Indemnification and Reimbursement by Sellers. Sellers will jointly and severally indemnify, defend and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer Indemnitees”), and will reimburse Buyer Indemnitees for any loss, Liability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Party Claim (collectively, “Damages”) arising from or in connection with: (a) any breach of any representation or warranty made by such Seller in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement; (b) any breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement; (c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i); (d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions; (e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or (f) if the Closing occurs, any Retained Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Stewart & Stevenson Services Inc), Asset Purchase Agreement (Stewart & Stevenson LLC)
Indemnification and Reimbursement by Sellers. Sellers will Each Seller, jointly and severally indemnifyseverally, defend shall indemnify and hold harmless BuyerPurchaser and each Designee, and its Representatives, shareholders, subsidiaries and Related Persons if any (collectively, the “Buyer IndemniteesPurchaser Indemnified Persons”), against, and will shall reimburse Buyer Indemnitees for the Purchaser Indemnified Persons for, any loss, Liabilityliability, claim, demand, obligation, judgment, damage, cost, fee, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), penalties or fines, whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach of any representation or warranty made by such any Seller in (i) this Agreement, (ii) the Seller Disclosure LetterSchedules, as supplemented at or prior to Closing pursuant to Section 4.8, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix1.9(f) (for this purpose, each such certificate will be deemed to have stated that each Seller’s representations and warranties in this Agreement fulfill the requirements of Section 7.1 as of the Closing Date as if made on the Closing Date after giving effect to any supplement to the Disclosure Schedules delivered to Purchaser pursuant to Section 4.8 at or prior to Closing), (v) any transfer instrument instrument, or (vi) any other certificate, document, writing or instrument delivered by such any Seller pursuant to this AgreementSection 1.9;
(b) any breach of any covenant or obligation of such any Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such any Seller pursuant to this AgreementSection 1.9;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of any of the Assets Assets, or any act or omission of any Seller, prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)the Assumed Liabilities;
(d) if the Closing occurs, any claim of any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any such Person with such any Seller (or any Person acting on such behalf of any Seller’s behalf) in connection with any of the Contemplated Transactionstransactions contemplated by this Agreement;
(e) if subject to the Closing occursprovisions of Section 12.9 regarding sales or transfer taxes, all Taxes resulting from or payable in connection with the sale of the Assets pursuant to this Agreement, regardless of the Person on whom such Taxes are imposed by any Legal Requirement;
(f) any noncompliance with any bulk sales laws or fraudulent transfer law in respect of the transactions contemplated hereby;
(g) any liability under the WARN Act or any similar Legal Requirement that may result from an “Employment Loss,” as defined by 29 U.S.C. § 2101(a)(6), caused by any action of any Seller at or prior to the Closing;
(h) any Plan adopted, established or maintained by any Seller;
(i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary PlanExcluded Assets; or
(fj) if the Closing occurs, any Retained Excluded Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Horizon Health Corp /De/), Asset Purchase Agreement (Horizon Health Corp /De/)
Indemnification and Reimbursement by Sellers. Sellers will jointly and severally indemnify, defend and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer Indemnitees”), and will reimburse Buyer Indemnitees for any loss, Liability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach of any representation or warranty made by such Seller in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(b) any breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)Liability;
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Stewart & Stevenson LLC), Asset Purchase Agreement (Stewart & Stevenson Services Inc)
Indemnification and Reimbursement by Sellers. Sellers will and Company shall, jointly and severally indemnifyseverally, defend indemnify and hold harmless Buyer, and its Representatives, shareholders, subsidiaries directors, officers, employees, agents, subsidiaries, and Related Persons affiliates (collectively, the “"Buyer Indemnitees”Indemnified Persons"), and will shall reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ ' fees and expenses)) or diminution of value, whether or not involving a Third Party Claim (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such any Seller or Company in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) Agreement and any other certificate, document, writing or instrument delivered by such any Seller or Company pursuant to this Agreement;
(b) any breach Breach of any covenant or obligation of such any Seller or Company in this Agreement or in any other certificate, document, writing or instrument delivered by such any Seller or Company pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Company or its business or Assets prior to the Effective TimeClosing Date;
(d) any product or any services sold, except included in Inventory, or otherwise provided by, Company, in whole or in part, prior to the extent such Closing Date, including claims for Breach of warranty or product Liability;
(e) any Liability under any Company Contract entered into prior to the Closing Date, including any Liability arising out of or relating to Seller's credit facilities or any security interest related thereto;
(f) any Liability for Taxes, including (i) any Taxes arising as a result of the Company's operation of its Business or ownership of its Assets prior to the Closing Date, and (ii) any Taxes that will arise as a result of the sale of the Seller Shares pursuant to this Agreement;
(g) any Liability relating to payroll, vacation, sick leave, workers' compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits or any other employee plans or benefits of any kind for Company's employees or former employees or both;
(h) any Liability relating to the payment of all wages and other remuneration due to any Company employees with respect to their services as employees of Company through the close of business on the Closing Date, including pro rata bonus payments and all vacation pay earned prior to the Closing Date and the payment of any termination or severance payments and the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of Employee Retirement Income Security Act of 1974.
(i) any Liability arising out of any Proceeding commenced after the Closing Date and arising out of or relating to any occurrence or event happening prior to the Closing Date, and any Liability under any Company Contract that arises after the Closing but that arises out of or relates to an Assumed any Breach that occurred prior to the Closing, and any such other Liability;
(j) any Liability and, subject to Section 3.24(d), except for arising out of or resulting from Company's compliance or noncompliance with any Legal Requirement or Order of any Governmental Body;
(k) any Liability of a Purchased Subsidiary Company under this Agreement or any other than pre-closing Taxes described document executed in Section 2.4(b)(i);connection with the Contemplated Transactions; and
(dl) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments Liability of Company based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if acts or omissions occurring after the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained LiabilitiesDate.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Sockeye Seafood Group Inc), Stock Purchase Agreement (Star Energy Corp)
Indemnification and Reimbursement by Sellers. Sellers will (a) Subject to the limitations and procedures of this Article 7, Sellers, jointly and severally indemnifyseverally, defend and hold harmless will indemnify Buyer, its Affiliates and its Representatives, shareholders, subsidiaries and Related Persons their respective Representatives (collectively, the “Buyer IndemniteesIndemnified Parties”), and will reimburse Buyer Indemnitees Indemnified Parties, for any loss, Liability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Party Claim (collectively, “Damages”) arising from or in connection with:
(a) any breach of any representation or warranty made by such Seller in all Adverse Consequences to the extent caused by: (i) this Agreement, a breach by of any representations and warranties set forth in Article 2 (other than Sections 2.1(b)-(c) (Capitalization; Ownership) and 2.11(a) (Authorization and Enforceability) of Article 2); (ii) a breach by Sellers of their covenants or agreements in this Agreement (other than the Seller Disclosure Letter, covenants and agreements of Sellers set forth in Section 4.4); or (iii) the amendment(s) Separation Transactions, any Excluded Asset or supplement(s) any Excluded Liability (in each case other than those taken into account (and to the Seller Disclosure Letter, (ivextent taken into account) in calculating the certificate delivered pursuant to Section 2.9(a)(ix), (v) Purchase Price and/or any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;adjustments thereto.
(b) any Subject to the limitations and procedures of this Article 7, each Seller will severally, but not jointly, in an amount equal to such Seller’s Pro Rata Share will indemnify Buyer Indemnified Parties, and will reimburse Buyer Indemnified Parties, for all Adverse Consequences to the extent caused by (i) a breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
of his or its representations and warranties set forth in Sections 2.1(b)-(c) (cCapitalization; Ownership) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d2.11(a) (Authorization and Enforceability), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i);
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and ; (ii) a breach by such Seller of his or its covenants or agreements set forth in Section 4.4; or (iii) any prePre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if Taxes not yet due and payable as of the close of business on the Closing occurs, any Retained LiabilitiesDate.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers Each Seller will jointly and severally indemnify, defend indemnify and hold harmless Buyer, the Buyer Designees, Parent and its their respective Representatives, shareholdersstockholders, subsidiaries Subsidiaries and Related Persons (excluding, from and after the Closing Date, any Seller) (collectively, the “Buyer IndemniteesIndemnified Persons”), and will reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liabilityliability, claim, damage, expense (including third-party costs of investigation and defense and reasonable attorneys’ fees and expenses)) or diminution of value, whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach of any representation or warranty made by such any Seller in (i) this AgreementAgreement (without giving effect to any supplement to the Disclosure Letter described in Section 5.4(d)), (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) supplements to the Seller Disclosure Letter, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix)2.7, (v) any transfer instrument Sellers’ Closing Document or (vi) any other certificate, document, writing or instrument delivered by such any Seller pursuant to this Agreement;
(b) any breach of any covenant or obligation of such any Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller Sellers pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i);
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such any Seller (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;
(d) any noncompliance with any Bulk Sales Laws or fraudulent transfer law in respect of the Contemplated Transactions;
(e) if any Liability under the WARN Act or any similar state or local Legal Requirement that may result from an “Employment Loss,” as defined by 29 U.S.C. sect. 2101(a)(6), caused by any action of Sellers prior to the Closing occurs, or by Buyer’s decision not to hire previous employees of Sellers;
(if) any Seller Target Benefit Plan other than a Purchased Subsidiary Plan, and (ii) established or maintained by any pre-Closing Liability under any Purchased Subsidiary PlanSeller; or
(fg) if the Closing occurs, any Retained Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Chanticleer Holdings, Inc.)
Indemnification and Reimbursement by Sellers. Sellers will and the Company shall, jointly and severally indemnifyseverally, defend indemnify and hold harmless Buyer, and its Representativesrepresentatives, shareholders, subsidiaries directors, officers, employees, agents, subsidiaries, and Related Persons affiliates (collectively, the “"Buyer Indemnitees”Indemnified Persons"), and will shall reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ ' fees and expenses)) or diminution of value, whether or not involving a Third Third-Party Claim (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such any Seller or the Company in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) Agreement and any other certificate, document, writing or instrument delivered by such any Seller or the Compay pursuant to this Agreement;
(b) any breach Breach of any covenant or obligation of such any Seller or the Company in this Agreement or in any other certificate, document, writing or instrument delivered by such any Seller or the Company pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Company or its business or Assets prior to the Effective TimeClosing Date;
(d) any product or any services sold, except included in Inventory, or otherwise provided by, the Company, in whole or in part, prior to the extent such Closing Date, including claims for breach of warranty or product liability;
(e) any Liability under any Company Contract entered into prior to the Closing Date, including any Liability arising out of or relating to Seller's credit facilities or any security interest related thereto;
(f) any Liability for Taxes, including (1) any Taxes arising as a result of the Company's operation of its Business or ownership of its Assets prior to the Closing Date, and (2) any Taxes that will arise as a result of the sale of the Shares pursuant to this Agreement;
(g) any Liability relating to payroll, vacation, sick leave, workers' compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits or any other employee plans or benefits of any kind for the Company's employees or former employees or both;
(h) any Liability relating to the payment of all wages and other remuneration due to any Company's employees with respect to their services as employees of Company through the close of business on the Closing Date, including pro rata bonus payments and all vacation pay earned prior to the Closing Date and the payment of any termination or severance payments and the provision of health plan continuation coverage;
(i) any Liability arising out of any Proceeding commenced after the Closing Date and arising out of or relating to any occurrence or event happening prior to the Closing Date, and any Liability under any Company Contract that arises after the Closing but that arises out of or relates to an Assumed any Breach that occurred prior to the Closing, and any such other Liability;
(j) any Liability and, subject to Section 3.24(d), except for arising out of or resulting from the Company's compliance or noncompliance with any Legal Requirement or Order of any Governmental Body;
(k) any Liability of a Purchased Subsidiary the Company under this Agreement or any other than pre-closing Taxes described document executed in Section 2.4(b)(i);connection with the Contemplated Transactions; and
(dl) if any Liability of the Closing occurs, any brokerage or finder’s fees or commissions or similar payments Company based upon any agreement Seller's acts or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if omissions occurring after the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained LiabilitiesDate.
Appears in 1 contract
Samples: Share Purchase Agreement (Pay88)
Indemnification and Reimbursement by Sellers. (a) Subject to Section 8.4, Sellers will shall jointly and severally indemnify, defend indemnify and hold harmless Buyer, Buyer and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer IndemniteesIndemnified Persons”), and will reimburse the Buyer Indemnitees Indemnified Persons, for any loss, Liabilityliability, claim, damage, damage and expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), including any diminution of value, whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(ai) any breach Breach of any representation or warranty made by such any Seller in this Agreement (i) this without taking into account any supplement to the Disclosure Schedules), the Disclosure Schedules or any Local Country Purchase Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(bii) any breach Breach of any covenant or obligation of such any Seller in this Agreement or in any other Local Country Purchase Agreement, certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(ciii) if the Closing occurs, any Liability arising out of the ownership or operation of the Acquired Assets or Business prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary Time other than pre-closing Taxes the Assumed Liabilities;
(iv) any Retained Liabilities;
(v) any Excluded Assets;
(vi) the litigation matters described in Section 2.4(b)(ion Schedule 8.2(a)(vi);
(dvii) if any Liability related to or arising out of disputes with shareholders or option holders of any Seller, including, without limitation, any claim that GES is not, or is not entitled to be, the registered holder and beneficial owner of all issued and outstanding equity interests in GES Vietnam; and
(viii) any Third-Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of Sellers or for any such Seller, any of its Related Persons (other than the Acquired Assets or Assumed Liabilities), conducted, existing or arising on or prior to the Closing occursDate.
(b) Notwithstanding any other provision of this Agreement to the contrary, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any the exceptions only of the Contemplated Transactions;
(e) if Fundamental Representations, fraud on the Closing occurs, (i) part of any Seller Benefit Plan other than a Purchased Subsidiary Planor the indemnification obligations of the Sellers specified in Sections 8.2(a)(iv), 8.2(a)(v), 8.2(a)(vi) and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if Certain information in this document has been omitted and filed separately with the Closing occurs, any Retained LiabilitiesSecurities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions marked [***].
Appears in 1 contract
Samples: Asset Purchase Agreement (Kimball Electronics, Inc.)
Indemnification and Reimbursement by Sellers. Sellers will jointly and severally indemnify, defend indemnify and hold harmless Buyer, Buyer and its Representativesaffiliates, shareholdersofficers, subsidiaries directors, stockholders, agents and Related Persons each of their respective heirs, successors, assigns and executors (collectively, the “Buyer IndemniteesIndemnified Persons”), and will reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), ) whether or not involving a Third Third-Party Claim (without giving effect to any “Material Adverse Effect” or other materiality qualification or any similar qualification contained or incorporated directly or indirectly in any representation or warranty for purposes of determining the dollar amount of Damages (collectively, “Damages”) ), arising from or in connection with:
with (a) any breach of any representation or warranty made by such Seller Sellers in this Agreement (i) this Agreement, (ii) as the Seller same are modified by the Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate Schedule and any updates thereto delivered pursuant to Section 2.9(a)(ix5.5 to the extent set forth in Section 5.5), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(b) any breach of any covenant or obligation of such Seller Sellers in this Agreement or in any other certificateAgreement, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i);
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller Sellers (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;
, (d) any noncompliance with any bulk sales laws or fraudulent transfer law in respect of the Contemplated Transactions; (e) if any Retained Liabilities, (f) any claim by any Person with respect to plaintiff’s claims in the Closing occursPending Litigation, (g) any Damages, including legal fees incurred as a result of being joined as a necessary party to any litigation under the P&G License, (h) out of pocket expenses incurred in connection with the performance of obligations as a “LICENSOR” under Section 3.2 of the Spa License Agreement or (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if error in the Closing occurs, any Retained Liabilitiescalculation of Net Receivable.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers will Sellers, jointly and severally indemnifyseverally, defend will indemnify and hold harmless Buyer, the Acquired Company, and its respective Representatives, shareholdersstockholders, subsidiaries controlling persons, and Related Persons affiliates (collectively, the “Buyer Indemnitees”"Indemnified Persons"), and will reimburse Buyer Indemnitees the Indemnified Persons, for any loss, Liabilityliability, claim, damage, (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses)' fees) or diminution of value, whether or not involving a Third Party Claim third-party claim (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller Sellers in this Agreement (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) without giving effect to any supplement to the Seller Disclosure Letterschedules or exhibits), (iv) the schedules and exhibits, the supplements to the Schedule, the certificate delivered pursuant to Section 2.9(a)(ix2.3(a)(xi) (for this purpose, that certificate will be deemed to have stated that Sellers' representations and warranties in this Agreement are accurate as of the Closing Date as if made on the Closing Date without giving effect to any supplement to the schedules and exhibits, unless the certificate expressly stated that the matters disclosed in a supplement have caused the condition specified in Section 7.1 not to be satisfied), (v) any transfer instrument or (vi) any other certificate, document, writing certificate or instrument document delivered by such Seller Sellers pursuant to this Agreement;
(b) any breach Breach by any Seller of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if any product sold by or any services provided by the Closing occurs, any Liability arising out of the ownership or operation of the Assets Acquired Company prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)Closing Date;
(d) if the Closing occurs, any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, made by any such Person with such any Seller or the Acquired Company (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;; or
(e) if all obligations and liabilities known or unknown, contingent or otherwise, relating in any way to the operation of the Existing Practice on or before the Closing occurs, (i) Date except for those liabilities expressly assumed by Buyer under Section 2.1(d). The remedies provided in this Section 10.2 will not be exclusive of or limit any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if remedies that may be available to Buyer or the Closing occurs, any Retained Liabilitiesother Indemnified Persons.
Appears in 1 contract
Samples: Stock Purchase Agreement (Integrated Orthopedics Inc)
Indemnification and Reimbursement by Sellers. Sellers will jointly and severally indemnify, defend and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer Indemnitees”), and will reimburse Buyer Indemnitees for any loss, Liability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Party Claim (collectively, “Damages”) arising from or in connection with:
(a) any breach of any representation or warranty made by such Seller in (i) this AgreementSellers, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(b) any breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Timejointly and severally, except to the extent such Liability arises out of or relates to an Assumed Liability andprovided in subsection (b) below, subject to Section 3.24(d)will indemnify Buyer and its Affiliates, except and their respective officers, directors, employees, successors and assigns (each, a “Buyer Indemnified Party”) for any Liability of all Adverse Consequences arising from (i) a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i);
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, breach by any Person with such Seller Sellers (or any Person acting on such Seller’s behalfof them) of their representations and warranties in connection with this Agreement (excluding any breach of the Contemplated Transactions;
representations and warranties addressed in clause (eb) if the Closing occursbelow), (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-a breach by the Company of its covenants and agreements in this Agreement to be performed prior to the Closing Liability or (iii) the Covered Items (subject to the limitations set forth in Section 7.3(b), and irrespective of matters disclosed in the Disclosure Schedule or correctness or accuracy the representations and warranties made hereunder (i.e., the fact that a representation or warranty with respect to a Covered Item is not breached does not limit Buyer's right to indemnity with respect thereto)). Any indemnification obligations arising under any Purchased Subsidiary Plan; orthis Section 7.1(a) will be satisfied solely through the application of funds comprising the Escrow Fund in accordance with the Escrow Agreement.
(fb) if Each Seller will severally indemnify the Closing occursBuyer Indemnified Parties and each other Seller for all Adverse Consequences arising from a breach by such Seller of his or its representations or warranties set forth in Sections 2.1(c) and 2.11(a) of this Agreement and from a breach by such Seller of his or its covenants or agreements in this Agreement. Any indemnification obligations to a Buyer Indemnified Party arising under this Section 7.1(b) will be satisfied solely through the application of funds comprising the Escrow Fund in accordance with the Escrow Agreement; provided, however, that notwithstanding anything contained herein to the contrary, no indemnification obligations to a Seller arising under this Section 7.1(b) may be satisfied through the application of funds comprising all or any Retained Liabilitiesportion of the Escrow Fund.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers will Sellers, jointly and severally indemnifyseverally, defend in solidarity, will indemnify and hold harmless Buyer, the Acquired Company, and its respective Representatives, shareholdersstockholders, subsidiaries controlling persons, and Related Persons affiliates (collectively, the “Buyer Indemnitees”"Indemnified Persons"), and will reimburse Buyer Indemnitees the Indemnified Persons, for any loss, Liabilityliability, claim, damage, (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses)' fees) or diminution of value, whether or not involving a Third Party Claim third-party claim (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller Sellers in this Agreement (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) without giving effect to any supplement to the Seller Disclosure Letterschedules or exhibits), (iv) the schedules and exhibits, the supplements to the schedules and exhibits, the certificate delivered pursuant to Section 2.9(a)(ix2.3(a)(xi) (for this purpose, that certificate will be deemed to have stated that Sellers' representations and warranties in this Agreement are accurate as of the Closing Date as if made on the Closing Date without giving effect to any supplement to the schedules and exhibits, unless the certificate expressly stated that the matters disclosed in a supplement have caused the condition specified in Section 7.1 not to be satisfied), (v) any transfer instrument or (vi) any other certificate, document, writing certificate or instrument document delivered by such Seller Sellers pursuant to this Agreement;
(b) any breach Breach by any Seller of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if any product sold by or any services provided by the Closing occursAcquired Company, any Liability arising out of including the ownership or operation of the Assets Existing Practice, prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)Closing Date;
(d) if the Closing occurs, any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, made by any such Person with such any Seller or the Acquired Company (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;; or
(e) if all obligations and liabilities known or unknown, contingent or otherwise, relating in any way to the operation of the Existing Practice on or before the Closing occurs, (i) Date except for those liabilities expressly assumed by Buyer under Section 2.1(d). The remedies provided in this Section 10.2 will not be exclusive of or limit any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if remedies that may be available to Buyer or the Closing occurs, any Retained Liabilitiesother Indemnified Persons.
Appears in 1 contract
Samples: Stock Purchase Agreement (Integrated Orthopedics Inc)
Indemnification and Reimbursement by Sellers. (a) After the Closing, subject to the limitations and procedures of this Article 8, Sellers will will, jointly and severally indemnifyseverally, defend and hold harmless Buyer, indemnify Buyer and its Representatives, shareholders, subsidiaries Affiliates and Related Persons Representatives (collectively, the “Buyer IndemniteesIndemnified Parties”)) from, and will reimburse the Buyer Indemnitees for any lossIndemnified Parties for, Liability, claim, damage, expense (including costs all Adverse Consequences to the extent arising out of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Party Claim (collectively, “Damages”) arising from or in connection with:
(a) any breach of any representation or warranty made by such Seller in related to: (i) this Agreement, a breach by Sellers of any of the representations and warranties set forth in Article 2; (ii) a breach by Sellers of any of their covenants or agreements in this Agreement (other than the Seller Disclosure Lettercovenants and agreements in Section 5.2 and Section 5.8), but solely to the extent that such breach (or the facts, event, circumstances or conditions giving rise to such breach) occur after the Closing; (iii) income Taxes based on operations of the amendment(s) Company and Subsidiaries before the termination of Company’s and Subsidiaries’ S Corporation tax status resulting from the Closing, and Pre-Closing Taxes not yet due and payable on or supplement(s) before the Closing Date solely to the Seller Disclosure Letter, extent not included in the calculation of the Final Closing Cash Payment; (iv) any Adverse Consequences associated with the certificate delivered pursuant Canadian GST Audit referred to in Section 2.9(a)(ix), 5.7(k) or any Adverse Consequences relating to any pre-Closing Canadian Goods and Services Tax Liabilities of the Company or Subsidiaries; (v) Adverse Consequences resulting from any transfer instrument Liabilities associated with any of the Excluded Assets; or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(b) any breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective TimeFiduciary Obligations, except to the extent such Liability arises resulting from Buyer’s or Company’s intentional misconduct after the Closing.
(b) After the Closing, subject to the limitations and procedures of this Article 8: (i) each Seller will severally, but not jointly, indemnify the Buyer Indemnified Parties from, and will reimburse the Buyer Indemnified Parties for, all Adverse Consequences to the extent arising out of or relates related to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i);
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, breach by any Person with such Seller (or of any Person acting on of such Seller’s behalf) representations and warranties set forth in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, Article 3; and (ii) each Seller will severally, but not jointly, indemnify the Buyer Indemnified Parties from, and will reimburse the Buyer Indemnified Parties for, all Adverse Consequences to the extent arising out of or related to a breach by such Seller of any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained Liabilitiesof such Seller’s covenants or agreements in Section 5.2 or Section 5.8.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers will and Company shall, jointly and severally indemnifyseverally, defend indemnify and hold harmless Buyer, and its Representatives, shareholders, subsidiaries directors, officers, employees, agents, subsidiaries, and Related Persons affiliates (collectively, the “"Buyer Indemnitees”Indemnified Persons"), and will shall reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ ' fees and expenses)) or diminution of value, whether or not involving a Third Party Claim (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such any Seller or Company in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) Agreement and any other certificate, document, writing or instrument delivered by such any Seller or Company pursuant to this Agreement;
(b) any breach Breach of any covenant or obligation of such any Seller or Company in this Agreement or in any other certificate, document, writing or instrument delivered by such any Seller or Company pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Company or its business or Assets prior to the Effective TimeClosing Date;
(d) any product or any services sold, except included in Inventory, or otherwise provided by, Company, in whole or in part, prior to the extent such Closing Date, including claims for Breach of warranty or product Liability;
(e) any Liability under any Company Contract entered into prior to the Closing Date, including any Liability arising out of or relating to Seller's credit facilities or any security interest related thereto;
(f) any Liability for Taxes, including (i) any Taxes arising as a result of the Company's operation of its Business or ownership of its Assets prior to the Closing Date, and (ii) any Taxes that will arise as a result of the sale of the Seller Shares pursuant to this Agreement;
(g) any Liability relating to payroll, vacation, sick leave, workers' compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits or any other employee plans or benefits of any kind for Company's employees or former employees or both;
(h) any Liability relating to the payment of all wages and other remuneration due to any Company employees with respect to their services as employees of Company through the close of business on the Closing Date, including pro rata bonus payments and all vacation pay earned prior to the Closing Date and the payment of any termination or severance payments and the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of Employee Retirement Income Security Act of 1974.
(i) any Liability arising out of any Proceeding commenced after the Closing Date and arising out of or relating to any occurrence or event happening prior to the Closing Date, and any Liability under any Company Contract that arises after the Closing but that arises out of or relates to an Assumed any Breach that occurred prior to the Closing, and any such other Liability;
(j) any Liability and, subject to Section 3.24(d), except for arising out of or resulting from Company's compliance or noncompliance with any Legal Requirement or Order of any Governmental Body;
(k) any Liability of a Purchased Subsidiary Company under this Agreement or any other than pre-closing Taxes described document executed in Section 2.4(b)(i);connection with the Contemplated Transactions; and
(dl) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments Liability of Company based upon any agreement Seller's acts or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if omissions occurring after the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained LiabilitiesDate.
Appears in 1 contract
Samples: Stock Purchase Agreement (Dubrovskaya Olga Amuofyevna)
Indemnification and Reimbursement by Sellers. Sellers Each Seller will jointly and severally indemnify, defend indemnify and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer Indemnitees”), and will reimburse Buyer Indemnitees for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) supplements to the Seller Disclosure Letter, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix2.8(a)(viii), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(b) any breach Breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)Liability;
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained Liabilities.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers will Subject to the proviso at the end of this Section 10.2, each Seller, jointly and severally indemnifyseverally, defend shall indemnify and hold harmless BuyerPurchaser, DIA (after the DE Closing) and its Representativeseach Designee, shareholders, subsidiaries and Related Persons if any (collectively, the “Buyer IndemniteesPurchaser Indemnified Persons”), against, and will shall reimburse Buyer Indemnitees for the Purchaser Indemnified Persons for, any loss, Liabilityliability, claim, demand, obligation, judgment, damage, cost, fee, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), penalties or fines, whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach of any representation or warranty made by such any Seller in (i) this AgreementAgreement or the Agreement and Plan of Merger, (ii) the Seller Disclosure LetterSchedules, as supplemented at or prior to Closing pursuant to Section 4.8, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix1.9(f) hereof or Section 4.2(d) of the Agreement and Plan of Merger (for this purpose, each such certificate under this Agreement will be deemed to have stated that each Seller’s representations and warranties in this Agreement fulfill the requirements of Section 7.1 as of the Closing Date as if made on the Closing Date after giving effect to any supplement to the Disclosure Schedules delivered to Purchaser pursuant to Section 4.8 at or prior to Closing and, in the case of the certificates delivered under the Agreement and Plan of Merger, each such certificate will be deemed to have stated that each Seller’s representations and warranties in the Agreement and Plan of Merger fulfill the requirements of Article 10 thereof relating to its respective representations and warranties as of the date of the DE Closing as if made on the date of the DE Closing after giving effect to any supplement to the Disclosure Schedules delivered to Purchaser at or prior to the DE Closing), (v) any transfer instrument instrument, or (vi) any other certificate, document, writing or instrument delivered by such any Seller pursuant to this AgreementSection 1.9 hereof or under Section 4.2 of the Agreement and Plan of Merger;
(b) any breach of any covenant or obligation of such any Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such any Seller pursuant to this AgreementSection 1.9;
(c) if any breach of any covenant or obligation of DIA or Focus DE in the Closing occursAgreement and Plan of Merger or in any certificate, any Liability arising out writing or instrument delivered by DIA or Focus DE pursuant to Section 4.2 of the Agreement and Plan of Merger; (d) the ownership or operation of any of the Assets Assets, or any act or omission of any Seller, prior to the respective Effective TimeTimes under this Agreement and the Agreement and Plan of Merger, except to other than the extent such Liability arises out of or relates to an Assumed Liability Liabilities and, subject to Section 3.24(d)after the effective time of the DE Closing, except for any Liability of a Purchased Subsidiary other than pre-closing Taxes the Focus DE Assumed Liabilities and the DIA Retained Liabilities as described in Section 2.4(b)(i)the Agreement and Plan of Merger;
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Health Corp /De/)
Indemnification and Reimbursement by Sellers. (a) After the Closing, subject to the provisions, limitations and procedures of this Article 8, Sellers will will, jointly and severally indemnifyseverally, defend and hold harmless Buyer, indemnify Buyer and its Representatives, shareholders, subsidiaries Affiliates and Related Persons Representatives (collectively, the “Buyer IndemniteesIndemnified Parties”)) from, and will reimburse the Buyer Indemnitees for any lossIndemnified Parties for, Liability, claim, damage, expense (including costs all Adverse Consequences to the extent arising out of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Party Claim (collectively, “Damages”) arising from or in connection withrelated to:
(ai) any a breach by Sellers of any representation or warranty made by such Seller of the representations and warranties set forth in (i) this Agreement, Article 2;
(ii) the Seller Disclosure Lettera breach by Sellers of any of their covenants or agreements in this Agreement (other than covenants and agreements of Sellers set forth in Section 5.2 or Section 5.9, which are addressed in Section 8.2(b) below);
(iii) Taxes based on operations of the amendment(s) Tiffin Group and Subsidiaries and Pre‑Closing Taxes not yet due and payable on or supplement(s) before the Closing Date solely to the Seller Disclosure Letter, extent not included in the calculation of the Final Closing Cash Payment;
(iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(b) any breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective TimeExcluded Assets, except to the extent such Liability arises resulting from acts or omissions of Buyer or Buyer’s Affiliates (including, after the Closing, Tiffin Group and Subsidiaries); or
(v) payments required to be made by Tiffin Motor Homes, or its successors, as guarantor pursuant to the agreement identified on Schedule 8.2(a)(v).
(b) After the Closing, subject to the provisions, limitations and procedures of this Article 8, each Seller will severally, but not jointly, indemnify the Buyer Indemnified Parties from, and will reimburse the Buyer Indemnified Parties for, all Adverse Consequences to the extent arising out of or relates related to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i);
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, breach by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, of: (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, of such Seller’s representations and warranties set forth in Article 3; or (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; orof such Seller’s covenants or agreements in Section 5.2 or Section 5.9.
(fc) if After the Closing occursClosing, any Retained Liabilitiessubject to the provisions, limitations and procedures of this Article 8, the Sellers will, jointly and severally, indemnify the Buyer Indemnified Parties from, and will reimburse the Buyer Indemnified Parties for, the matters and amounts identified on Schedule 8.2(c), in accordance with, and subject to, the procedures set forth thereon.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers Amarin and APCL will jointly and severally indemnify, defend each indemnify and hold harmless Buyer, and its Representativesofficers, shareholdersdirectors, subsidiaries employees and Related Persons Affiliates (collectively, the “Buyer IndemniteesIndemnified Persons”), and will reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), ) whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller Amarin or APCL in (i) this Agreement, (ii) the Seller Disclosure LetterSchedules (other than the Pro Forma Balance Sheet), (iii) the amendment(s) or supplement(s) supplements to the Seller Disclosure LetterSchedules, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix)2.6 (for this purpose, each such certificate will be deemed to have stated that Amarin’s representations and warranties in this Agreement fulfill the requirements of Section 8.1 as of the Closing Date as if made on the Closing Date, (v) any transfer instrument instrument, or (vi) any other certificate, document, writing or instrument delivered by such Seller Amarin or APCL pursuant to this Agreement except for the Zelapar Development Agreement, the CRO Agreement (as defined in the Zelapar Development Agreement) and the Repurchase Agreements (collectively, the “Excluded Agreements”), and subject to the further limitation that none of items (ii) through (vi) above shall be deemed to include the API Closing Balance Sheet;
(b) any breach Breach of any covenant or obligation of such Seller Amarin or APCL in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller Amarin or APCL pursuant to this AgreementAgreement except for the Excluded Agreements;
(c) if the Closing occurs, any Liability arising out of the ownership ownership, operation, or operation use of the PCP Product Assets or Amarin Product Rights prior to the Effective TimeClosing Date, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes the Liabilities of API (described in Section 2.4(b)(i)2.3(b) hereof) and the Assumed Liabilities;
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller Amarin or APCL (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;
(e) any noncompliance with any fraudulent transfer law in respect of the Contemplated Transactions;
(f) any Employee Plan established or maintained by Amarin and only if the Damages are a direct result of action or inaction by API that occurred prior to the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary PlanDate; or
(fg) if any Breach of any covenant or obligation of Amarin in any of the Closing occursExcluded Agreements, any Retained Liabilitiesbut only to the extent that such Breach is a result of the gross negligence or willful misconduct of Amarin.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers will Each Seller, jointly and severally severally, will indemnify, protect, defend and hold harmless Buyer, and its their Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer IndemniteesIndemnified Persons”)) from and against, and will reimburse the Buyer Indemnitees for Indemnified Persons for, any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such any Seller in (i) this Agreement, and (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix)2.7, or (viii) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreementinstrument;
(b) any breach Breach of any covenant or obligation of such any Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such any Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Transferred Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary Closing Date other than pre-closing Taxes described in Section 2.4(b)(i)the Assumed Liabilities;
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any Liability arising out of the Contemplated Transactionsownership or operation of the Excluded Assets;
(e) if any Liability relating to or associated with any product or component thereof manufactured by or shipped, or any services provided by, Sellers, in whole or in part, prior to the Closing occursDate;
(f) any Liability arising out of or relating to unfair labor practice charges filed with the National Labor Relations Board or other Governmental Body based on any act or omission by Sellers on or prior to the Closing Date;
(g) any Environmental Liabilities arising out of or relating to: (i) the ownership or operation by any Person at any time on from January 10, 2007 through to the Closing Date of the Plant, other Transferred Assets or the Business, (ii) any Hazardous Materials or other contaminants that were present on or transported from the Plant or Transferred Assets at any time from January 10, 2007 through to the Closing Date, or (iii) any material violation or Breach by any Person on or prior to the Closing Date of any Environmental Law or environmental Governmental Authorizations applicable to Sellers or the Transferred Assets;
(h) any bodily injury (including illness, disability and death, and regardless of when any such bodily injury occurred was incurred, or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any Person or any Transferred Assets arising from or allegedly arising from any Hazardous Activity conducted by any Person with respect to the Business of any Seller or the Transferred Assets prior to the Closing Date or from any Hazardous Material that was (i) present on or before the Closing Date on or at the Plant (or present on any other property, if such Hazardous Material emanated or allegedly emanated or was transported or allegedly transported from the Plant and was present at the Plant, on or prior to the Closing Date) or (ii) Released or allegedly Released by any Person on or at the Plant at any time on or prior to the Closing Date; or
(i) any Seller Benefit Plan Retained Liabilities. Sellers will be entitled to control any Remedial Action, any Proceeding relating to an Environmental Claim, any other than a Purchased Subsidiary PlanProceeding with respect to which indemnity may be sought under this Section 11.2; provided, however, Sellers will consult with Buyer with respect to any such matters. Notwithstanding anything to the contrary herein, it is the intention of Sellers and Buyer that Sellers shall retain full responsibility for, and (ii) shall indemnify, protect, defend and hold Buyer harmless from and against, all Environmental Liabilities related to Plant or any pre-other Transferred Assets, arising at any time out of, relating to or based upon acts, omissions, facts, events or occurrences existing, occurring or commencing on January 10, 2007 through to the Closing Liability Date, subject, however, to the limitations set forth in this Article XI and to Buyer’s obligation to mitigate any such Damages under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained Liabilitiesapplicable Legal Requirement.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. From and after the Closing, Sellers will shall, without duplication, jointly and severally indemnify, defend indemnify and hold harmless Buyer, Buyer and its Representatives, shareholders, subsidiaries Agent and Related Persons their respective affiliates (collectively, the “"Buyer Indemnitees”Indemnified Persons"), and will reimburse Buyer Indemnitees for any their out-of-pocket loss, Liabilityliability, claim, damage, damage or expense (including costs of investigation and defense and reasonable attorneys’ ' fees and expenses)) but excluding any consequential, special or punitive damages, whether or not involving a Third Third- Party Claim (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller Sellers in (i) this Agreement, Agreement (ii) the Seller Disclosure LetterSchedules, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix2.7 (for this purpose, each such certificate will be deemed to have stated that Sellers' representations and warranties in this Agreement fulfill the requirements of Section 8.1), (viv) any transfer instrument or (viv) any other certificate, document, writing or instrument delivered by such Seller Sellers pursuant to this Agreement;
(b) any breach Breach of any covenant or obligation of such Seller Sellers in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller Sellers pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i);
(d) if the Closing occurs, any brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller Sellers (or any Person acting on such Seller’s its behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(fd) if the Closing occurs, any Retained Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification and Reimbursement by Sellers. Sellers will Notwithstanding the Closing and subject to Sections 11.3, 11.5, 11.7 and 11.9, Sellers, jointly and severally indemnifyseverally, defend will indemnify and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer IndemniteesIndemnified Persons”), and will reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liabilityliability, claim, damage, damage or expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such any Seller in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) supplements to the Seller Disclosure Letter, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix2.7 (for this purpose, each such certificate will be deemed to have stated that the Sellers’ representations and warranties in this Agreement fulfill the requirements of Section 7.1 as of the Closing Date as if made on the Closing Date, but giving effect to any supplement to the Disclosure Letter as and to the extent agreed by the Parties under Section 10.15 or as to which Buyer has waived its rights under Section 10.15), (v) any transfer instrument or for the Assets sold pursuant to this Agreement, (vi) any other certificate, document, writing or instrument certificate delivered by such any Seller pursuant to Buyer at Closing or (vii) any amendment to this Agreement;
(b) any breach Breach of any covenant or obligation of such any Seller in this Agreement or in any other certificate, document, writing transfer instrument or instrument agreement delivered by such any Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i);
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such any Seller (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;
(d) any Special Warranty Liability or any matter disclosed in Part 11.2(d) of the Disclosure Letter;
(e) if any noncompliance with any Bulk Sales Laws or fraudulent transfer law in respect of the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary PlanContemplated Transactions; or
(f) if the Closing occurs, any Retained Liabilities.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers will Sellers, jointly and severally indemnifyseverally, defend will indemnify and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “"Buyer Indemnitees”Indemnified Persons"), and will reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ ' fees and expenses)) or diminution of value, whether or not involving a Third Third-Party Claim (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller Sellers in (i) this Agreement, including the schedules hereto (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix), 2.6 (viii) any transfer instrument or (viiv) any other certificate, document, writing or instrument delivered by such Seller Sellers pursuant to this Agreement;
(b) any breach Breach of any covenant or obligation of such Seller Sellers in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller Sellers pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary Time other than pre-closing Taxes described in Section 2.4(b)(i)the Assumed Liabilities;
(d) if the Closing occurs, any brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller Sellers (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;
(e) if any product or component thereof manufactured by or shipped, or any services provided by, either Seller, in whole or in part, prior to the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; orDate;
(f) if any noncompliance with or violation of any fraudulent transfer law in respect of the Contemplated Transactions;
(g) any liability under the WARN Act or any similar state or local Legal Requirement that may result from an "Employment Loss", as defined by 29 U.S.C. sect. 2101(a)(6), caused by any action of either Seller prior to the Closing occurs, or by Buyer's decision not to hire previous employees of Seller;
(h) any Retained Liabilities.Employee Plan established or maintained by Sellers; or
Appears in 1 contract
Indemnification and Reimbursement by Sellers. (a) In the event the Company or any of the Sellers will jointly commits a Breach of any of his, her or its representations or warranties or commits a Breach of any of his, her or its covenants or obligations contained in this Agreement and provided that Buyer makes a written claim for indemnification against the Sellers within one (1) year after the Closing Date then, subject to the limitations set forth in Section 12.2(b), each of the Sellers set forth on Exhibit G (the "Indemnifying Sellers"), severally indemnifyin the percentages and up to the amounts set forth on Exhibit G, defend agrees to indemnify and hold harmless Buyer, the Company and its their respective Representatives, shareholdersstockholders, subsidiaries controlling persons and Related Persons affiliates (collectively, the “Buyer Indemnitees”"Buyer's Indemnified Persons"), and will reimburse Buyer Indemnitees the Buyer's Indemnified Persons for any loss, Liabilityliability, claim, damage, and expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), ' fees) whether or not involving a Third Party Claim third party claim (collectively, “"Damages”) "), which the Buyer's Indemnified Persons may suffer through and after the date of the claim for indemnification, arising from or in connection withwith any Breach of any representation or warranty, or covenant made by the Company or the Sellers in this Agreement. Subject to the foregoing and the limitations set forth in Section 12.2(b), each Seller shall be solely responsible for a Breach of such Seller's representations and warranties under Section 4 hereof and no other Seller shall have any liability therefor.
(b) The obligation of the Indemnifying Sellers to indemnify the Buyer's Indemnified Persons pursuant to Section 12.2(a) shall be subject to the conditions and limitations of this Agreement including, without limitation, the following:
(ai) any breach The Buyer's Indemnified Persons shall not be entitled to indemnification hereunder unless the aggregate Damages exceed $150,000 and then such indemnification obligation shall extend only to the amount of such excess; provided, however, that if a single Breach of any representation or warranty made by such Seller has resulted in (i) this AgreementDamages exceeding $150,000, (ii) then the Seller Disclosure Letter, (iii) indemnification obligation of the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered Indemnifying Sellers pursuant to Section 2.9(a)(ix), (v12.2(a) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered shall not be limited by such Seller pursuant to this Agreement;
(b) any breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i12.2(b)(i);
(dii) if The indemnification obligation of any Management Stakeholder shall be payable in cash or at such Management Stakeholder's option, through a setoff reduction in the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any principal amount of the Contemplated TransactionsNote held by such Management Stakeholder;
(eiii) if In no event shall the Closing occursIndemnifying Sellers be required to indemnify the Buyer's Indemnified Persons for any Damages after the Indemnifying Sellers have, in the aggregate, paid indemnification obligations (iwhether in the form of cash or a setoff of the Notes) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; oraggregating $1,500,000;
(fiv) if Indemnifying Sellers shall not be required to indemnify the Closing occursBuyer's Indemnified Persons for any Breach which relates in any manner to Technair unless Buyer can demonstrate that such Breach resulted primarily from actions of the Company and/or the Sellers unrelated to this Agreement, the Contemplated Transactions or Buyer's discussions with Technair;
(v) The indemnification provided by the Sellers in this Section 12 to the Buyer's Indemnified Persons shall be the sole remedy of the Buyer's Indemnified Persons for any Retained Liabilitiesclaims relating to the Contemplated Transactions except in the event of fraud by the Sellers or the Company.
Appears in 1 contract
Samples: Stock Purchase Agreement (Emcon)
Indemnification and Reimbursement by Sellers. Sellers Each Seller will jointly and severally indemnify, defend indemnify and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer Indemnitees”), and will reimburse Buyer Indemnitees for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) supplements to the Seller Disclosure Letter, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix2.8(a)(viii), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(b) any breach Breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;; THE PORTIONS OF THIS AGREEMENT IDENTIFIED BY THE SYMBOL “[* * *]” HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)Liability;
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained Liabilities.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers will Sellers, jointly and severally indemnifyseverally, defend in solidarity (other than with respect to Sections 3.3 and 3.26 relating to each individual Seller's shares of the Acquired Company, which shall be made on a several, but not joint basis), will indemnify and hold harmless Buyer, the Acquired Company, and its respective Representatives, shareholdersstockholders, subsidiaries controlling persons, and Related Persons affiliates (collectively, the “Buyer Indemnitees”"Indemnified Persons"), and will reimburse Buyer Indemnitees the Indemnified Persons, for any loss, Liabilityliability, claim, damage, (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses)' fees) or diminution of value, whether or not involving a Third Party Claim third-party claim (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller Sellers in this Agreement (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) without giving effect to any supplement to the Seller Disclosure Letterschedules or exhibits), (iv) the schedules and exhibits, the supplements to the Schedule, the certificate delivered pursuant to Section 2.9(a)(ix2.3(a)(xi) (for this purpose, that certificate will be deemed to have stated that Sellers' representations and warranties in this Agreement are accurate as of the Closing Date as if made on the Closing Date without giving effect to any supplement to the schedules and exhibits, unless the certificate expressly stated that the matters disclosed in a supplement have caused the condition specified in Section 7.1 not to be satisfied), (v) any transfer instrument or (vi) any other certificate, document, writing certificate or instrument document delivered by such Seller Sellers pursuant to this Agreement;
(b) any breach Breach by any Seller of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if any product sold by or any services provided by the Acquired Company, including the Existing Practice, on or before the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)Date;
(d) if the Closing occurs, any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, made by any such Person with such any Seller or the Acquired Company (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;; or
(e) if all obligations and liabilities known or unknown, contingent or otherwise, relating in any way to the operation of the Existing Practice on or before the Closing occurs, (i) Date except for those liabilities expressly assumed by Buyer under Section 2.1(d). The remedies provided in this Section 10.2 for covenants of either party will not be exclusive of or limit any Seller Benefit Plan other than a Purchased Subsidiary Plan, remedies that may be available to Buyer or the other Indemnified Persons but will be exclusive with respect to representations and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained Liabilitieswarranties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Integrated Orthopedics Inc)
Indemnification and Reimbursement by Sellers. Sellers will Sellers, jointly and severally indemnifyseverally, defend shall indemnify and hold harmless Buyer, Buyer and its Representatives, shareholdersstockholders, subsidiaries controlling persons, and Related Persons affiliates (collectively, the “Buyer Indemnitees”"Indemnified Persons"), and will reimburse Buyer Indemnitees the Indemnified Persons, for any loss, Liability, claim, damage, damage and expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses' fees), whether or not involving a Third Party Claim third-party claim (collectively, “"Damages”) "), arising from or in connection withwith any of the following:
(a) any breach Breach of any representation or warranty made by such Seller Sellers in (i) this Agreement, (ii) the Seller Disclosure LetterSchedules to this Agreement, (iii) the amendment(s) or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix2.6(a)(v), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument Related Agreements delivered by such Seller Sellers pursuant to or in connection with this Agreement;
(b) any breach Breach by any Seller of any covenant or obligation of such any Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Related Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)Excluded Liabilities;
(d) if any Environmental, Health and Safety Liabilities arising out of or relating to (i) the ownership, operation or condition at any time on or prior to the Closing occursDate of any of the Facilities or any other properties or assets in which any Seller has or had an interest; (ii) any Hazardous Materials or other contaminants that were present at such Facilities or such other properties or assets at any time on or prior to the Closing Date; (iii) any Hazardous Materials or other contaminants, wherever located, that were, or were allegedly, generated, transported, stored, treated, Released or otherwise handled or any hazardous activities that were, or were allegedly, conducted by any Seller or by any other Person for whose conduct they are or may be held responsible; and (iv) any bodily injury (including illness, disability and death), personal injury, and property damage or other damage of or to any Person, in any way arising from or allegedly arising from any hazardous activity conducted or allegedly conducted with respect to such Facilities or the operations of any Seller prior to the Closing Date or from Hazardous Material that was present on or before the Closing Date on or at such Facilities or that was Released or allegedly Released at any time on or prior to the Closing Date by any Seller or its predecessors;
(e) any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, made by any such Person with such any Seller (or any Person acting on such Seller’s 's behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if without limiting the Closing occursgenerality of Section 10.2(c), any Retained Liabilitiesfailure by the Sellers to comply with all bulk sales, bulk clearance, and related legal requirements in connection with the sale of the Acquired Assets or the Contemplated Transactions.
Appears in 1 contract
Samples: Asset Purchase Agreement (West Pharmaceutical Services Inc)
Indemnification and Reimbursement by Sellers. Sellers will Sellers, jointly and severally indemnifyseverally, defend shall indemnify and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer IndemniteesIndemnified Persons”), and will reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses)) or diminution of value, whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such any Seller in (i) this AgreementAgreement (after giving effect to any mutually agreed upon (in writing) supplement to the Disclosure Schedule), (ii) the Seller Disclosure LetterSchedule, (iii) the amendment(s) or supplement(s) supplements to the Seller Disclosure LetterSchedule, (iv) the certificates delivered under Section 2.7 (for this purpose, each such certificate delivered pursuant will be deemed to have stated that Sellers’ representations and warranties in this Agreement fulfill the requirements of Section 2.9(a)(ix7.1 as of the Closing Date as if made on the Closing Date giving effect to any mutually agreed upon (in writing) supplement to the Disclosure Schedule, unless the certificate expressly states that the matters disclosed in a supplement have caused a condition specified in Section 7.1 not to be satisfied), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such any Seller pursuant to under this Agreement;
(b) any breach Breach of any covenant or obligation of such any Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such any Seller pursuant to under this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to or the Business before the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary Time other than pre-closing Taxes described in Section 2.4(b)(i)the Assumed Liabilities;
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such any Seller (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;
(e) if any product or component thereof manufactured by or shipped, or any services provided by, any Seller, in whole or in part, before the Closing occursDate;
(f) any claim by any employee of the HHS Business, any former employee or any former or existing consultant of any Sellers to any rights concerning or affecting any inventions, improvements, discoveries, trade secrets, works of authorship or information (to the extent such rights allegedly accrued while such employee or consultant was employed or retained, as applicable, by any Seller) relating to the Business;
(g) any claim arising from the use, disclosure or appropriation of any Trade Secret on or before the Closing either for the benefit of any Person (other than Sellers) or to the detriment of Sellers.
(h) any noncompliance with any fraudulent transfer law in respect of the Contemplated Transactions;
(i) any liability under the WARN Act or any similar state or local Legal Requirement that may result from an “Employment Loss”, as defined by 29 U.S.C. §2101(a)(6), caused by any action of any Seller Benefit Plan other than a Purchased Subsidiary Plan, and before the Closing or by Buyer’s decision not to hire any current or former employees of any Seller;
(iij) any pre-Closing Liability under Employee Plan established or maintained by any Purchased Subsidiary PlanSeller; or
(fk) if the Closing occurs, any Retained Liabilities; or
(l) any Liability arising out of the use after the Closing by any Seller (or any of their Affiliates) of any archival or production copy of the LIMS Data.
Appears in 1 contract
Indemnification and Reimbursement by Sellers. Sellers will will, jointly and severally severally, indemnify, defend and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons (collectively, the “Buyer Indemnitees”), and will reimburse Buyer Indemnitees for any loss, Liability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), whether or not involving a Third Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) or supplement(s) supplements to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix2.9(a)(x), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(b) any breach Breach of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to is an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)Liability;
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and ;
(iif) any pre-Closing Liability under any Purchased Subsidiary PlanExcluded Assets; or
(fg) if the Closing occurs, any Retained Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stewart & Stevenson Services Inc)
Indemnification and Reimbursement by Sellers. Sellers will jointly Sellers, severally based upon such Seller's respective percentage allocation of the Purchase Price and severally indemnifynot jointly, defend shall indemnify and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons Affiliates (collectively, the “"Buyer Indemnitees”Indemnified Persons"), and will reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ ' fees and expenses)) or diminution of value, whether or not involving a Third Third-Party Claim (but excluding any Damages not involving a Third-Party Claim based on lost profits, consequential or punitive damages) (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach of any representation or warranty made by such Seller in (i) Article 3 of this AgreementAgreement (without giving effect to any supplement to the Disclosure Schedule), (ii) the Seller Disclosure LetterSchedule, (iii) the amendment(s) or supplement(s) supplements to the Seller Disclosure LetterSchedule, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix)2.7, or (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreementinstrument;
(b) any breach of any covenant or obligation of such Seller in (i) this Agreement or in any other certificate, document, writing or instrument (ii) the certificates delivered by such Seller pursuant to this AgreementSection 2.7, or (iii) any transfer instrument;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except claim by any Person for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i);
(d) if the Closing occurs, any brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s its behalf) in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(fd) if the Closing occurs, any Retained LiabilitiesLiabilities (other than for Damages that arise from the Released Claims).
Appears in 1 contract
Samples: Asset Purchase Agreement (Regal Entertainment Group)
Indemnification and Reimbursement by Sellers. Sellers will jointly and severally indemnify, defend indemnify and hold harmless Buyer, and its Representatives, shareholders, subsidiaries and Related Persons affiliates (collectively, the “Buyer IndemniteesIndemnified Persons”), and will reimburse the Buyer Indemnitees Indemnified Persons for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses)) or diminution of value, whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(a) any breach of any representation or warranty made by such Seller Sellers in (i) this AgreementAgreement (without giving effect to any supplement to the Disclosure Schedules), (ii) the Seller Disclosure LetterSchedules, (iii) the amendment(s) or supplement(s) supplements to the Seller Disclosure LetterSchedules, (iv) the certificate certificates delivered pursuant to Section 2.9(a)(ix2.7 (for this purpose, each such certificate will be deemed to have stated that Sellers’ representations and warranties in this Agreement fulfill the requirements of Section 7.1 as of the Closing Date as if made on the Closing Date without giving effect to any supplement to the Disclosure Schedules, unless the certificate expressly states that the matters disclosed in a supplement have caused a condition specified in Section 7.1 not to be satisfied), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such Seller Sellers pursuant to this Agreement;
(b) any breach of any covenant or obligation of such Seller Sellers in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller Sellers pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Facilities or Assets prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary Time other than pre-closing Taxes described in Section 2.4(b)(i)the Assumed Liabilities;
(d) if the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller Sellers (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;
(e) if any services provided by Sellers, in whole or in part, prior to the Closing occursDate;
(f) any noncompliance with any Bulk Sales Laws or fraudulent transfer law with respect to the Contemplated Transactions;
(g) any liability under the WARN Act or any similar state or local Legal Requirement that may result from an “Employment Loss”, as defined by 29 U.S.C. sect. 2101(a)(6), caused by any action of Sellers prior to the Closing or by Xxxxx’s decision not to hire previous employees of Sellers;
(h) any Employee Plan established or maintained by Sellers;
(i) any Seller Benefit Plan other than a Purchased Subsidiary PlanLiability arising out of the matters described in Section 3.13, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; 3.14 or
(f) if the Closing occurs, any Retained Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification and Reimbursement by Sellers. Sellers will (a) Subject to the limitations contained in Sections 8.4, 8.5 and 8.6, each Seller shall, jointly and severally indemnifyseverally, defend indemnify and hold harmless Buyer, each Buyer and its Representatives, shareholders, subsidiaries Subsidiaries and Related Persons (collectively, the “Buyer IndemniteesIndemnified Persons”), and will reimburse the Buyer Indemnitees Indemnified Persons, for any loss, Liability, claim, damage, damage and expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), including any diminution of value which is reasonably foreseeable, whether or not involving a Third Third-Party Claim (collectively, “Damages”) ), arising from or in connection with:
(ai) any breach Breach of any representation or warranty made by such a Seller in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) Schedules or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) any other certificate, document, writing or instrument delivered by such a Seller or Seller Representative pursuant to this Agreement;
(bii) any breach Breach of any covenant or obligation of such a Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such a Seller or Seller Representative pursuant to this Agreement;
(ciii) if by reason of the Closing occurs, non-compliance of US Seller with applicable US state bulk sales or transfer in bulk laws in connection with the completion of the Acquisition;
(iv) any Liability arising out of the ownership or operation of the Acquired Assets or Business prior to the Effective TimeTime other than the Assumed Liabilities;
(v) any Retained Liabilities;
(vi) any Excluded Assets;
(vii) any matter set forth in Schedule 8.2(a)(vii).
(b) Subject to the limitations set forth in Sections 8.4, except 8.5 and 8.6, for so long as funds remain subject to the Escrow Agreement, Buyer Indemnified Persons shall be entitled to recover all Damages from such escrowed funds in accordance with the provisions of the Escrow Agreement and, to the extent Earn-Out Amounts remain unpaid, Earn-Out Amounts as they become due and payable. All such Liability arises out of or relates to an Assumed Liability Damages shall be paid, first, from the remaining escrowed funds, second, by set off against any Earn-Out Amount then due and payable (but not yet paid) and, subject finally, directly from Sellers or Owner Guarantors in accordance with this Agreement; provided, that Buyers shall be entitled to pursue payment on account of Damages arising from claims made pursuant to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described 8.2(a)(ii) through (vii) from whatever source and in Section 2.4(b)(i);
(d) if what order the Closing occurs, any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with such Seller (or any Person acting on such Seller’s behalf) Buyer Representative decides in connection with any of the Contemplated Transactions;
(e) if the Closing occurs, (i) any Seller Benefit Plan other than a Purchased Subsidiary Plan, and (ii) any pre-Closing Liability under any Purchased Subsidiary Plan; or
(f) if the Closing occurs, any Retained Liabilitiesits sole discretion.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fox Factory Holding Corp)
Indemnification and Reimbursement by Sellers. Sellers Each Seller, severally in proportion to its Seller's Proportion, and not jointly, will jointly and severally indemnify, defend indemnify and hold harmless Buyer, the Acquired Companies, and its their respective Representatives, shareholdersstockholders, subsidiaries controlling persons, and Related Persons affiliates (collectively, the “Buyer Indemnitees”"Indemnified Persons"), and will reimburse Buyer Indemnitees the Indemnified Persons, for any loss, Liabilityliability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses)' fees) or diminution of value, whether or not involving a Third Party Claim third-party claim (collectively, “"Damages”) "), arising from or in connection with:
(a) any breach Breach of any representation or warranty made by such Seller in (i) this Agreement, (ii) the Seller Disclosure Letter, (iii) the amendment(s) Letter or supplement(s) to the Seller Disclosure Letter, (iv) the certificate delivered pursuant to Section 2.9(a)(ix), (v) any transfer instrument or (vi) any other certificate, document, writing certificate or instrument document delivered by such Seller Sellers pursuant to this Agreement;
(b) any breach Breach by such Seller of any covenant or obligation of such Seller in this Agreement or in any other certificate, document, writing or instrument delivered by such Seller pursuant to this Agreement;
(c) if the Closing occurs, any Liability arising out of the ownership or operation of the Assets Proceeding involving an Acquired Company resulting from events occurring prior to the Effective Time, except to the extent such Liability arises out of or relates to an Assumed Liability and, subject to Section 3.24(d), except for any Liability of a Purchased Subsidiary other than pre-closing Taxes described in Section 2.4(b)(i)Closing;
(d) if any product liability claims relating to any product shipped, manufactured or sold by, or any services provided by, any Acquired Company prior to the Closing occurs, Date; or
(e) any claims by any retired or former employee of an Acquired Company whose employment terminated prior to the Closing;
(f) any claim by any Person for brokerage or finder’s 's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, made by any such Person with such a Seller or any Acquired Company (or any Person acting on such Seller’s their behalf) in connection with any of the Contemplated Transactions;
(eg) if notwithstanding the Closing occursdisclosure set forth in Part 3.19 of the Disclosure Letter, any Environmental, Health, and Safety Liabilities arising out of or relating to: (i) (A) the ownership, operation, or condition at any Seller Benefit Plan time on or prior to the Closing Date of the Facilities or any other than a Purchased Subsidiary Planproperties and assets (whether real, personal, or mixed and whether tangible or intangible) in which any Acquired Company has or had an interest, or (B) any Hazardous Materials or other contaminants that were present on the Facilities or such other properties and assets at any time on or prior to the Closing Date; or (ii) (A) any pre-Hazardous Materials or other contaminants, wherever located, that were, or were allegedly, generated, transported, stored, treated, Released, or otherwise handled by any Acquired Company or by any other Person for whose conduct they are held responsible at any time on or prior to the Closing Liability under Date, or (B) any Purchased Subsidiary PlanHazardous Activities that were, or were allegedly, conducted by any Acquired Company or by any other Person for whose conduct they are responsible; or
(fh) if any bodily injury (including illness, disability, and death, and regardless of when any such bodily injury occurred, was incurred, or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction, and deprivation of the use of real property), or other damage of or to any Person, including any employee or former employee of any Acquired Company or any other Person for whose conduct an Acquired Company is responsible, in any way arising from or allegedly arising from any Hazardous Activity conducted or allegedly conducted with respect to the Facilities or the operation of the Acquired Companies prior to the Closing occursDate, or from Hazardous Material that was (i) present or suspected to be present on or before the Closing Date on or at the Facilities (or present or suspected to be present on any Retained Liabilitiesother property, if such Hazardous Material emanated or allegedly emanated from any of the Facilities and was present or suspected to be present on any of the Facilities on or prior to the Closing Date) or (ii) Released or allegedly Released by any Acquired Company or any other Person for whose conduct they are or may be held responsible, at any time on or prior to the Closing Date; PROVIDED, HOWEVER, that in the case of indemnification for Damages incurred by Andor, the Sellers shall only be liable to Andor for 51.25% of the full amount of Damages sustained by Andor.
Appears in 1 contract
