Indemnification and Payment of Damages by the Sellers. (a) The Sellers, jointly and severally, will indemnify and hold harmless Purchaser and its Representatives, shareholders, directors, officers, controlling persons and Affiliates (collectively, the "Purchaser Indemnified Persons") for, and will pay to the Purchaser Indemnified Persons the amount of any actual loss, liability, claim or damage or expense (including costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-party claim (collectively, "Damages"), arising, directly or indirectly, from or in connection with: (i) any Breach of any representation or warranty made by the Company or the Subsidiary in this Agreement or any Schedule attached hereto, or any other certificate or document delivered by the Company or the Subsidiary pursuant to this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty); (ii) any Breach by the Company or the Subsidiary of any covenant or obligation of the Company or the Subsidiary in this Agreement or any document executed pursuant to this Agreement; (iii) any product sold, or any services provided by the Company or the Subsidiary prior to the Closing Date; (iv) any claim by any Person for investment banking, broker's or finder's fees or commissions, investment balancing fees or similar payments based upon any agreement or understanding alleged to have been made by such Person with the Company or the Subsidiary (or any Person acting on its behalf) in connection with any of the Subject Transactions. (v) any liability or obligation of the Company or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities; (vi) any liability or obligation of the Sellers arising out of the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement; (vii) the failure to make all filings with, or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses; (viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice; (ix) any environmental liabilities or obligations with respect to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;
Appears in 1 contract
Samples: Asset Purchase Agreement (Eye Care Centers of America Inc)
Indemnification and Payment of Damages by the Sellers. (a) The Sellers, jointly and severally, will Each Seller hereby agrees to indemnify and hold harmless Purchaser ICC, the Company and its Representativestheir respective representatives (including all officers and directors), shareholders, directors, officersstockholders, controlling persons and Affiliates affiliates (collectively, the "Purchaser Indemnified Persons") forfrom and against, and will pay to the Purchaser Indemnified Persons the amount of any actual loss, liability, claim or damage claim, damage, cost or expense (including costs of investigation and defense and reasonable attorneys' fees)and experts' fees and expenses) or diminution of value, whether or not involving a third-party claim (collectively, "Damages"), arising, directly or indirectly, from or in connection withwith or incurred as a result of:
(i) any Breach breach of any representation or warranty made by such Seller or the Company in this Agreement, the Disclosure Schedule or in any certificate delivered by such Seller or the Subsidiary in this Agreement or any Schedule attached hereto, or any other certificate or document delivered by the Company or the Subsidiary pursuant to this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty);
(ii) any Breach by the Company or the Subsidiary of any covenant or obligation of the Company or the Subsidiary in this Agreement or any document executed pursuant to this Agreement;
(ii) any breach by such Seller or Company of any covenant or obligation of such Seller or Company in this Agreement; and
(iii) any product sold, or any services provided and all Taxes payable by the Company with respect to or as a result of the distribution of the membership interests in IDC Realty to shareholders of the Company contemplated by Section 2.12.
(b) Notwithstanding anything in this Section 11.2 to the contrary, the Sellers shall not have any obligation to indemnify the Indemnified Persons for any Damages resulting from the breach or breaches of any representation or warranty of the Sellers or the Subsidiary prior to Company contained in Section 4 of this Agreement or in the Closing Date;
(iv) Disclosure Schedule or in any claim certificate relating thereto and delivered by any Person for investment banking, broker's or finder's fees or commissions, investment balancing fees or similar payments based upon any agreement or understanding alleged to have been made by such Person with the Company or the Subsidiary (or any Person acting on its behalf) in connection with any of the Subject TransactionsSellers or the Company pursuant to this Agreement until the Indemnified Persons have suffered Damages, by reason of such breach or breaches, in excess of $50,000 in the aggregate (the "Seller Basket"); provided that once the Indemnified Persons' aggregate Damages exceed the Seller Basket, the Sellers shall indemnify the Indemnified Persons for all such Damages suffered in excess of the Seller Basket.
(vc) Notwithstanding anything to the contrary in this Section 11.2, in the absence of fraud or intentional misrepresentation, no Seller individually shall be liable for any Damages resulting from the breach or breaches, in any case or in the aggregate, of (i) any liability representation or obligation of the Company or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vi) any liability or obligation warranty of the Sellers arising out or the Company contained in Section 4 of this Agreement or in the Disclosure Schedule or in any certificate relating thereto and delivered by any of the Vision World Acquisition AgreementSellers or the Company pursuant to this Agreement or (ii) any covenant contained in Section 6.3, 6.4, 6.5 or 6.7 in excess of such Seller's Shareholder's Percentage multiplied by one million dollars ($1,000,000). The indemnification obligations of the Sellers under this Agreement shall terminate on October 31, 2001 except as to Sections 3.2, 3.4, 4.3, 4.8, 4.17 and 4.24, which shall survive for the applicable statute of limitations. Subject to Section 6.9, the Eye Care Acquisition Agreement, right to indemnification pursuant to this Section 11 shall be the Drx Acquisition Agreement exclusive remedy of the Indemnified Persons and the Seller Parties for any and all Damages incurred by them as a result of the items described in Section 11.2(a) or the TCOL Stock Purchase Agreement;Section 11.3(a).
(viid) The Sellers shall be entitled to a credit against any liability for Damages under Article 11 to the failure extent and in the amount of insurance proceeds actually received by any Indemnified Person in respect of such Damages. If a Seller indemnifies an Indemnified Person for Damages and the Indemnified Person thereafter receives any funds or assets from another person or entity with respect to make all filings withsuch loss, such that the loss to be indemnified would have been reduced, then the Seller shall be entitled to receive such funds or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate assets promptly from the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;Indemnified Party.
(viiie) any liability or obligation relating A Seller may elect to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, satisfy any claim for COBRA benefits arising out Damages for which he is liable under this Section 11.2 either (i) by paying cash in the amount of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect such Damages to the Minnesota corporate headquarters Indemnified Person or otherwise disclosed on Schedule 3.24;(ii) if Seller holds ICC Shares as of the date of receipt of notice of such claim, by surrendering certificates, duly endorsed in blank, with signatures guaranteed, representing a number of ICC Shares with a value sufficient to satisfy such claim. Such shares shall be transferred free and clear of all Encumbrances other than restrictions imposed by law or by this Agreement. For purposes of clause (ii) of the preceding sentence, each ICC Share shall be deemed to have a value equal to the ICC Common Stock Market Value as of the Effective Time.
Appears in 1 contract
Indemnification and Payment of Damages by the Sellers. (a) The Sellers, jointly and severally, will indemnify and hold harmless Purchaser Altisource U.S., Altisource S.à x.x., and its their Representatives, shareholders, directorscontrolling persons, officers, controlling persons and Affiliates (collectively, the "Purchaser “Altisource Indemnified Persons"”) for, and will pay to the Purchaser Altisource Indemnified Persons the amount of of, any actual loss, liabilityLiability, claim or claim, damage or (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys' fees)’ and experts’ fees and disbursements) or diminution of value, whether or not involving a third-party claim (collectively, "“Damages"”), arising, directly or indirectly, from or in connection with:
with (ia) any Breach breach of any representation or warranty made by the Company or the Subsidiary Sellers in this Agreement or any Schedule attached heretoAgreement, the Disclosure Schedule, or any other certificate or document delivered by the Company or the Subsidiary Sellers pursuant to this Agreement Agreement; (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty);
(iib) any Breach breach by the Company or the Subsidiary Sellers of any covenant or obligation of the Company or the Subsidiary Sellers in this Agreement or any document executed pursuant to this Agreement;
; (iiic) any product soldLiability of Power Default with respect to any Proceeding relating to circumstances, occurrences, events, acts, or any services provided by the Company or the Subsidiary omissions occurring prior to the Closing Date;
(iv) any claim by any Person for investment bankingHomeward Effective Time, broker's whether or finder's fees or commissionsnot such Proceeding was commenced before, investment balancing fees or similar payments based upon any agreement or understanding alleged to have been made by such Person with the Company or the Subsidiary (or any Person acting on its behalf) in connection with any of the Subject Transactions.
(v) any liability or obligation of the Company or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vi) any liability or obligation of the Sellers arising out of the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings withat, or give all notices toafter the Homeward Effective Time, and obtain all consents of, any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice;
those Proceedings set forth on Schedule 3.8; (ixd) any environmental liabilities or obligations Liability of Beltline with respect to any Proceeding relating to circumstances, occurrences, events, acts, or omissions occurring prior to the Minnesota corporate headquarters Beltline Effective Time, whether or otherwise disclosed not such Proceeding was commenced before, at, or after the Beltline Effective Time, and including, without limitation, those Proceedings set forth on Schedule 3.24;3.8; (e) all restructuring and conversion Liabilities (including, without limitation, third party contracts and vendor termination costs, employee termination and severance costs, lease notice, renegotiation and termination costs, and joint venture wind-down costs) incurred prior to, at, or following the Homeward Effective Time; and (f) all restructuring and conversion Liabilities (including, without limitation, third party contracts and vendor termination costs, employee termination and severance costs, lease notice, renegotiation and termination costs, and joint venture wind-down costs) incurred prior to, at, or following the Beltline Effective Time.
Appears in 1 contract
Indemnification and Payment of Damages by the Sellers. (a) The Sellers, jointly and severally, will shall indemnify and hold harmless Purchaser Buyer, the Company, SSA, their Affiliates and its Representatives, shareholderstheir respective officers, directors, officersmanagers, members, stockholders, controlling persons persons, representatives, successors and Affiliates assigns (collectively, the "Purchaser “Buyer Indemnified Persons"”) for, and will pay to the Purchaser Buyer Indemnified Persons pursuant to the terms of this Master Purchase Agreement, the amount of any actual loss, liability, claim or damage or expense (including costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-party claim (collectively, "Damages"), Damages arising, directly or indirectly, from or in connection with:
(i) any Breach inaccuracy in or breach of any representation or warranty made of the Sellers, the Company and/or SSA in this Master Purchase Agreement, as modified by the Company or the Subsidiary in this Agreement or any Schedule attached heretoDisclosure Schedule, or any of the other certificate or document delivered by the Company or the Subsidiary pursuant to this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty)Transaction Documents;
(ii) any Breach by breach of, or failure to perform of the Company or the Subsidiary Sellers of any covenant or obligation of the Company or the Subsidiary Sellers set forth in this Master Purchase Agreement or in any document executed pursuant to this Agreementother Transaction Document;
(iii) any product soldinaccuracy in the certificate delivered by the Sellers and the Company under Section 2.4(a)(iii);
(iv) any claim that any Person (other than the Sellers) owns or holds, or has any services provided right, title or interest in or to, any equity securities of the Company or SSA or has any right to receive any payments from Buyer, the Company or SSA in respect of such equity securities of the Company or SSA, other than as contemplated by this Master Purchase Agreement;
(v) any obligations, costs and expenses payable at any time to any current or prior employee of the Company with respect to the period prior to the Closing Date, including any obligations, costs and expenses to any employee of the Company who is terminated by the Company prior to or at the Subsidiary Closing and any Covered Employee who does not become a Hired Employee in accordance with Section 6.5;
(vi) any amount required to be paid by the Sellers, the Company and/or SSA outstanding as of the Closing Date and not paid prior to the Closing or at the Closing as a Closing Debt or Closing Expense;
(vii) any Tax with respect to the Company or SSA which: (A) is wholly or partially related to any period or partial period ending on or before the Closing Date; or (B) would not have occurred but for a breach of a representation or warranty set forth in Section 3.10 of this Master Purchase Agreement;
(viii) any product liability claim, or other allegation of personal injury or property damage, relating to any product created, licensed, distributed or sold by the Company on or prior to the Closing Date;
(ivix) any claim by any Person for investment banking, broker's brokerage or finder's ’s fees or commissions, investment balancing fees commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any Seller, the Company or the Subsidiary SSA (or any Person acting on its their behalf) in connection with any of the Subject Contemplated Transactions;
(x) any claim related to the business or operations of Wynstream, including any claim arising in connection with the Company’s ownership interest in the Wynstream; or
(xi) any claim arising out of or related to the matters set forth in Section 3.13 of the Disclosure Schedule.
(vb) The Seller’s indemnification obligation with respect to any liability claims arising under Sections 9.2(a)(ii) through (xi) will survive until the expiration of the applicable statutes of limitations for any such claims (including extensions thereof as a result of timely filed waivers).
(c) Each Seller acknowledges and agrees that: (i) Buyer is relying on the representations, warranties, covenants and obligations of the Sellers, the Company and SSA set forth in this Master Purchase Agreement in entering into this Master Purchase Agreement and consummating the Contemplated Transactions; (ii) such Seller, jointly and severally, will indemnify and hold harmless the Buyer Indemnified Persons for, and will pay to the Buyer Indemnified Persons subject to the terms of this Master Purchase Agreement, including the time and amount limitations set forth in this Article IX, the amount of any Damages arising, directly or indirectly, from or in connection with any inaccuracy in or breach of any representation, warranty, covenant or obligation of Sellers, the Company and SSA in this Master Purchase Agreement, the Disclosure Schedule or any of the other Transaction Documents; (iii) in no event shall such Seller raise as a defense to its indemnification obligations under Article IX that the applicable representation, warranty, covenant or obligation was a representation, warranty, covenant or obligation of the Company Company, SSA or the Subsidiary another Seller and not of such Seller or otherwise seek to avoid its indemnification obligations under Article IX under any similar theory at law or in equity; and (iv) in no event shall such Seller have and shall not exercise or assert (or attempt to exercise or assert), any right of their respective predecessors relating contribution, right of indemnity or advancement of expenses or other right or remedy against Buyer, the Company and/or SSA in connection with any indemnification obligation under this Article IX or any other Liability to their operations which such Seller may become subject under or in connection with this Agreement, any other Transaction Document or any other agreement, document, certificate or instrument entered into or delivered by or on behalf of such Seller under or pursuant to this Master Purchase Agreement or in connection with the consummation of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vi) any liability or obligation of the Sellers arising out of the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings with, or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;Contemplated Transactions.
Appears in 1 contract
Samples: Membership Interest and Stock Purchase Agreement (Chase Corp)
Indemnification and Payment of Damages by the Sellers. (a) The SellersSellers will, with respect to Article III, Severally, and with respect to Article IV and VI, jointly and severally, will indemnify and hold harmless the Purchaser and its Representatives, shareholdersofficers, directors, officersemployees, controlling persons agents and Affiliates (collectively, the "Purchaser Indemnified PersonsParties") for, and will pay to the Purchaser Indemnified Persons such indemnified persons the amount of of, any actual loss, liability, claim or claim, Taxes, damage or expense (including costs of investigation and defense and reasonable attorneys' and professionals' fees), whether or not involving a third-party claim Third Party Claims, and not considering the benefit of any such item to Purchaser for Tax purposes or any insurance proceeds received by Purchaser (but will be net of insurance benefits to the Company from policies of insurance that have been paid for by the Company) (collectively, "Damages"), arising, directly or indirectly, from or in connection with:
(i) any Breach breach of any representation or warranty made by the Company Sellers in Article III or Article IV by the Sellers or the Subsidiary in this Agreement or any Schedule attached hereto, or any other certificate or document delivered by the Company or the Subsidiary pursuant to this Agreement (without regard or the other Documents that confirms or otherwise relates to any qualification as to "materiality" such representations or substantiality" contained in any such representation or warranty)warranties;
(ii) any Breach breach by the Company or the Subsidiary Sellers of any covenant or obligation of the Company Sellers or the Subsidiary Company in this Agreement or any document executed pursuant to this AgreementArticle VI;
(iii) any product sold, or any services provided fraud by the Company or the Subsidiary prior Sellers in connection with this Agreement and the transactions contemplated hereby.
(b) The Purchaser will indemnify and hold harmless the Sellers and their respective Affiliates (together with the Purchaser Indemnified Parties, the "Indemnified Parties," and each such party individually, an "Indemnified Party") for, and will pay to such indemnified persons the Closing Dateamount of, any Damages arising, directly or indirectly, from or in connection with:
(i) any breach of any representation or warranty made by the Purchaser in Article V or the other Documents that confirms or otherwise relates to such representations or warranties;
(ivii) any claim breach by the Purchaser of any Person for investment banking, broker's or finder's fees or commissions, investment balancing fees or similar payments based upon any agreement or understanding alleged to have been made by such Person with the Company or the Subsidiary (or any Person acting on its behalf) in connection with any of the Subject Transactions.
(v) any liability covenant or obligation of the Company or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;Purchaser in Article VI; and
(viiii) any liability or obligation of fraud by the Sellers arising out of the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Purchaser in connection with this Agreement or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings with, or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;hereby.
Appears in 1 contract
Samples: Stock Purchase Agreement (Zones Inc)
Indemnification and Payment of Damages by the Sellers. Each Seller (pro rata in accordance with the percentage of the Purchase Price received by each such Seller with respect to paragraphs (a), (c), (e) The Sellersand (f) of this Section 7.2, jointly but such Seller shall be solely responsible for all of the Damages with respect to the indemnification obligations of such Seller under paragraphs (b) and severally, (d) of this Section 7.2) will indemnify and hold harmless Purchaser Buyer, the Acquired Companies, and its their respective Representatives, shareholders, directors, officersstockholders, controlling persons persons, and Affiliates affiliates (collectively, the "Purchaser Indemnified Persons") for, and will pay to the Purchaser Indemnified Persons the amount of of, any actual loss, liability, claim or damage or claim, damage, expense (including reasonable costs of investigation and defense and reasonable attorneys' fees)) or diminution of value, whether or not involving a third-party claim (collectively, "Damages"), arising, directly or indirectly, from or in connection with:
(ia) any Breach of any representation or warranty made by the Company or the Subsidiary in this Agreement or any Schedule attached heretoAgreement, the Company's Schedule, or any other certificate or document delivered by the Company or the Subsidiary pursuant to this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty)Agreement;
(iib) any Breach of any representation or warranty made by such Seller in Section 4 of this Agreement;
(c) any Breach by the Company or the Subsidiary of any covenant or obligation of the Company or the Subsidiary in this Agreement or any document executed pursuant to this Agreement;
(iiid) any product sold, Breach by such Seller of any covenant or any services provided by the Company or the Subsidiary prior to the Closing Dateobligation of such Seller in this Agreement;
(ive) any Deferred Cash Shortfall in excess of the Deferred Cash Payment; or
(f) any claim by any Person for investment banking, broker's brokerage or finder's fees or commissions, investment balancing fees commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the any Seller or any Acquired Company or the Subsidiary (or any Person acting on its their behalf) in connection with any of the Subject Contemplated Transactions.
(v) any . Except as expressly provided in this Section 7.2, after the Closing the Company and Sellers shall have no obligation or liability to Buyer or obligation of the other Indemnified Persons, and such parties shall have no claim or recourse against the Company or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vi) any liability or obligation of the Sellers Seller, arising out of the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings with, or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate in connection with the transactions contemplated by the Vision World Acquisition this Agreement, it being understood and agreed by the Eye Care Acquisition Agreementparties that the remedies provided in this Section 7.2 shall be the sole and exclusive remedies for any such claim by Buyer and/or any other Indemnified Person for any such matters, the Drx Acquisition Agreement whether such claims are framed in contract, tort or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;otherwise.
Appears in 1 contract
Indemnification and Payment of Damages by the Sellers. (a) The Subject to the provisions of Section 8.5 below, the Sellers, jointly and severally, up to the amount of the Indemnity Escrow, will indemnify and hold harmless Purchaser Buyer, and its Representativesstockholders, shareholdersControl Persons, directors, officers, controlling persons and Affiliates affiliates and their respective permitted assigns (collectively, the "Purchaser Buyer Indemnified Persons") for, and will pay to the Purchaser Buyer Indemnified Persons the amount of of, any actual loss, liability, claim claim, damage (excluding incidental or damage consequential damages or damages for lost profits), expense (including reasonable costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-third- party claim (collectively, "Damages"), arising, directly actually suffered or indirectly, incurred by such Buyer Indemnified Person arising from or in connection with:
(ia) any Breach of any representation or warranty made by the Company or the Subsidiary any Seller in this Agreement or any Schedule attached hereto, or any other certificate or document the Schedules hereto delivered by the Company or the Subsidiary pursuant to this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty);
(ii) any Breach by the Company or the Subsidiary of any covenant or obligation of the Company or the Subsidiary in this Agreement or any document executed Seller pursuant to this Agreement;
(iiib) any Breach by any Seller of any covenant or obligation of any Seller in this Agreement;
(c) any product soldsold or shipped by, or any services provided provided, by the any Acquired Company or the Subsidiary prior to the Closing Date;
(ivd) the Breach by Sellers of any of their respective obligations under Section 5.4;
(e) (i) any Taxes (accrued or unaccrued) as of February 29, 2000 (other than those described in Section 5.4(a)) in excess of the reserves for Taxes set forth on the Closing Balance Sheet owed by any Acquired Company or any of the Sellers in respect of any Acquired Company's operations prior to the date of the Closing Balance Sheet; and (ii) any Breach of any of the representations made in Sections 3.1.3 or 3.2.1(a)(iv) hereof (but only to the extent related to the Company's ownership of its Subsidiaries or Sellers' title to the Shares); or
(f) any breach by GWG Financial LLC or by G. Xxxxx Xxxxxxx, as guarantor, of their respective obligations under the Environmental Obligations Agreement; and any claim by any Person for investment banking, broker's brokerage or finder's fees or commissions, investment balancing fees commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the any Seller or any Acquired Company or the Subsidiary (or any Person acting on its their behalf) in connection with any of the Subject Contemplated Transactions.
(v) any liability or obligation of the Company or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vi) any liability or obligation of the Sellers arising out of the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings with, or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;
Appears in 1 contract
Indemnification and Payment of Damages by the Sellers. Subject to Sections 10.4 and 10.5 hereof, (a) The the Management Sellers, jointly and severally, as to all claims under this Section 10, SC, severally and not jointly, as to representations and warranties made by it under Section 3,28 (but not as to any other claims made under Section 10, including this Section 10.2) and (c) Non-Management Sellers other than SC, severally (but not jointly and severally) as to claims for breaches of representations and warranties made by them under Section 3.29, will indemnify and hold harmless Purchaser the Buyer and its respective Representatives, shareholders, directorscontrolling persons, officers, controlling persons and Affiliates affiliates (collectively, the "Purchaser Indemnified Persons") for, and will pay to the Purchaser Indemnified Persons the amount of of, any actual loss, liability, claim or claim, damage or (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys' fees)) or diminution of value, whether or not involving a third-party claim (collectively, "Damages"), arising, directly or indirectly, arising from or in connection with:
(ia) any Breach breach of any representation or warranty made by the Company or the Subsidiary Sellers in this Agreement or any Schedule attached heretoAgreement, the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by the Company or the Subsidiary pursuant to this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty);
(ii) any Breach by the Company or the Subsidiary of any covenant or obligation of the Company or the Subsidiary in this Agreement or any document executed Sellers pursuant to this Agreement;
(iiib) any product sold, breach of any representation or any services provided warranty made by the Company Sellers in this Agreement as if such representation or warranty were made on and as of the Subsidiary prior Closing Date without giving effect to any supplement to the Closing DateDisclosure Letter, other than any such breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 2.5(a)(iv) as having caused the condition specified in Section 7.1 not to be satisfied;
(ivc) any breach by any Seller of any covenant or obligation of such Seller in this Agreement that is not cured within 30 days of notice from the Buyer;
(d) any Taxes in respect of the operation of the Business through the end of 1996 fiscal year of the Acquired Companies except to the extent provided for in the Balance Sheet;
(e) any claim by any Person for investment banking, broker's brokerage or finder's fees or commissions, investment balancing fees commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the Sellers or any Acquired Company or the Subsidiary (or any Person acting on its their behalf) in connection with any of the Subject Transactions.transactions contemplated hereby; and
(vf) any liability and all actions, suits, proceedings, damages, assessments, judgments, costs and expenses, including reasonable attorneys' fees, incurred by the Buyer or obligation any Acquired Company as a result of the Company Sellers' failure or the Subsidiary (refusal to compromise or defend any claim incident to, or otherwise comply with, any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vi) any liability or obligation of the Sellers arising out of the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings with, or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;foregoing provisions.
Appears in 1 contract
Indemnification and Payment of Damages by the Sellers. (a) The Sellers, jointly and severally, will indemnify and hold harmless Purchaser Buyer, the Acquired Companies, and its their respective Representatives, shareholders, directorscontrolling persons, officers, controlling persons and Affiliates affiliates (collectively, the "Purchaser Indemnified Persons") for, and will pay to the Purchaser Indemnified Persons the amount of of, any actual loss, liability, claim or claim, damage or (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys' fees)) or diminution of value, whether or not involving a third-party claim (collectively, "Damages"), arising, directly or indirectly, from or in connection with:
(ia) any Breach of any representation or warranty made by the Company or the Subsidiary Sellers in this Agreement or (without giving effect to any Schedule attached heretosupplement to the Disclosure Letter), the Disclosure Letter, the supplements to the Disclosure Letter, or any other certificate or document delivered by the Company or the Subsidiary pursuant to this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty);
(ii) any Breach by the Company or the Subsidiary of any covenant or obligation of the Company or the Subsidiary in this Agreement or any document executed Sellers pursuant to this Agreement;
(iiib) any product sold, Breach of any representation or any services provided warranty made by the Company Sellers in this Agreement as if such representation or warranty were made on and as of the Subsidiary prior Closing Date without giving effect to any supplement to the Closing DateDisclosure Letter, other than any such Breach that is disclosed in a supplement to the Disclosure Letter and is expressly identified in the certificate delivered pursuant to Section 2.6(a)(iv) as having caused the condition specified in Section 7.1 not to be satisfied;
(ivc) any claim by any Person for investment banking, broker's brokerage or finder's fees or commissions, investment balancing fees commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the either Seller or any Acquired Company or the Subsidiary (or any Person acting on its their behalf) in connection with any of the Subject Contemplated Transactions.
(v) any liability or obligation of the Company or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vid) any liability Breach of any representation or obligation of warranty made by Oberstein in the Sellers arising out of the Vision World Acquisition Oberstein Personal Goodwill Agreement, which shall be executed contemporaneously with this Agreement; or
(e) any Breach of any representation or warranty made by Teiber in the Eye Care Acquisition Teiber Personal Goodwill Agreement, the Drx Acquisition Agreement which shall be execxxxx xontemporxxxxxxly with this Agreement. The remedies provided in this Section 11.2 will not be exclusive of or limit any other remedies that may be available to Buyer or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings with, or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;Indemnified Persons.
Appears in 1 contract
Indemnification and Payment of Damages by the Sellers. (a) The Sellers, jointly and severally, will indemnify and hold harmless Purchaser and its Representatives, shareholders, directors, officers, controlling persons and Affiliates (collectively, the "Purchaser Indemnified Persons") for, and will pay to the Purchaser Indemnified Persons the amount of any actual loss, liability, claim or damage or expense (including costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-party claim (collectively, "Damages"), arising, directly or indirectly, from or in connection with:
(i) any Breach of any representation or warranty made by the Company or the Subsidiary in this Agreement or any Schedule attached hereto, or any other certificate or document delivered by the Company or the Subsidiary pursuant to this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty);
(ii) any Breach by the Company or the Subsidiary of any covenant or obligation of the Company or the Subsidiary in this Agreement or any document executed pursuant to this Agreement;
(iii) any product sold, or any services provided by the Company or the Subsidiary prior to the Closing Date;
(iv) any claim by any Person for investment banking, broker's or finder's fees or commissions, investment balancing fees or similar payments based upon any agreement or understanding alleged to have been made by such Person with the Company or the Subsidiary (or any Person acting on its behalf) in connection with any of the Subject Transactions.
(v) any liability or obligation of the Company or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vi) any liability or obligation of the Sellers arising out of the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings with, or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;
(x) any of the costs or expenses arising out the failure of the Sellers to fulfill their obligations under SECTION 5.06 in excess of the $200,000 required to be reimbursed by Purchaser thereunder;
(xi) any liability or obligation arising under the Severance Letters except to the extent the Company is entitled to reimbursement from Purchaser in accordance with SECTION 6.07(E);
(xii) any obligation or commitment of the Company to grant any stock options to any of its employees including, without limitation, any obligation or commitment by the Company to grant stock options to any employee whose employment agreement has been assigned to Purchaser hereunder (e.g., any Assigned Contract); and
(xiii) any of the matters described on Schedule 3.12.
(b) In determining the loss to be indemnified, any insurance proceeds received by the Purchaser Indemnified Persons with respect to such loss shall be taken into account, and the Company's obligation to indemnify the Purchaser Indemnified Persons hereunder shall be reduced by the amount of such insurance proceeds.
(c) In the event that the Company is entitled to indemnification under the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement, the Company shall use reasonable efforts to collect the amounts owed and such amounts shall be paid to Purchaser to satisfy any indemnification claims by Purchaser arising out of the same or similar events or circumstances that resulted in the indemnification claim by the Company; provided, however, the Sellers' indemnification obligations hereunder shall be independent from the Sellers' collection of any indemnification claims under the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement and all indemnification payments owed by the Sellers hereunder shall be paid by the Sellers promptly without regard to the Company's collection of any indemnity claim under such acquisition agreements.
(d) Any amounts paid in satisfaction of an indemnification claim under this SECTION 9.02 shall be deemed for all purposes as a decrease to the Purchase Price.
(e) With respect to any Damages arising out of a Breach by a Seller of a representation or warranty for which Purchaser is entitled to indemnification hereunder and does receive full payment thereof from the Sellers, to the extent that either of the Sellers assigned a warranty or other chose of action to Purchaser hereunder relating to the action giving rise to such indemnifiable claim, Purchaser shall assign such rights against a third party to the Sellers who may pursue a cause of action against such third-party.
Appears in 1 contract
Indemnification and Payment of Damages by the Sellers. (a) The Sellers, jointly and severally, will indemnify and hold harmless Purchaser Buyer, and its Representatives, shareholdersstockholders, directorsControl Persons, officers, controlling persons and Affiliates affiliates (collectively, the "Purchaser Buyer Indemnified Persons") for, and will pay to the Purchaser Buyer Indemnified Persons the amount of of, any actual loss, liability, claim or claim, damage or (excluding incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-third- party claim (collectively, "Damages"), arising, directly actually suffered or indirectly, incurred by such Buyer Indemnified Person arising from or in connection with:
(ia) any Breach of any representation or warranty made by the Company or the Subsidiary any Seller in this Agreement or any Schedule attached heretoAgreement, the Ancillary Agreements the Schedules or any other certificate or document delivered by the Company or the Subsidiary pursuant to this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any such representation or warranty);
(ii) any Breach by the Company or the Subsidiary of any covenant or obligation of the Company or the Subsidiary in this Agreement or any document executed Seller pursuant to this Agreement;
(iiib) any product soldBreach by any Seller of any covenant or obligation of any Seller in this Agreement;
(c) any Product sold or shipped by, or any services provided by the Company or the Subsidiary any Seller prior to the Closing Date;
(ivd) any Taxes (accrued or unaccrued) owed by any Seller in respect of any Seller's operations prior to the Closing; or
(e) any claim by any Person for investment banking, broker's brokerage or finder's fees or commissions, investment balancing fees commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the Company or the Subsidiary any Seller (or any Person acting on its their behalf) in connection with any of the Subject Contemplated Transactions.
(vf) the adjustment to the Purchase Price contemplated by Section 4.5. The remedies provided in this Section 10.2 will be not be exclusive of or limit any liability or obligation of the Company other remedies that may be available to Buyer or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vi) any liability or obligation of the Sellers arising out of the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings with, or give all notices to, and obtain all consents of, any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters on or prior to the Closing Date or any matter for which the Sellers have retained responsibility under SECTION 6.07, including, without limitation, any claim for COBRA benefits arising out of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;Buyer Indemnified Persons.
Appears in 1 contract
Indemnification and Payment of Damages by the Sellers. (a) The Sellers, jointly and severally, Sellers will indemnify and hold harmless Purchaser Open Energy and its Buyer and their respective Representatives, shareholders, directors, officersstockholders, controlling persons persons, and Affiliates affiliates (collectively, the "Purchaser “Indemnified Persons"”) for, and will pay to the Purchaser Indemnified Persons the amount of of, any actual loss, liability, claim or claim, damage (including incidental and consequential damages), or expense (including costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-party claim claim, but in all events after deduction for any tax benefit arising out of the circumstances that gave rise to the underlying loss, liability, claim, damage or expense (collectively, "“Damages"”), arising, directly or indirectly, from or in connection with:
(i) 10.2.1 any Breach of any representation or warranty made by the Company or the Subsidiary Sellers in this Agreement or any Schedule attached hereto, or any other certificate or document delivered by the Company or the Subsidiary Sellers pursuant to this Agreement;
10.2.2 any Breach of any representation or warranty made by the Company or Sellers in this Agreement (without regard to any qualification as to "materiality" or substantiality" contained in any if such representation or warranty)warranty were made on and as of the Merger Closing Date;
(ii) 10.2.3 any Breach by the Company or the Subsidiary Sellers of any covenant of their covenants or obligation of the Company or the Subsidiary obligations in this Agreement or any document executed pursuant to this Agreement;
(iii) any product sold, or any services provided by the Company or the Subsidiary prior to the Closing Date;
(iv) 10.2.4 any claim by any Person for investment banking, broker's brokerage or finder's fees or commissions, investment balancing fees commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with either Sellers or the Company or the Subsidiary (or any Person acting on its their behalf) in connection with any of the Subject Contemplated Transactions.
(v) any liability or obligation of the Company or the Subsidiary (or any of their respective predecessors relating to their operations of the Acquired Businesses prior to the Closing Date) other than the Assumed Liabilities;
(vi) 10.2.5 any liability or obligation of the Sellers Environmental, Health, and Safety Liabilities arising out of or relating to the Vision World Acquisition Agreementownership, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement;
(vii) the failure to make all filings withoperation, or give all notices to, and obtain all consents of, condition at any Governmental Body or other third parties required to consummate the transactions contemplated by the Vision World Acquisition Agreement, the Eye Care Acquisition Agreement, the Drx Acquisition Agreement or the TCOL Stock Purchase Agreement that could have a Material Adverse Effect on the Acquired Businesses;
(viii) any liability or obligation relating to claims by any current or former employee or independent contractor of the Company, or the Subsidiary (or their spouses or dependents) or the Practice relating to matters time on or prior to the Merger Closing Date of the Facilities or any matter for other properties and assets (whether real, personal, or mixed and whether tangible or intangible) in which the Company has or had an interest; and
10.2.6 any exercise of appraisal rights pursuant to Section 262 of the DGCL by a WaterEye stockholder. provided, however, that notwithstanding anything in this Agreement to the contrary, Sellers do not indemnify Open Energy or Buyer, and Sellers shall have retained responsibility under SECTION 6.07no liability whatsoever to Open Energy or Buyer, including, without limitation, for any claim for COBRA benefits Damages arising out of their employment with the Company, the Subsidiary or the Practice;
(ix) any environmental liabilities or obligations with respect related to the Minnesota corporate headquarters or otherwise disclosed on Schedule 3.24;Merger not being treated as a tax-free reorganization for United States federal income tax purposes.
Appears in 1 contract
Samples: Merger Agreement (Open Energy Corp)
