemnitee may have relating thereto (other than claims in respect of insurance policies maintained by such Indemnitee at its own expense), and the related Principal Indemnitee shall at the Lessee's expense cause such Indemnitee to execute such instruments of assignment and conveyance, evidence of claims and payment and such other documents, instruments and agreements as may be necessary to preserve any such claims and otherwise cooperate with Lessee and give such further assurances as are necessary or advisable to enable Lessee vigorously to pursue such claims. Lessee shall not enter into any settlement or other compromise with respect to any Claim against any Indemnitee without the prior written consent of the related Principal Indemnitee unless the Lessee has acknowledged in a writing satisfactory to such Principal Indemnitee such Indemnitee's right to full indemnification hereunder with respect to such Claim. Any amount payable to an Indemnitee pursuant to this Section 8.1 shall be paid to such Indemnitee promptly upon receipt of a written demand therefor from the related Principal Indemnitee, accompanied by a written statement describing the basis for such indemnity and the computation of the amount so payable and, if requested by the Lessee, such determination shall be verified by a nationally recognized independent accounting firm mutually acceptable to Lessee and the Principal Indemnitee at the Lessee's expense. Nothing in this Section 8.1 shall be construed as a guaranty by the Lessee of any residual value in the Properties or as a guaranty of the Notes. The indemnities contained in this Article VIII shall survive the expiration or earlier termination of the Lease or any FMV Lease, as applicable, and any assumption of the Notes by the Lessee in accordance with Section 10.1 hereof.
1. If an Indemnitee is not a party to this Agreement, any of the Transaction DocumentsLessee may require such Indemnitee to agree in writing, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only a form reasonably acceptable to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant Lessee, to the terms of this Article VIII prior to making any payment to such Indemnitee under this Article VIII. Should an Indemnitee receive any refund, in whole or in part, with respect to any Claim paid by the Escrow Agreement Lessee hereunder, it shall promptly pay the amount refunded (but not an amount in excess of the amount the Lessee or any of its insurers has paid in respect of such Claim) over to the Lessee unless a Special Default or a Lease Event of Default shall have occurred and be continuing in which case the amount refunded shall be borne pro rata held by the Stockholders,related Principal Indemnitee as security for the obligations of the Lessee under the Operative Documents.
Appears in 1 contract
Samples: Participation Agreement (American Financial Realty Trust)
General Indemnification. (a) Each StockholderThe Company and each Partner shall indemnify and defend Buyer and its directors, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub and their respective officers, directorsaffiliates, employees, Affiliates agents and agents (collectivelyrepresentatives, the "Indemnitees") and shall hold each of them harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of against all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements Losses that are made incurred or suffered by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, any of them in connection with, with or arising out of resulting from:
(i) any misrepresentation or breach of, or inaccuracy in, any representation or warranty made by any Partner or the failure Company in this Agreement, any Ancillary Agreement or any schedule or Disclosure Schedule furnished or to be furnished to Buyer in connection with or as contemplated by this Agreement;
(ii) any breach of any covenant made by the Company or any Partner in this Agreement, any Ancillary Agreement or any schedule or Disclosure Schedule furnished or to be furnished to Buyer in connection with or as contemplated by this Agreement;
(iii) any Excluded Liability; and
(iv) the enforcement by Buyer of its indemnification rights under this Agreement.
(b) Parent and Buyer shall jointly and severally indemnify each Partner, the Company and its officers, affiliates, employees, agents and representatives, and shall hold each of them harmless from and against all Losses that are incurred or suffered by any of them in connection with or resulting from:
(i) any misrepresentation or breach of any representation or warranty made by any Stockholder Buyer in this Agreement, in any of the Transaction Documents Ancillary Agreement or in any certificate schedule furnished or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct furnished to the Company or any Partner in all respects connection with or as of the date of contemplated by this Agreement and as of the Closing Date (unless made as of another date), or Agreement;
(ii) any breach or alleged breach by any Stockholders of any covenant made by Buyer in this Agreement, any Ancillary Agreement or any schedule furnished or to be furnished to the Company or any Partner in connection with or as contemplated by this Agreement;
(iii) the Assumed Liabilities; provided that there shall be no indemnification under this Section 10.2(b) for any Losses against which Buyer is entitled to indemnification pursuant to Section 10.2(a); and
(iv) the enforcement by the Company and the Partners of their covenants or agreements contained herein or thereinindemnification rights under this Agreement.
(c) Notwithstanding the foregoing, (i) the Partners and the Company shall not be obligated to provide any such indemnification for Losses pursuant to claims (other than Third Party Claims, as hereinafter defined) for breaches of representations and warranties under Section 10.2(a)(i) hereof unless the aggregate amount of Losses incurred by Buyer exceeds Four Hundred Thousand Dollars ($400,000) (the “Threshold”), in each casewhich case the Partners and the Company will be liable for the full amount of such Losses without regard to the Threshold and (ii) Buyer shall not be obligated to provide any such indemnification for Losses pursuant to claims (other than Third Party Claims) for breaches of representations and warranties under Section 10.2(b)(i) hereof, unless the aggregate amount of Losses incurred by the Partners and the Company exceeds the Threshold, in which case Buyer will be liable for the full amount of such Losses without giving effect regard to any "materiality"the Threshold. The maximum aggregate obligation of (i) the Partners and the Company hereunder for Losses pursuant to claims for breaches of representations and warranties under Section 10.2(a)(i) hereof and (ii) Buyer hereunder for Losses pursuant to claims for breaches of representations and warranties under Section 10.2(b)(i) hereof, "knowledge" or similar qualificationsshall not exceed Twelve Million Dollars ($12,000,000) (the “Maximum”); provided, however, that the limitations in this paragraph shall not apply to Losses arising in respect of claims for misrepresentations and breach of warranties relating to Sections 3.1 and 4.1 hereof (Organization), Sections 3.2 and 4.2 hereof (Authority), Section 3.5 (Subsidiaries), or Section 3.8(a) (Title), all of which may be asserted without limitation. Each Partner’s indemnification obligation under this Section 10.2 shall be limited to one-third (1/3) of the applicable Loss. No limitation or condition of liability provided in this Article X shall apply to fraud or intentional misrepresentation. For purposes of determining the existence of any misrepresentation, breach of warranty, or nonfulfillment of any covenant or agreement, and calculating the amount of any Losses incurred in connection with any such misrepresentation, breach of warranty, or nonfulfillment of any covenant or agreement, any and all references to material or Material Adverse Effect (or other correlative terms) shall be disregarded.
(d) (i) A party entitled to indemnification hereunder shall herein be referred to as an “Indemnitee.” A party obligated to indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.” As soon as is reasonable after an Indemnitee either (a) receives notice of any claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder (a “Third Party Claim”) or (b) sustains any Loss not involving a Third Party Claim or action which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under this Article X, notify such Indemnitor in writing of such claim, action or Loss, as the case may be; provided, however, that failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the extent Indemnitor is actually prejudiced in its defense of the action by such failure. Any such notification must be in writing and must state in reasonable detail the nature and basis of the claim, action or Loss, to the extent known. Except as provided in this Section 10.2, Indemnitor shall have the right using counsel acceptable to the Indemnitee, to contest, defend, litigate or settle any such Third Party Claim which involves (and continues to involve) solely monetary damages; provided that the Indemnitor shall have notified the Indemnitee in writing of its intention to do so within fifteen (15) days of the Indemnitee having given notice of the Third Party Claim to the Indemnitor and; provided, further, that (1) the Stockholders Indemnitor expressly agrees in such notice to the Indemnitee that, as between the Indemnitor and the Indemnitee, the Indemnitor shall not have be solely obligated to fully satisfy and discharge the Third Party Claim notwithstanding any obligation limitation with respect to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained indemnification included in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to Third Party Claim is not, in the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent reasonable judgment of the Acquisition PriceIndemnitee, likely to result in Losses that will exceed the Maximum; and (3) all amounts payable if reasonably requested to do so by the Indemnitee, the Indemnitor shall have made reasonably adequate provision to ensure the Indemnitee of the financial ability of the Indemnitor to satisfy the full amount of any adverse monetary judgment that may result from such third party claim; (4) assumption by the Indemnitor of such Third Party Claim could not reasonably be expected to cause a material adverse effect on the Indemnitee’s business and (5) the Indemnitor shall diligently contest the Third Party Claim (the conditions set forth in clauses (1), (2), (3), (4) and (5) being collectively referred to as the “Litigation Conditions”). The Indemnitee shall have the right to participate in, and to be represented by counsel (at its own expense) in any such contest, defense, litigation or settlement conducted by the Indemnitor; provided, that the Indemnitee shall be entitled to reimbursement therefor if the Indemnitor shall lose its right to contest, defend, litigate and settle the Third Party Claim. The Indemnitor shall not be entitled, or shall lose its right, to contest, defend, litigate and settle the Third Party Claim if the Indemnitee shall give written notice to the Indemnitees by Indemnitor of any objection thereto based upon the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,Litigation Conditions.
Appears in 1 contract
General Indemnification. (a) Each StockholderAs an inducement to Buyer and Merger Sub to enter into this Agreement, agrees jointly and severallyacknowledging that Buyer and Merger Sub are relying on the indemnification provided in this Section 11.2 in executing and performing this Agreement, the Equity Holders, by their acceptance of Merger Consideration pursuant to this Agreement, shall be deemed to have authorized the Representative to act on behalf of the Equity Holders in connection with all matters relating to this Agreement, the Escrow Agreement and the Environmental Escrow Agreement, including, without limitation, the Indemnity Escrow Account, the Purchase Price Adjustment Escrow Account, and the Environmental Escrow Account.
(b) Subject to Sections 11.3 and 11.4 below, after the Closing each other Stockholderof Buyer, except with respect to representations, warranties the Surviving Corporation and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold Parent and Acquisition Sub its Subsidiaries and their respective officers, directors, employees, Affiliates employees and agents successors and assigns (collectively, the "IndemniteesBuyer Indemnified Parties") shall be indemnified and held harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of in any kind, interest or expenses (includingevent, without limitation, reasonable attorneys' fees and expensesduplication) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising solely out of the Indemnity Escrow Account from and against:
(i) subject to Section 11.1, any and all Losses resulting from, arising from, relating to or constituting the failure of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents or Company set forth in any certificate or Article IV (other instrument or document provided than those representations and warranties relating to Parent or Acquisition Sub pursuant to this Agreement Taxes), to be true and correct in all respects as of the date made; and
(ii) any and all Losses resulting from, arising from, relating to or constituting the breach of any covenant or other agreement (other than those covenants or other agreements relating to Taxes) on the part of the Company under this Agreement.
(c) Subject to Sections 11.3 and 11.4 below, after the Closing each of the Buyer Indemnified Parties shall be indemnified and held harmless (in any event, without duplication) solely out of the Indemnity Escrow Account from and against any and all Losses arising out of or attributable to (i) any misrepresentation, inaccuracy or breach of any representation, warranty, covenant, agreement or promise related to Taxes by the Company contained in this Agreement and as of the Closing Date (unless made as of another date), or (ii) any breach Liability of the Company or alleged breach by any Stockholders of any of their covenants its Tax Affiliates with respect to Taxes for any Tax Period, or agreements contained herein portion thereof, ending on or thereinbefore the Closing Date, in each caseincluding, without giving effect to limitation any "materiality", "knowledge" or similar qualificationsInterim Period; provided, howeverthat the Losses shall be reduced (but not below zero) to the extent reserved in the Closing Balance Sheet; and provided, further, that a valuation allowance or reserve with respect to net operating losses, Tax basis of assets and other similar Tax attributes shall not be considered a reserve on the Closing Balance Sheet for this purpose.
(1d) Notwithstanding any provision in this Agreement to the contrary:
(i) the Stockholders Buyer Indemnified Parties shall not be indemnified under Section 11.2(c) with respect to any Losses or Taxes for any Taxable Period that begins after the Closing Date, including without limitation, the portion of any Straddle Period that begins after the Closing Date; and
(ii) the Buyer Indemnified Parties shall not be indemnified under Section 11.2(c) with respect to any Losses or Taxes that would not have been generated but for any obligation election made by the Buyer under Section 338(g) of the Code with respect to the Company and one or more Tax Affiliates.
(e) Subject to Sections 11.3 and 11.4 below, Buyer and the Surviving Corporation hereby, jointly and severally, agree to indemnify Parent or Acquisition Sub and hold the Equity Holders and the Representative and their respective officers, directors, employees and successors and assigns (collectively, the "Equity Holders Indemnified Parties") harmless from and against against:
(i) subject to Section 11.1, any Loss and all Losses resulting from, arising out offrom, relating toto or constituting the failure of any representation or warranty of Buyer or Merger Sub set forth in Article V to be true and correct as of the date made; and
(ii) any and all Losses resulting from, in the nature ofarising from, relating to or caused by constituting the breach of any such surviving representation covenant or warranty other agreement on the part of Buyer or covenant of the Stockholders contained in Merger Sub under this Agreement, .
(f) Notice of all claims made by any of the Transaction Documents, or any certificate delivered Buyer Indemnified Party pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders Article XI shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only given exclusively to the extent they exceed $200,000); (2) Representative, not in its personal capacity, but solely in its capacity as the aggregate amount representative of the Equity Holders, and the Representative shall have full and exclusive power and authority to be payable represent the interests of the Equity Holders in respect of such claims. Notwithstanding anything contained herein to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) contrary, no Buyer Indemnified Party shall not exceed an amount equal be entitled to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims make any claim for indemnification under this Article XI against the Representative or any Equity Holder.
(g) To the extent that Buyer, the Surviving Corporation or any Subsidiary suffers any Losses for which it is entitled to be indemnified under Section 8.2(a11.2(a), then (without limiting any of the rights of the Surviving Corporation or such Subsidiary as a Buyer Indemnified Party, but in any event without duplication) Buyer shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant entitled to the terms make an indemnification claim for such Losses on behalf of the Escrow Agreement and shall be borne pro rata by the Stockholders,Surviving Corporation or such Subsidiary.
Appears in 1 contract
General Indemnification. (a) Each StockholderCannabist and the Member, agrees jointly on a joint and severallyseveral basis, with each other Stockholder, except with respect to representations, warranties shall indemnify the Buyer Indemnified Parties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend save and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") each of them harmless from an amount equal and against, and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses which any such Buyer Indemnified Party may suffer, sustain or become subject to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, arising from, in connection with, by virtue of or arising out of related to (i) the failure any breach or inaccuracy of any representation or warranty made by any Stockholder the Cannabist, the Company or the Member in this Agreement, in any of the Transaction Documents including Article III, or in any certificate furnished by or other instrument on behalf of the Company or document provided to Parent or Acquisition Sub the Member pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date)Agreement, or (ii) any breach or alleged breach by any Stockholders non-fulfillment of any covenant, agreement or other provision by Cannabist, the Company or the Member under this Agreement, (iii) any Transaction Expenses to the extent not included in Final Transaction Expenses, (iv) any Transaction Payments to the extent not included in Final Transaction Payments, (v) any Indebtedness to the extent not included FH12251261.5 in Final Indebtedness, (vi) any Buyer Tax Losses, (vii) any information, calculation or determination set forth in the Funds Flow or instructions provided by Cannabist or the Company with respect to the payment of their covenants the Deposit, Purchase Price or agreements contained any alleged inaccuracy, discrepancy or impropriety with respect to any of the foregoing, (viii) Cannabist’s or its Affiliates Indebtedness, including the Notes, and (ix) the Master Lease Agreement, to the extent not assigned to the Company pursuant to Section 2.5(b)(xx). Notwithstanding anything herein to the contrary, for purposes of determining whether there has been a breach or thereininaccuracy of any representation or warranty and determining the amount of any Losses that are the subject matter of any indemnification claim hereunder, each representation and warranty in each case, this Agreement shall be read without giving effect to any "qualification or limitation as to materiality", "knowledge" Material Adverse Effect or words of similar qualificationsimport contained in any such representation or warranty. Buyer shall indemnify the Member and save and hold the Member harmless from and against, and pay on behalf of or reimburse the Member for any and all Losses which the Member may suffer, sustain or become subject to as a result of, arising from, in connection with, by virtue of or related to (A) any breach or inaccuracy of any representation or warranty made by Buyer in this Agreement, including Article IV, or in any certificate furnished by or on behalf of Buyer pursuant to this Agreement, and (B) any breach or non-fulfillment of any covenant, agreement or other provision by Buyer under this Agreement.
(b) Cannabist and the Member shall not be liable to the Buyer Indemnified Parties for any Loss (i) pursuant to Section 6.2(a)(i) (other than with respect to the Fundamental Representations) until the aggregate amount of all Losses that Cannabist and the Member would, but for this clause (i), be liable for exceeds $10,000 in the aggregate (the “Basket Amount”); provided, however, that Cannabist and the Member shall then be liable for the full amount of such Losses back to dollar one; or (1ii) to the Stockholders extent the aggregate amount of all Losses previously indemnified by Cannabist and the Member pursuant to Section 6.2(a)(i) exceeds $11,879,518.80 (the “Cap”). Buyer shall not have any obligation be liable to indemnify Parent or Acquisition Sub from and against the Member for any Loss resulting from(A) pursuant to Section 6.2(a)(A) until the aggregate amount of all Losses that the Buyer would, but for this clause (A), be liable for exceeds the Basket Amount; provided, however, that Buyer shall then be liable for the full amount of such Losses back to dollar one; or (B) to the extent the aggregate amount of all Losses previously indemnified by Buyer pursuant to Section 6.2(a)(A) exceeds the Cap. Notwithstanding anything to the contrary contained herein, the Basket Amount and the Cap shall not apply with respect to any Loss arising out of, relating to, in from (and such Loss shall not be counted toward the nature of, Cap) fraud or caused by intentional misrepresentation.
(c) Any Losses for which the breach Buyer Indemnified Parties are entitled to indemnification pursuant to Section 6.2(a) shall be satisfied pursuant to Section 6.2(e).
(d) No Party shall be entitled to a rescission of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, Agreement (or any certificate delivered related agreements).
(e) Any payment to be made by Cannabist or the Member with respect to any indemnification obligations for Losses pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses Article VI shall be satisfied, in excess of $200,000 FH12251261.5 Xxxxx’s sole discretion, (i) by deducting such amount from the amount due to CC VA under the Promissory Note in the aggregate order of interest due and owing and then in the order of maturities, (after which ii) directly against Cannabist and the Stockholders shall be obligated to indemnify Parent Member on a joint and Acquisition Sub from and against Losses only to several basis, or (iii) by any combination of the extent they exceed $200,000); (2) the aggregate amount foregoing. Any payments to be payable made by any Party pursuant to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) Article VI shall be paid by delivery wire transfer of shares immediately available funds within five calendar days after the determination of Parent Common Stock such payment obligation.
(f) The amount of any Loss for which indemnification is provided under this Article VI shall be net of any amounts actually received by the Escrow Agent pursuant indemnified Party as a result of such Loss under insurance policies or other third party sources of reimbursement or indemnification (with such amount, for the avoidance of doubt, reduced by any fees or expenses (including any payment with respect to attorneys’ fees and disbursements and/or any increase in insurance premiums) incurred in obtaining such recovery; provided, however, that in no event shall any indemnified Party be required to seek any recovery under any insurance policy or otherwise as a condition to receiving indemnification under this Article VI.
(g) No Party shall be entitled to double recovery for any adjustments to consideration provided for hereunder or for any indemnifiable Losses even though such Losses, or any other incident, may have result from the breach of more than one of the representations, warranties and covenants, or any other indemnity, under this Agreement or any related agreement.
(h) All indemnification payments under this Agreement shall be treated as adjustments to the terms of the Escrow Agreement and Purchase Price for all relevant Tax purposes.
(i) The procedure for indemnification shall be borne pro rata by the Stockholders,as set forth in this Section 6.2 and Section 6.4.
Appears in 1 contract
General Indemnification. (a) Each StockholderFrom and after the Closing, agrees jointly subject to the limitations and severallyother provisions set forth in this Article IX, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to Parent shall indemnify, defend and hold Parent and Acquisition Sub and their respective Buyer and/or its officers, directorsdirectors and/or Affiliates (each, employees, Affiliates a “Buyer Indemnitee” and agents (collectivelytogether, the "“Buyer Indemnitees"”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all against any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' ’ fees and expensesexpenses but excluding any punitive, exemplary, special, unforeseen or other consequential damages or any damages measured by lost profits or a multiple of earnings) ("“Loss"”) suffered, incurred or sustained by a Buyer Indemnitee or to which any of them becomes subject, resulting from, arising out of or relating to:
(i) the failure of any representation or warranty made by the Company or Parent in this Agreement to be true and correct as of the Closing Date (or as of the date made, where such representation or warranty relates to an earlier date); provided, that any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty;
(ii) Parent’s breach, non-fulfillment of or failure to perform any of its covenants or agreements contained herein which are to be performed in whole or in part after the Closing Date;
(iii) any outstanding obligations to any financial or other advisory (including law firms), except consultants or service provider retained by Parent or the Company in connection with the transactions contemplated by this Agreement;
(iv) any claim by any Person claiming to own any share capital of the Company or any of its Subsidiaries (other than with respect to failures of representations and warranties and breaches of covenants or agreements third party ownership interests in Subsidiaries that are made by or agreed to by such Stockholder individuallyspecifically disclosed in the Schedules);
(v) any Pending Action, other than with respect to which such Stockholder agrees up to indemnify $475,708 in payments made in connection with Priority 1 Air Rescue Services, Inc. et al. v. Evergreen Helicopters, Inc., Yamhill County Circuit Court, OR (Case No. 00XX00000);
(vi) any claim, liability, or obligation (including without limitation any liability under Environmental Laws) arising with respect to formerly owned real property that was never used in the Indemnitees Company’s or its Subsidiaries’ business, including the properties identified on Schedule 9.2(a)(vi);
(vii) any Pre-Closing Environmental Claims;
(viii) the Known Environmental Claims;
(ix) Parent’s breach, non-fulfillment of or failure to perform any of the Pre-Closing Covenants; and
(x) any claim by any Person arising with respect to or related to any actual or purported guarantee, accommodation obligation or any other similar obligation of the Company and/or its Subsidiaries for the benefit of any Restricted Party, whether pursuant to a Contract or otherwise.
(b) From and after the Closing, subject to the limitations and other provisions set forth in this Article IX, Buyer shall indemnify, defend and hold Parent and/or its officers, directors, and/or Affiliates (each, a “Seller Indemnitee” and together, the “Seller Indemnitees”) harmless from all Losses, suffered or paid, directly or indirectly, any Loss incurred by a Seller Indemnitee as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder Buyer or Guarantor in this Agreement, in any of the Transaction Documents or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made or as of another the date made, where such representation or warranty relates to an earlier date), or (ii) any breach by Buyer or alleged breach by any Stockholders Guarantor of any of their its covenants or agreements contained herein which are to be performed by Buyer or thereinGuarantor in whole or in part after the Closing Date, in each case, without giving effect or (iii) any outstanding obligations to any "materiality"financial or other advisory (including law firms), "knowledge" consultants or similar qualifications; providedservice provider retained by Buyer or Guarantor in connection with the transactions contemplated by this Agreement.
(c) Notwithstanding any other provisions set forth in Section 9.2, howeverany claim by a Buyer Indemnitee or Seller Indemnitee in respect of Taxes shall be addressed under Section 10.1 and not under Section 9.2(a) or Section 9.2(b).
(d) The Parties acknowledge and agree that, that (1) if the Stockholders shall not have Company or any obligation of its Subsidiaries suffers, incurs or otherwise becomes subject to indemnify Parent any Losses as a result of or Acquisition Sub from and against in connection with any Loss resulting from, arising out of, relating to, in the nature ofinaccuracy, or caused by the failure, breach or non-fulfillment of any such surviving representation representation, warranty, covenant or warranty or covenant agreement of the Stockholders contained in this AgreementCompany or Parent, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only except to the extent they exceed $200,000); (2) the aggregate amount such Losses first arising after Closing result from, arise out of or relate to be payable to the Indemnitees any action taken by the Stockholders for claims Company or any of indemnification under this Section 8.2(a) its Subsidiaries after the Closing, then Buyer and Buyer Indemnitees shall not exceed an amount equal to 25 percent also be deemed, by virtue of Buyer’s ownership of the Acquisition Price; equity interests of the Company following the Closing, to have incurred such Losses as a result of and in connection with such inaccuracy, failure, breach or non-fulfillment (3) all amounts payable to the Indemnitees it being understood that any such Losses suffered or incurred by the Stockholders for claims for indemnification under this Section 8.2(a) Company or its Subsidiaries shall be paid recoverable in accordance with this Article IX by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,any Buyer Indemnitee).
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the limitations set forth in this Section 9, agrees the Preferred Stockholders will, jointly and severally, with each other Stockholder, except severally with respect to the Company's representations, warranties warranties, covenants and covenants that are made by or agreed to by such Stockholder individually, agreements and severally with respect to which such Stockholder agrees with respect to himself onlytheir own representations, to indemnifywarranties, defend covenants and agreements, indemnify and hold Parent harmless Agere, the Surviving Entity and Acquisition Sub each Person, if any, who controls, may control or is controlled by Agere or the Surviving Entity within the meaning of the Securities Act (and the rules and regulations thereunder), and their respective officers, directors, employees, Affiliates agents and agents advisors (collectivelyeach such indemnitee being referred to herein as an "Indemnified Person"), the "Indemnitees") harmless from an amount equal to (x) a fractionand against any and all losses, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all costs, damages, losses, liabilities, obligations, claims of any kindimpositions, interest or expenses (inspections, assessments, fines, deficiencies and expenses, including, without limitation, reasonable attorneys' legal fees and expenses) (collectively, "LossDamages"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees Indemnified Person may incur or suffer resulting from, based upon or relating to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any inaccuracy in any representation or warranty made by any Stockholder the Company or the Preferred Stockholders in this Agreement, Agreement (including in any of the Transaction Documents Exhibit or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant Schedule to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), Agreement) or (ii) any breach or alleged breach default by any the Company or the Preferred Stockholders of any of their the covenants or agreements contained herein given or therein, made by any of them in each case, without giving effect this Agreement (including in any Exhibit or Schedule to this Agreement); provided that any "materiality", "knowledge" indemnification sought by an Indemnified Person in respect of Taxes (or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty made in respect thereof) will be governed by the Tax indemnity set forth in Section 9.4 and will not be subject to the provisions of this Section 9.2, Section 9.3 or covenant of Section 9.8.
(b) Agere, the Company and the Preferred Stockholders contained in this Agreementacknowledge that such Damages, any of if any, would relate to unresolved contingencies existing at the Transaction DocumentsClosing Date, or any certificate delivered pursuant which if resolved at the Closing Date would have led to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 a reduction in the aggregate (after which total consideration that Agere would have agreed to pay in connection with the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Agere Systems Inc)
General Indemnification. (a) Each StockholderThe Sellers and Hydro, agrees jointly and severally, shall indemnify and hold the Purchaser Indemnified Parties harmless from and against all Losses incurred by any of the Purchaser Indemnified Parties and shall, in accordance with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnifyClause 10.14, defend and hold Parent and Acquisition Sub and their respective officers, directors, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount Purchaser Indemnified Parties in respect of all damagesactions, lossesproceedings, liabilities, obligations, claims suits or demands of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures nature involving any of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result ofPurchaser Indemnified Parties, in connection witheach case resulting from, or arising out of (i) the failure or relating to any breach of any representation or warranty made by any Stockholder in this Agreement, in any of the Transaction Documents Sellers or in any certificate breach or other instrument non-fulfillment of any covenant, obligation or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as agreement on the part of the date Sellers and any breach or non-fulfillment of any covenant, obligation or agreement on the part of Hydro and the other entities comprising the Hydro Group, of this Agreement and the Ancillary Agreements. The Purchaser Indemnified Parties shall give written notice (the “Indemnity Notice”) to the Sellers and Hydro promptly after becoming aware of (a) any claim for Losses as of to which indemnification may be sought against the Closing Date (unless made as of another date), Sellers and Hydro or (iib) any breach action, proceeding, suit or alleged breach by any Stockholders demand of any nature for which the Purchaser Indemnified Parties seek defense thereof by the Sellers and Hydro. All claims for Losses shall be paid and satisfied by the Sellers and Hydro within sixty (60) days after receipt of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualificationsIndemnity Notice; provided, however, that (1) the Stockholders shall not have if any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused claim for Losses is arbitrated by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered Sellers and Hydro pursuant to this Agreement until Parent or Acquisition Sub have suffered Clause 16, and the Purchaser Indemnified Parties are successful in respect of such arbitration, then the claim for Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock and satisfied by the Escrow Agent pursuant Sellers and Hydro within thirty (30) days after the arbitrator’s final decision is published. Any payment to be made by the Sellers and Hydro in accordance with this Clause 10 shall include interest thereon calculated from the date of receipt by the Sellers of the Indemnity Notice to the terms date of payment in accordance with the Escrow Agreement and shall be borne pro rata by the Stockholders,interest rate described in Clause 14.6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preem Holdings Ab Publ)
General Indemnification. (a) Each Stockholder, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to Sears shall indemnify, defend and hold Parent the Company and Acquisition Sub and their respective each of its officers, directorsdirectors and affiliates, employees, Affiliates and agents (collectively, the "Indemnitees") harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on including WAH immediately following the Closing Date multiplied by (y) the amount of all damageseach, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) (a "LossCompany Indemnitee"), except with respect to failures of representations harmless from and warranties against, and breaches of covenants shall reimburse each Company Indemnitee for, any and all Losses (as defined below) that may be incurred or agreements that are made by or agreed to suffered by such Stockholder individuallyCompany Indemnitee relating to, with respect to which such Stockholder agrees to indemnify the Indemnitees based upon, resulting from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) any breach or other violation of any representation, warranty, agreement, obligation or commitment of Sears under this Agreement or the failure Assumption Agreement, (ii) any WAH Liabilities (as defined below), (iii) the Share Exchange or Merger Transaction; provided, that Sears will not indemnify the Company for any Losses that arise out of or result from (w) the Company's breach or violation of any representation or warranty made by (without regard to any Stockholder materiality or knowledge qualifiers otherwise pertaining thereto), agreement, obligation or commitment of the Company under this Agreement or the Assumption Agreement, including any of the covenants contained in Section 1.6 of this Agreement, (x) any liabilities which arise out of or result from any obligation, duty, responsibility or commitment, contractual or otherwise, of the Company or its subsidiaries that exists either as of or prior to the Closing (the "Company Liabilities") or (y) any liabilities of WAH, contractual or otherwise, that occur as a result of or arise from the Company Liabilities through agreement, operation of law or otherwise or (iv) Sears' ownership of the equity of WAH, except that any such Losses relating to, based upon, resulting from or arising out of any breach or other violation of any representation and warranty set forth in Section 3.8 or subject to indemnification under Section 5.2 shall be governed exclusively by Section 5. The parties hereto agree that this Agreement, including the indemnification provisions hereof, shall not be deemed to alter in any way Sears' liability under the Merger Agreement (as defined in Schedule 3.6 hereto), except to the extent that Sears' liability under the Merger Agreement will be sole rather than joint and several with WAH.
(b) The Company shall indemnify, defend and hold Sears and each of its officers, directors and affiliates (each, a "Sears Indemnitee"), harmless from and against, and shall reimburse each Sears Indemnitee for, any and all Losses that may be incurred or suffered by such Sears Indemnitee relating to, based upon, resulting from or arising out of any breach or other violation of any representation, warranty, agreement, obligation or commitment of the Company under this Agreement or the Assumption Agreement, including any of the Transaction Documents or covenants contained in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date Section 1.6 of this Agreement and as Agreement.
(c) For purposes of the Closing Date (unless made as of another date), or (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, any of the Transaction Documents, or any certificate delivered pursuant to this Agreement until Parent or Acquisition Sub following terms shall have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only to the extent they exceed $200,000); (2) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,following definitions:
Appears in 1 contract
General Indemnification. (a) Each StockholderSubject to the provisions contained in this Article VII, agrees jointly from and severallyafter the Closing, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend Seller shall indemnify and hold Parent and Acquisition Sub harmless Buyer, Parent, and their respective officersAffiliates, directorsRepresentatives, employeessuccessors, Affiliates and agents permitted assigns (collectively, the "Indemnitees"“Buyer Indemnified Persons”) harmless from an amount equal to (x) a fraction, the numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, losses, liabilities, obligations, claims in respect of any kindLosses that any Buyer Indemnified Person incurs, interest sustains, or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, suffers as a result of, in connection withrelating to, or arising out of caused by:
(i) the failure any breach of or inaccuracy in any representation or warranty made by any Stockholder Seller in this Agreement, in any of the Transaction Documents Article II or in any certificate or other instrument or document provided to Parent or Acquisition Sub pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), or Transaction Document;
(ii) any breach nonfulfillment of or alleged breach by any Stockholders Seller of any of their covenants or agreements contained herein or thereincovenant, in each case, without giving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the nature ofagreement, or caused obligation made by Seller in this Agreement or any other Transaction Document; or
(iii) any Excluded Liabilities or Excluded Assets.
(b) Subject to the provisions contained in this Article VII, after the Closing, Buyer and Parent, on a joint and several basis, shall indemnify and hold harmless Seller and its Affiliates, Representatives, successors, and permitted assigns (collectively, the “Seller Indemnified Persons”) in respect of any Losses that any Seller Indemnified Person incurs, sustains, or suffers as a result of:
(i) any breach of or inaccuracy in any such surviving representation or warranty made by Buyer or covenant Parent contained in Article III;
(ii) any nonfulfillment of the Stockholders contained or breach by Buyer or Parent of any covenant, agreement, or other obligation made by Buyer or Parent in this Agreement, ; 05466425.6 47
(iii) any of the Transaction Documents, and all Losses suffered or incurred by any certificate delivered Seller Indemnified Persons in connection with Seller’s obligations pursuant to this Agreement until Parent or Acquisition Sub have suffered Losses in excess of $200,000 in the aggregate (after which the Stockholders shall be obligated to indemnify Parent and Acquisition Sub from and against Losses only Section 4.12 other than to the extent they exceed $200,000)any such Losses are suffered or incurred as a result of Fraud; or
(2iv) the aggregate amount to be payable to the Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an amount equal to 25 percent of the Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the Escrow Agreement and shall be borne pro rata by the Stockholders,any Assumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Priority Technology Holdings, Inc.)
