Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI, Purchaser shall indemnify and hold harmless each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from: (a) the breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate; (b) the breach of any covenant or agreement made by Purchaser in this Agreement; (c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and (d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10: (i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and (ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount.
Appears in 1 contract
Indemnification by Purchaser. From (a) Subject to the other provisions of this Article IX, from and after the Closing Closing, Purchaser shall defend, indemnify, hold harmless, and subject reimburse Seller, its Affiliates, and each of their respective Representatives, successors, and assigns (collectively, the “Seller Group”) from and against any and all Losses, whether or not relating to any Third Party Claim, suffered, incurred, or sustained by any of them or to which any of them become subject, that arise out of, are in connection with, or relate to the provisions following (collectively, “Seller Claims”):
(i) any breach or violation of this Section 11.3 and the limitations any covenant, obligation, or agreement of Purchaser set forth in this Article XI, Agreement or any Ancillary Agreement to which Purchaser shall indemnify and hold harmless each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from:is a party;
(aii) the any breach or inaccuracy of any representation of the representations or warranty warranties made by Purchaser in Article VIthis Agreement or any Ancillary Agreement, in each case, whether such representation or warranty is made as of the Effective Date, the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained or any other date specified in such representation or warranty shall be disregarded for purposes or in any certificate delivered by Purchaser pursuant hereto;
(iii) any of determining whether such representation or warranty was breached or was inaccurate;the Assumed Liabilities; or
(iv) any Reimbursed Minimum Run Claims.
(b) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement The Seller Group shall be entitled to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject indemnification pursuant to Section 11.10:
(i9.2(a) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to any claim for indemnification pursuant to Section 9.2(a)(ii) , other than in respect of claims for indemnification of the Seller Group arising out of, in connection with, or resulting from a breach or inaccuracy of any representation of the representations and warranty set forth warranties made in Section 6.1 or Section 6.2(b5.1 (Organization and Existence), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a5.2 (Execution, Delivery, and Enforceability), Section 5.3(a) (No Violation), and Section 5.6 (Brokers) (collectively, the “Fundamental Purchaser Representations,” none of which shall be payable: limited by this clause (Ab)), only if (i) for the Losses from any individual Losses claim or series of related Losses arising out of substantially similar facts claims equal or exceed Twenty-Five Thousand Dollars ($25,000) and circumstances unless and until (ii) the aggregate amount of Losses with respect to all such Losses exceeds claims equal or exceed the De Minimis AmountDeductible, in which case the Seller Indemnified Parties shallwhereupon Purchaser shall be obligated to pay, subject to Section 9.2(c), all such amounts in excess of the other terms and provisions Deductible; provided, however, that the total indemnification amount payable by Purchaser to Seller Group pursuant to Section 9.2 shall not exceed the amount of the Purchase Price.
(c) For indemnification pursuant to Section 9.2(a)(ii), the maximum indemnification in the aggregate to which the Seller Group shall be entitled shall be equal to Forty-Seven Million One Hundred Thousand Dollars ($47,100,000); provided, however, that the maximum indemnification limitation set forth in this Section 11.3, be entitled 9.2(c) shall not apply with respect to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above Group for a breach or inaccuracy of the Deductible AmountFundamental Purchaser Representations.
Appears in 1 contract
Indemnification by Purchaser. From and after (a) Until the earlier of (i) the second anniversary of the Closing Date and (ii) the termination of this Agreement in accordance with its terms, and effective upon and subject to the provisions occurrence of this Section 11.3 and the limitations set forth in this Article XIClosing, Purchaser shall indemnify each Seller, the Sellers' Representative, Newco Holdings and hold harmless Newco and their respective affiliates and each Seller and its of their respective officers, directors, employees, agents, successors and permitted assigns, assigns (each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the an "Seller Indemnified PartiesParty") fromwith respect to, against and in respect hold each of them harmless from and against, any and all Losses imposed onLiabilities, sustainedlosses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, attorneys' and consultants' fees and expenses, and investigative, corrective, or remedial action costs) suffered, incurred or suffered sustained by any of the Seller Indemnified Partiesthem or to which any of them becomes subject (including, whether in respect without limitation, any Action brought or otherwise initiated by any of Third Party Claims or Direct Claimsthem) (a "Loss"), or otherwiseresulting from, arising out of or resulting from:
relating to (aA) the any misrepresentation or any breach or inaccuracy of any representation or warranty made by Purchaser contained in Article VIthis Agreement, unless such misrepresentation or breach shall have been waived in writing by each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a)Seller, the terms "material" Sellers' Representative, Newco Holdings and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
Newco prior to the Closing; (bB) the any breach of any covenant or agreement made by Purchaser contained in this Agreement;, unless such breach shall have been waived in writing by each Seller, the Sellers' Representative, Newco Holdings and Newco prior to the Closing; (C) (1) any collective bargaining agreement listed on Section 3.19 of the Disclosure Schedule applicable to any Fabral Employee, (2) any suit or claim of violation under the Worker Adjustment and Retraining Notification Act of 1988, as amended, for any actions taken by Purchaser, Gentek Holdings or Gentek after the Closing Date with respect to any facility, site of employment, operating unit or Fabral Employee, (3) any action taken on or after the Closing Date by Purchaser, Gentek Holdings or Gentek with respect to any Fabral Employee Plan,(4) any claim arising from events occurring after the Closing Date for payments or benefits by Fabral Employees or their respective beneficiaries under any Fabral Employee Plan; (D) the conduct of the Business or any other action or omission by Purchaser, Gentek Holdings or Gentek after the Closing Date, except, in each case, to the extent such loss arises from a fact or circumstance constituting a breach of representation or warranty made by the Sellers hereunder. To the extent that Purchaser's undertakings set forth in this Section 9.04 may be unenforceable, Purchaser shall contribute the maximum amount that it is permitted to contribute under applicable Law to the payment and satisfaction of all Losses incurred by any Indemnified Party.
(b) The indemnification obligations of Purchaser pursuant to Section 9.04(a)(A) and (B) shall not be effective until the aggregate dollar amount of all Losses which would otherwise be indemnifiable pursuant to Section 9.04(a) exceeds $300,000 (the "Threshold Amount"), and then only to the extent such aggregate amount exceeds the Threshold Amount. In addition, no claim may be made against Purchaser for indemnification pursuant to Section 9.04(a) for breaches of representations and warranties only with respect to any individual item of Loss, unless such item exceeds $25,000, nor shall any such item be applied to or considered part of the Threshold Amount. For the purposes of this Section 9.04(b), in computing such individual or aggregate amounts of claims, the amount of each claim shall be deemed to be an amount (i) net of any Tax benefit to the Indemnified Party or any affiliate thereof and (ii) net of any insurance proceeds and any indemnity, contribution or other similar payment recoverable by the Indemnified Party or any affiliate thereof from any third party with respect thereto.
(c) Payments by Purchaser pursuant to Section 9.04(a) shall be limited to the breach amount of any covenant Losses that remains after deducting therefrom (i) any Tax benefit to the Indemnified Party or agreement any affiliate thereof and (ii) any insurance proceeds and any indemnity, contribution or other similar payment recoverable by the Indemnified Party or any affiliate thereof with respect thereto. If a payment is made by Purchaser in accordance with this Section 9.04, and if in a subsequent taxable year a Tax benefit is realized by the Company Indemnified Party or XX Xxxxxxx in any affiliate thereof with which the Indemnified Party files a consolidated, combined or unitary Tax return (that was not previously taken into account to reduce an amount otherwise payable by Purchaser under this Agreement Section 9.04), the Indemnified Party shall pay to Purchaser at the time of such realization the amount of such Tax benefit to the extent that the Tax benefit would have resulted in a reduction in the amount paid by Purchaser under this Section 9.04 if the Tax benefit had been obtained in the year of such covenant or agreement is required payment. A Tax benefit will be considered to be performed realized for purposes of this Section 9.04 at the time that it is reflected on a Tax return of the Indemnified Party or complied any affiliate thereof with following which the Closing; andIndemnified Party files a consolidated, combined or unitary Tax return.
(d) An Indemnified Party shall give Purchaser notice of any matter which such Indemnified Party has reasonably determined has given or could reasonably be expected to give rise to a right of indemnification under this Agreement, within 60 days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided that failure to notify or delay in notifying Purchaser shall not release its obligations under this Section 9.04, except to the extent such failure or delay actually xxxxx Purchaser.
(e) The obligations and Liabilities of Purchaser under this Section 9.04 with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Section 9.04 ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions:
(i) If an Indemnified Party shall receive notice of any Third Party Claim, such Indemnified Party shall give Purchaser notice of such Third Party Claim within 30 days (notwithstanding the 60 day period specified in subsection (d) above) of the receipt by such Indemnified Party of such notice; provided that failure to notify or delay in notifying Purchaser shall not release its obligations under this Section 9.04, except to the extent such failure or delay actually xxxxx Purchaser;
(ii) If Purchaser acknowledges in writing its obligation to indemnify an Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then Purchaser shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to such Indemnified Party within 20 business days of the receipt of such notice from such Indemnified Party. In the event Purchaser shall exercise the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with Purchaser in such defense, and make available to Purchaser at Purchaser's expense, all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under such Indemnified Party's control relating thereto as is reasonably required by Purchaser. If Purchaser does not exercise its right to undertake any such defense against any such Third Party Claim, the Indemnified Party may assume such defense, and the reasonable costs incurred by such Indemnified Party in connection with such defense shall be added to the indemnification liability obligations of Purchaser under this Section 9.04. No such Third Party Claim may be settled by Purchaser without the prior written consent of the Indemnified Party, and no such Third Party Claim may be settled by any Indemnified Party without the prior written consent of Purchaser.
(f) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that which may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until or resulting from the aggregate amount of all such Losses exceeds the De Minimis Amount, causes enumerated in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; 9.04(A) or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall be an aggregate amount equal to more than 25 percent of the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountPurchase Price.
Appears in 1 contract
Samples: Stock Purchase Agreement (Euramax International PLC)
Indemnification by Purchaser. From and after the Closing and Purchaser hereby agrees that, subject to the provisions of this Section 11.3 and the limitations set forth in this Article XISections 8.1 and 8.6, Purchaser it shall, and shall indemnify cause the Companies (from and after the date that any Company becomes a Subsidiary of Purchaser) to, indemnify, defend and hold harmless each Seller and its Sellers, their Affiliates, and, if applicable, their respective directors, officers, directorsshareholders, employeespartners, agentsattorneys, successors accountants, agents and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing employees (collectively, the "Seller Indemnified PartiesSELLER INDEMNIFIED PARTIES") from, against and in respect of any damages, claims, losses, charges, actions, suits, proceedings, deficiencies, interest, penalties, and all Losses reasonable costs and expenses (including, without limitation, reasonable attorneys' fees, removal costs, remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring), net of any insurance recovery (collectively, "LOSSES") imposed on, sustained, incurred or suffered by or asserted against any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, to the extent arising out of or resulting from:
(a) the any breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, (without giving effect to any qualifications as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and to "Material Adverse Effect," "material" or similar qualifications therein) made by Purchaser contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurateArticle IV;
(b) the any breach of any covenant or agreement made by of Purchaser, including any obligation of Purchaser in this Agreement;
(c) the breach to assure performance of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary its Subsidiaries, contained in this Agreement, but subject including the obligations and commitments of Purchaser set forth in Sections 5.7(b), 5.10 and 7.2, in each case whether the matter to Section 11.10:which such covenant or agreement relates arose before or after the Effective Time; and
(c) any Third Party Claims relating to, arising out of or connected with, directly or indirectly,
(i) (A) the indemnification provided in this Section 11.3 shall be ownership or operation of any of the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the ClosingCompanies, CIPC, their respective Properties, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000Conveyed Properties or the Product Inventory or any part thereof, on and after the Effective Time; and
(ii) Except with respect to the breach ownership or inaccuracy operation of any representation of the Companies, CIPC, their respective Properties, the Conveyed Properties or the Product Inventory, or any part thereof, no matter when asserted and warranty whether pertaining to such ownership or operation before or after the Effective Time, for which ARCO's indemnity obligations shall have terminated (in accordance with Section 8.1 or otherwise) or for which ARCO has no indemnity obligation hereunder. The indemnity and defense obligation set forth in this Section 6.1 8.2 shall apply regardless of cause or Section 6.2(b), no indemnification payment with respect to of any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses negligent acts or series omissions of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the a Seller Indemnified Parties shallParty (including, subject to without limitation, the other terms and provisions sole negligence, concurrent negligence or strict liability of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the any Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountParty).
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Phillips Petroleum Co)
Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI, Purchaser shall indemnify and hold harmless and indemnify each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company Seller Indemnitees from and its Subsidiaries as against, and shall compensate and reimburse each of immediately following the Closing (collectivelySeller Indemnitees for, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, Damages that are suffered or incurred or suffered by any of the Seller Indemnified Parties, Indemnitees or to which any of the Seller Indemnitees may otherwise become subject at any time (regardless of whether in respect of Third Party Claims or Direct Claimsnot such Damages relate to any third-party claim) and that arise from, or otherwiseas a result of, arising out of or resulting fromare connected with:
(a) the breach or inaccuracy any Breach of any representation or warranty made by Purchaser in Article VI, in each case, as this Agreement or any of the Closing DateTransactional Agreements, it being understood that for purposes of this Section 11.3(a), except such Breaches as to which SCC or the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurateCompany had Knowledge at Closing;
(b) the breach any Breach of any covenant or agreement made by obligation of Purchaser in this AgreementAgreement or any of the Transactional Agreements;
(c) except for any Liability as to which SCC or the breach Company had Knowledge at Closing to which neither SCC nor the Company shall have any right to indemnification, any Liability to which any of the Seller Indemnitees may become subject and that arises from or relates to (i) the Purchased Assets subsequent to Closing, (ii) any Assumed Liability, or (iii) the operation of any covenant or agreement made by of the Company or XX Xxxxxxx in this Agreement Clubs subsequent to the extent Closing; provided, that such covenant Liability arises solely out of the operations of the Clubs by Purchaser and does not arise from or agreement is required relate, directly or indirectly, to be performed any Liability occurring or complied with following the existing on or prior to Closing; andor
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect Proceeding commenced relating to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: Breach, Liability or matter of the type referred to in clause "(A) for any individual Losses a)", "(b)" or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or "(B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) c)" above, recover all indemnifiable Losses above the Deductible Amount.
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XIDate, Purchaser shall indemnify and hold harmless each Seller and its Affiliates, each of their respective directors, officers, directorsemployees and agents, employeesand each of the heirs, agentsexecutors, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of any of the Company and its Subsidiaries as of immediately following the Closing foregoing (collectively, the "“Seller Indemnified Parties"” and together with Purchaser Indemnified Parties the “Indemnified Parties”) from, from and against and in respect of any and all Losses imposed on, sustained, incurred resulting from or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from:of
(a) the any breach or inaccuracy of any representation or warranty made by of Purchaser contained in Article VI, this Agreement or in each case, as of the Closing Date, any certificate delivered pursuant to this Agreement (it being understood that for purposes that, in determining the amount of Loss under this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such 10.3 from any breach or inaccuracy of any representation or warranty shall be disregarded warranty, but not, for the avoidance of doubt, for purposes of determining whether such representation there has been any breach or warranty was breached inaccuracy, all references to “material” or was inaccuratesimilar qualifications as to materiality shall be deleted therefrom);
(b) the any breach of any covenant or agreement made by Purchaser contained in this AgreementAgreement to be performed by Purchaser;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the ClosingAssumed Benefit Obligation; andor
(d) notwithstanding anything to the contrary contained in this Agreementother than any Loss indemnifiable by Seller under Section 10.2, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable any Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series Transferred Entity resulting from a claim of related Losses a third party arising out of substantially similar facts and circumstances unless and until or in connection with any of the aggregate amount businesses, properties, assets, operations or activities of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions any Transferred Entity or any of this Section 11.3, be entitled to indemnification for the full amount its Affiliates (including any predecessor of such Losses; Transferred Entity or (B) unless any of its Affiliates, and until such time any former business, property, asset, operation, activity or Subsidiary of any of the foregoing), heretofore, currently or hereafter owned or conducted, as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountcase may be.
Appears in 1 contract
Indemnification by Purchaser. From and after Subject to Section 10.3(b) hereof, if the Closing occurs and subject to any portion of the provisions of this Section 11.3 and the limitations set forth Purchase Price is paid in this Article XIPurchaser Shares, Purchaser shall hereby agrees to indemnify and hold harmless each Seller Hughes and its respective the Sellers and their directors, officers, directorsemployees, employeesAxxxxxxtes, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") fromharmless from and against, against and in respect of shall reimburse the Seller Indemnified Parties for, any and all Losses imposed Damages incurred thereby, directly or indirectly, based on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of of, or resulting from:
(a) the any breach of or inaccuracy of in any representation or warranty made by Purchaser in Article VIthis Agreement or any other certificate or document delivered pursuant to this Agreement, other than those, if any, that have been waived in each case, as of writing by Hughes and other than the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" representation contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurateSection 6.10 xxxxxf;
(b) the any breach of any covenant or agreement made by Purchaser inaccuracy in this Agreementthe representation contained in Section 6.10 hereof;
(c) the any breach or violation of or failure to fully perform any covenant covenant, agreement, undertaking or agreement made by the Company or XX Xxxxxxx obligation of Purchaser set forth in this Agreement to the extent Agreement, other than those, if any, that such covenant or agreement is required to be performed or complied with following the Closinghave been waived in writing by Hughes; and
(d) notwithstanding anything in the event that Hughes and the Company xx xxt enter into a tax allocation agreemenx xx xontemplated by Section 7.11 hereof, any income taxes (including interest, penalties and additions to tax) that would be imposed upon or assessed against the contrary contained in this Agreement, but subject Company or any Subsidiary thereof (other than solely pursuant to Section 11.10:
(iTreasury Regulation ss.1.1502-6 or similar provisions of state law) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses taxable periods or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject portions thereof ending on or prior to the other terms Closing Date were the Company and provisions its subsidiaries a separate group that always filed separate consolidated, combined or unitary tax returns for federal, state and local tax purposes (as applicable) and never joined in the filing of this Section 11.3a consolidated, be entitled to indemnification for the full amount of such Losses; combined or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amountunitary tax return with General Motors Corporation, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amounta Delaware corporation or Hughes.
Appears in 1 contract
Samples: Stock Purchase Agreement (Echostar Communications Corp)
Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI, (i) Purchaser shall indemnify promptly indemnify, defend, and hold harmless each Seller (and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of upon demand shall reimburse) the Company and its Subsidiaries as of immediately following the Closing Sellers against any Loss resulting from (collectively, the "Seller Indemnified Parties"i) from, against and in respect any breach by Purchaser of any of its covenants, obligations, representations or warranties or breach or untruth of any covenant, obligation, representation, warranty, fact or conclusion contained in this Agreement or any certificate or document of Purchaser delivered pursuant to this Agreement, and all Losses imposed on, sustained, incurred or suffered by (ii) any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, claim arising out of or resulting from:
(a) the breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as conduct of the Closing DateBusiness after Closing, it being understood that except for purposes failure to obtain consents, if any, for the assignment of this Section 11.3(a), the terms "material" Contracts and "Material Adverse Effect" contained in such representation except those directly or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the indirectly resulting solely from a breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx the Sellers of any representations or covenants of this Agreement. Any indemnification payment pursuant to the foregoing shall include interest at the Rate from the date the loss, costs, expenses or damages were incurred until the date of payment; provided, however, the Rate shall not be payable with respect to attorneys’ fees incurred until such date as the underlying claim is determined to be payable.
(ii) Notwithstanding anything in this Agreement to the extent contrary, the Company and each Seller agree that such covenant or agreement is required to be performed or complied with following the Closing; and
(di) notwithstanding anything to the contrary contained extent the Company, any Seller or any of their respective Affiliates have incurred any losses or damages in connection with this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided maximum aggregate liability of Purchaser and its respective Representatives and Affiliates for such losses or damages, if liable therefor, will be limited to an amount equal to Five Hundred Thousand Dollars ($500,000) in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties aggregate, except liability for fraud or intentional misconduct and (B) following in no event will the ClosingCompany, the maximum aggregate any Seller or any of their respective Affiliates seek to recover any money damages in excess of such amount of indemnifiable Losses that may be recovered from Purchaser Purchaser, or its respective Representatives and Affiliates in connection therewith. The limitation contained in this Section 7.03(b) shall not exceed $138,750,000; and
(ii) Except with respect apply to the recovery for inaccuracy in or breach of a representation or inaccuracy of any representation and warranty set forth contained in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount4.07.
Appears in 1 contract
Indemnification by Purchaser. From and after Subject to Section 10.3(b) hereof, if the Closing occurs and subject to any portion of the provisions of this Section 11.3 and the limitations set forth Purchase Price is paid in this Article XIPurchaser Shares, Purchaser shall hereby agrees to indemnify and hold harmless each Seller Xxxxxx and its respective the Sellers and their directors, officers, directorsemployees, employeesAffiliates, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") fromharmless from and against, against and in respect of shall reimburse the Seller Indemnified Parties for, any and all Losses imposed Damages incurred thereby, directly or indirectly, based on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of of, or resulting from:
(a) the any breach of or inaccuracy of in any representation or warranty made by Purchaser in Article VIthis Agreement or any other certificate or document delivered pursuant to this Agreement, other than those, if any, that have been waived in each case, as of writing by Xxxxxx and other than the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" representation contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurateSection 6.10 hereof;
(b) the any breach of any covenant or agreement made by Purchaser inaccuracy in this Agreementthe representation contained in Section 6.10 hereof;
(c) the any breach or violation of or failure to fully perform any covenant covenant, agreement, undertaking or agreement made by the Company or XX Xxxxxxx obligation of Purchaser set forth in this Agreement to the extent Agreement, other than those, if any, that such covenant or agreement is required to be performed or complied with following the Closinghave been waived in writing by Xxxxxx; and
(d) notwithstanding anything in the event that Xxxxxx and the Company do not enter into a tax allocation agreement as contemplated by Section 7.11 hereof, any income taxes (including interest, penalties and additions to tax) that would be imposed upon or assessed against the contrary contained in this Agreement, but subject Company or any Subsidiary thereof (other than solely pursuant to Section 11.10:
Treasury Regulation (iS)1.1502-6 or similar provisions of state law) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses taxable periods or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject portions thereof ending on or prior to the other terms Closing Date were the Company and provisions its subsidiaries a separate group that always filed separate consolidated, combined or unitary tax returns for federal, state and local tax purposes (as applicable) and never joined in the filing of this Section 11.3a consolidated, be entitled to indemnification for the full amount of such Losses; combined or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amountunitary tax return with General Motors Corporation, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amounta Delaware corporation or Xxxxxx.
Appears in 1 contract
Indemnification by Purchaser. From (a) If the Closing occurs, from and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XIClosing, Purchaser shall indemnify indemnify, defend and hold harmless each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, incurred or actually suffered by Seller or any of its Affiliates or its or their directors, officers, employees (each in their capacity as such) (the “Seller Indemnified Parties” and together with the Purchaser Indemnified Parties, whether in respect of Third Party Claims each an “Indemnified Party”) as a result or Direct Claims, or otherwise, arising out of or resulting from:
(ai) the breach or inaccuracy failure of any Purchaser Fundamental Representation to be true and correct as of the date such representation or warranty was made (or was deemed made);
(ii) the failure of any of the representations or warranties made by Purchaser in Article VI, in each case, VI (other than the Purchaser Fundamental Representations) to be true and correct as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in date such representation or warranty shall was made (or was deemed made);
(iii) any breach or failure by Purchaser or, at or following the Closing, Bank to perform any of its covenants or agreements contained in this Agreement; and
(iv) Purchaser’s or its Affiliate’s operation of Bank or its business or assets and liabilities following the Closing.
(b) Purchaser will not have any liability under Section 9.03(a)(ii) or Section 7.11(f) for any Losses (i) for any individual claim (together with all other claims, if any, arising out of substantially similar facts, events and circumstances) less than the De Minimis Amount and (ii) unless and until the aggregate amount of the indemnifiable Losses (excluding any claims that are not indemnifiable pursuant to Section 9.03(b)(i)) exceeds the Deductible, and then only for Losses in excess of such amount; provided that in no event will the aggregate indemnification obligation of Purchaser pursuant to Section 9.03(a)(ii) (in the aggregate) exceed the Indemnity Cap. Notwithstanding the foregoing, in no event will the aggregate indemnification obligation of Purchaser pursuant to Section 9.03(a) exceed the Final Purchase Price.
(c) For purposes of Sections 9.03(a)(i) and 9.03(a)(ii), any qualification in the text of such representation or warranty as to materiality (whether by reference to “material,” “material adverse effect” or any similar qualification) will be disregarded for purposes of determining whether such representation or warranty was breached true and correct as of the date such representation or warranty was made (or was inaccurate;
(b) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(bdeemed made), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount.
Appears in 1 contract
Indemnification by Purchaser. From Subject to Sections 7.4, 7.6, and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI7.7, Purchaser shall indemnify hereby agrees, effective as of the Closing, to indemnify, save and hold harmless each Seller and its respective successors and their permitted assigns and all of their officers, directors, employeesstockholders, agents, successors attorneys, representatives and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing employees (collectively, collectively the "Seller Indemnified Parties") from and against any Damages arising from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from:
in any manner connected with (a) the breach Assumed Obligations, (b) acts, omissions, events, conditions or inaccuracy circumstances involving or relating to the Assets or the Machine Business, or the employees or contractors of Purchaser (or its subsidiary) occurring or existing after, but not on or before, the Closing Date (other than those for which the Purchaser Indemnified Parties are entitled to be indemnified by Seller under Section 7.2), (c) the operation of any representation of the Assets, the operation of any other business in which the Purchaser (or warranty made its subsidiary) shall engage, or the sale, disposal, transportation, storage or use of products or raw materials in connection with the Machine Business by Purchaser in Article VI(or its subsidiary) after, in each casebut not on or before, as of the Closing Date, it being understood that including, without limitation, product liabilities for purposes of this products (other than the Inventories) sold by Purchaser (or its subsidiary) after, but not on or before, the Closing Date (other than matters for which the Purchaser Indemnified Parties are entitled to be indemnified by Seller under Section 11.3(a7.2), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(bd) the breach of any covenant of Purchaser contained herein or agreement made in the documents or instruments required to be delivered by Purchaser in this Agreement;
connection with the transactions contemplated hereby, (ce) the any inaccuracy in, or breach of any covenant representation or agreement made by the Company or XX Xxxxxxx in warranty of Purchaser under this Agreement to the extent that such covenant or agreement is any document or instrument required to be performed or complied delivered by Purchaser in connection with following the Closing; and
transactions contemplated hereby, and (d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (Af) the indemnification provided in this Section 11.3 shall be the sole matters for which Purchaser assumes liability under Sections 10 and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing12, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountbelow.
Appears in 1 contract
Samples: Asset Purchase Agreement (Arrhythmia Research Technology Inc /De/)
Indemnification by Purchaser. From (a) Subject to the limitations in this Article IX, effective as of and after the Closing Closing, Seller, its Affiliates, their respective directors, managers, officers, employees, consultants, investment bankers, attorneys, accountants and other advisors and representatives, and their respective successors and permitted assigns (collectively, the “Seller Indemnified Parties”) shall be entitled to be indemnified and held harmless for, from and against any and all (i) Losses actually incurred or suffered by any Seller Indemnified Party as a result of or arising from the breach of any representation or warranty contained in Article VII existing at the Closing, (ii) Losses actually incurred or suffered by any Seller Indemnified Party as a result of or arising from the breach of any covenant of Purchaser contained in this Agreement, and (iii) Assumed Liabilities (provided, that the obligations under this Section 9.3(a)(iii) shall not be subject to the provisions of this Section 11.3 and the any limitations or restrictions set forth in this Article XI, Purchaser shall indemnify and hold harmless each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from:
(a) the breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(aIX), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;.
(b) the breach of Notwithstanding any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx other provision in this Agreement to the extent that such covenant or agreement is required to contrary, the indemnification provided for in Section 9.3(a)(i) shall be performed or complied with following the Closing; and
(d) notwithstanding anything subject to the contrary contained in this Agreement, but subject to Section 11.10following limitations:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to The Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with be entitled to be indemnified or held harmless in respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable for which the Seller Indemnified Parties would recover under Section 11.3(a9.3(a)(i) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis AmountThreshold, in which case the Seller Indemnified Parties shall(as a group) shall be entitled to recover all Losses regardless of the Threshold, subject to Section 9.3(b)(ii) and Section 9.3(b)(iii) below; provided, however, that the other terms Threshold shall not apply to a misrepresentation or breach of the representations and provisions of this warranties in Section 11.37.5, Section 7.9, Section 7.10 and Section 7.11;
(ii) The Seller Indemnified Parties shall not be entitled to indemnification be indemnified or held harmless in respect of any Losses for which the full amount Seller Indemnified Parties would recover under Section 9.3(a)(i) with respect to breaches of such Losses; representations and warranties (other than the representations and warranties in Section 7.5, Section 7.9, Section 7.10 and Section 7.11) that arise from any individual item, occurrence, circumstance, act or omission (Bor series of related items, occurrences, circumstances, acts or omissions) unless and until such time as all such indemnifiable the aggregate amount of Losses paid under Section 11.3(a) shall aggregate to more than resulting therefrom exceeds the Deductible Per Claim Amount, after nor shall any Losses excluded pursuant to this clause (ii) be taken into account for purposes of determining whether the Threshold or the Cap has been exceeded in respect of claims made by the Seller Indemnified Parties; and
(iii) Purchaser’s aggregate liability for Losses with respect to breaches of representations and warranties for which time the Seller Indemnified Parties maywould recover under Section 9.3(a)(i) (excluding for this purpose the representations and warranties in Section 7.5, Section 7.9, Section 7.10 and Section 7.11) arising out of claims under this Agreement shall in no event exceed the Cap.
(c) Notwithstanding anything to the contrary herein, for purposes of this Article IX only, each representation and warranty made by Purchaser contained in this Agreement shall be deemed to be made without any qualification or limitation as to materiality (including any qualification or limitation made by reference to “material”) and, without limiting the foregoing, the word “material” and words of similar import shall be deemed deleted from any such representation or warranty.
(d) Notwithstanding anything herein to the contrary, any Claims with respect to which there is a finding or judgment of actual fraud by Purchaser by an Arbitration Panel in accordance with the terms of this Agreement shall not be subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountlimitations under this Section 9.3.
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI, Purchaser shall indemnify and hold harmless each Seller and its respective directors, officers, directors, employees, agentsadvisors, successors affiliates, agents and permitted assigns, each in its capacity as such stockholders at all times from and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following after the Closing (collectively, the "Seller Indemnified Parties") from, Date against and in with respect of to any and all Losses imposed on, sustained, incurred Claims which arise or suffered by any of result from and to the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting fromextent that are attributable to:
(a1) the Assumed Liabilities and the Operating Contracts;
(2) the untruth or breach or inaccuracy of any representation or warranty made by Purchaser pursuant to this Agreement or any other agreement or document executed and delivered by Purchaser in Article VI, in each case, as of connection with the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccuratetransactions contemplated hereby;
(b3) the breach of, or failure to perform, any of the covenants, commitments, obligations or agreements on the part of Purchaser under this EXHIBIT 2.2 Agreement or any covenant other agreement or agreement made document executed and delivered by Purchaser in this Agreementconnection with the transactions contemplated hereby;
(c4) the breach operation by Purchaser and/or Newco of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following Business after the Closing; and;
(d5) notwithstanding anything to any material difference between the contrary contained tax liability of Seller if the Operating Assets had been purchased directly by Purchaser in an asset purchase and the tax liability Seller will incur as a result of the consummation of the transactions as structured in this Agreement; provided, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closinghowever, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except have no liability with respect to the breach or inaccuracy of any representation and warranty matters set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (BSECTION 15(C)(5) unless and until such time as liability exceeds $500; and
(6) any and all such indemnifiable Losses paid under Section 11.3(a) shall aggregate demands, claims, actions, suits or proceedings, assessments, judgments, costs and legal and other expenses incident to more than any of the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount.foregoing:
Appears in 1 contract
Indemnification by Purchaser. From and after Subject to Section 15.4, if the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XIoccurs, Purchaser shall defend, indemnify and hold harmless each Seller Sellers and its respective their directors, officers, directors, employees, agents, successors employees and permitted assigns, each in its capacity as such Affiliates from and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by which any of them may incur which are the Seller Indemnified Parties, whether in respect direct and proximate result of Third Party Claims any one or Direct Claims, or otherwise, arising out more of or resulting fromthe following:
(a) the any breach or inaccuracy of any covenant or agreement on the part of any Purchaser in this Agreement or any Ancillary Agreement (other than a Commercial Agreement);
(b) any breach of a representation or warranty made by Purchaser set forth in Article VI, in each case, as 7;
(c) any of the Closing DateAssumed Liabilities; and
(d) any breach of Purchaser's covenants set forth in Sections 8.7 and 14.7 or any violation occurring on or after the Effective Time under any Transitional Environmental Permit or Replacement Environmental Permit by the Business, it being understood the Purchaser or its Affiliates; provided, however, that for purposes of this Section 11.3(a15.2(d), Losses shall include consequential and indirect damages arising from or related to Sellers' inability to operate their business of designing and manufacturing silicon and GaAs wafers at the terms "material" Xxxxxxxxxx Facility in the ordinary course as a result of the foregoing breaches or violations; provided further, however, for the avoidance of doubt, the failure of the applicable Governmental Authority to approve or to continue to approve Sellers' operation of the business of designing and "Material Adverse Effect" contained in such representation manufacturing silicon and GaAs wafers at the Xxxxxxxxxx facility during the Permit Transition Period under the Transitional Environmental Permits or warranty thereafter under Replacement Environmental Permits shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
not constitute either (i) (A) the indemnification provided a breach of Purchaser's covenants set forth in this Section 11.3 shall be the sole Sections 8.7 and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing14.7, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
or (ii) Except with respect to the breach a violation by Purchaser or inaccuracy of its Affiliates under any representation and warranty set forth in Section 6.1 Transitional Environmental Permit or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountReplacement Environmental Permit.
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject Purchaser hereby agrees to the provisions of this Section 11.3 and the limitations set forth in this Article XIindemnify, Purchaser shall indemnify defend and hold harmless each Seller and its respective Seller, Seller's officers, directors, shareholders, employees, independent contractors, agents, successors and permitted assigns, each in its capacity as such assigns and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing Brady (collectively, the "Seller Indemnified Sexxxx Parties") from, from and against and in respect of any and all Losses imposed on, sustained, incurred or suffered by (as hereinafter defined) which any of the Seller Indemnified PartiesParties actually incur which are based on, whether in respect of Third Party Claims or Direct Claimsthe result of, or otherwise, arising arise out of or resulting fromare otherwise related to any of the following:
(a) the any material breach or inaccuracy of any representation or warranty made by of Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" or Parent contained in such this Agreement, (provided, however, that Purchaser shall have no liability under this Agreement for the first $20,000 of damages arising out of or relating to any misrepresentation or breach of a warranty or representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurateby Purchaser);
(b) the any breach (other than of a representation or warranty) or failure of Purchaser to perform any covenant or agreement made required to be performed by Purchaser in it pursuant to this AgreementAgreement or any of the Other Buyer Documents;
(c) Losses resulting from the breach Premises, Purchased Assets and/or the Business from and after the Closing Date, other than Losses which result from use or operation of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement Premises Purchased Assets and/or Business prior to the extent that such covenant Closing, including without limitation, Losses which result from a claim of infringement by a third party after the Closing (but not including claims of infringement arising out of modifications or agreement is required changes to be performed or complied with following the Intellectual Property after the Closing); and
(d) notwithstanding anything the Assumed Liabilities, or Purchaser's failure to the contrary contained in this Agreementperform, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole pay and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) discharge any Assumed Liability following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount.
Appears in 1 contract
Samples: Asset Purchase Agreement (Netsmart Technologies Inc)
Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XIClosing, Purchaser shall will indemnify and hold harmless each Seller LSI from and its respective officersagainst, directorsand will compensate and reimburse LSI for, employeesany loss, agentsdamage, successors and permitted assignsinjury, each in its capacity as such and who are not officersliability, directorsclaim, employeesdemand, agentssettlement, successors and permitted assigns judgment, award, notice requirement, payment, backpay, benefits assessment, fine, penalty, tax, fee (including any legal fee, expert fee, accounting fee, or advisory fee), charge, cost (including any cost of the Company and its Subsidiaries as of immediately following the Closing (collectivelyinvestigation), the "Seller Indemnified Parties") from, against and in respect or expense of any nature that is directly or indirectly incurred by LSI or to which LSI may otherwise become subject (whether or not relating to any third-party claim) and all Losses imposed on, sustained, incurred that arises from or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claimsas a result of, or otherwise, arising out of is directly or resulting from:
(a) the breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10indirectly connected with:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closingany interviews with Available Employees conducted by Purchaser, the maximum aggregate amount ON, or any other Subsidiary of indemnifiable Losses that may be recovered ON or any decision or determination made by Purchaser, ON, or any other Subsidiary of ON regarding which Available Employees will become Specified Employees or will receive employment offers from Purchaser shall not exceed $138,750,000; andPurchaser, ON, or any other Subsidiary of ON;
(ii) Except with respect to the breach employment of the Hired Employees by Purchaser, ON, or inaccuracy any of ON’s other Subsidiaries on or after the Closing Date;
(iii) the termination of any representation and warranty Hired Employee’s employment with Purchaser, ON, or any of ON’s other Subsidiaries on or after the Closing Date;
(iv) Purchaser’s breach of any of its obligations under this Section 4.1;
(v) Purchaser’s failure to provide notice, pay, or benefits or otherwise comply with the WARN Act relating to any of the Available Employees; or
(vi) any suit or other legal proceeding related to any matter set forth in Section 6.1 or Section 6.2(bclause (i), no indemnification payment (ii), (iii), (iv), or (v) of this Section 4.1(e) (including any legal proceeding commenced by LSI for the purpose of enforcing any of its rights under this Section 4.1(e)); provided, however, that Purchaser will not be obligated to indemnify or hold harmless LSI with respect to any indemnifiable Losses otherwise payable claim asserted against LSI by any Hired Employee based upon the Transition Bonus Program (except to the extent that any such claim arises from Purchaser’s breach of any of its obligations under Section 11.3(a4.1(a)(iv) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount4.1(d)).
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject Subject to the provisions terms and conditions of this Section 11.3 and the limitations set forth in this Article XI11.4, Purchaser shall indemnify hereby agrees to indemnify, defend and hold harmless each the Seller Parties and its their respective officers, directors, employees, agents, successors and permitted assignsassigns (each a “Seller Indemnitee”) from or against, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against for and in respect of of, any and all Losses imposed onsuffered, sustained, incurred or suffered required to be paid by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, Indemnitee arising out of of, based upon, in connection with or resulting from:
as a result of: (a) any inaccuracy in or breach of any representation or warranty made by Purchaser (i) in any Transaction Document other than this Agreement, (ii) in this Agreement as of the date hereof, and (iii) with respect to any inaccuracy in or breach of any representation or warranty made by Purchaser in this Agreement as of the Closing Date, to the extent such breach or inaccuracy results from or relates to the breach or failure to perform of any of Purchaser’s covenants or agreements contained in this Agreement during the Interim Period; -50- (b) any allegation contained in any Third Party Claim that, if true, would be a breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
under any Transaction Document; (bc) the non-fulfillment, non-performance or other breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed by Purchaser pursuant to this Agreement or complied with following the Closingany other Transaction Document; and
(d) notwithstanding anything any Assumed Liabilities; (e) any arrangements or agreements made or alleged to have been made by Purchaser with any broker, finder or other agent in connection with the contrary contained transactions contemplated by this Agreement that result in this Agreement, but subject any Seller Party being liable on account thereof; and (f) any Transfer Taxes required to be borne by Purchaser pursuant to Section 11.10:
(i) (A) the indemnification provided in this 3.4 or any Apportioned Obligations allocated to Purchaser pursuant to Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount7.13. 11.4.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification by Purchaser. From and after the Closing and Purchaser hereby agrees that, subject to the provisions of this Section 11.3 and the limitations set forth in this Article XISections 8.1 and 8.6, Purchaser it shall, and shall indemnify cause the Companies (from and after the date that any Company becomes a Subsidiary of Purchaser) to, indemnify, defend and hold harmless each Seller and its Sellers, their Affiliates, and, if applicable, their respective directors, officers, directorsshareholders, employeespartners, agentsattorneys, successors accountants, agents and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing employees (collectively, the "Seller Indemnified PartiesSELLER INDEMNIFIED PARTIES") from, against and in respect of any damages, claims, losses, charges, actions, suits, proceedings, deficiencies, interest, penalties, and all Losses imposed reasonable costs and expenses (including, without limitation, reasonable attorneys' fees, removal costs, remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring), net of any insurance recovery (collectively, "LOSSES")imposed on, sustained, incurred or suffered by or asserted against any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, to the extent arising out of or resulting from:
(a) the any breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, (without giving effect to any qualifications as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and to "Material Adverse Effect," "material" or similar qualifications therein) made by Purchaser contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurateArticle IV;
(b) the any breach of any covenant or agreement made by of Purchaser, including any obligation of Purchaser in this Agreement;
(c) the breach to assure performance of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary its Subsidiaries, contained in this Agreement, but subject including the obligations and commitments of Purchaser set forth in Sections 5.7(b), 5.10 and 7.2, in each case whether the matter to Section 11.10:which such covenant or agreement relates arose before or after the Effective Time; and
(c) any Third Party Claims relating to, arising out of or connected with, directly or indirectly,
(i) (A) the indemnification provided in this Section 11.3 shall be ownership or operation of any of the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the ClosingCompanies, CIPC, their respective Properties, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000Conveyed Properties or the Product Inventory or any part thereof, on and after the Effective Time; and
(ii) Except with respect to the breach ownership or inaccuracy operation of any representation of the Companies, CIPC, their respective Properties, the Conveyed Properties or the Product Inventory, or any part thereof, no matter when asserted and warranty whether pertaining to such ownership or operation before or after the Effective Time, for which ARCO's indemnity obligations shall have terminated (in accordance with Section 8.1 or otherwise) or for which ARCO has no indemnity obligation hereunder. The indemnity and defense obligation set forth in this Section 6.1 8.2 shall apply regardless of cause or Section 6.2(b), no indemnification payment with respect to of any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses negligent acts or series omissions of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the a Seller Indemnified Parties shallParty (including, subject to without limitation, the other terms and provisions sole negligence, concurrent negligence or strict liability of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the any Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountParty).
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Atlantic Richfield Co /De)
Indemnification by Purchaser. From and after the Global Closing and subject to or the provisions of this Section 11.3 and the limitations set forth in this Article XIChina Closing, as applicable, Purchaser shall indemnify indemnify, defend and hold harmless each Seller and each of its affiliates and each of their respective officers, directors, employees, agentsstockholders, successors agents and permitted assigns, each in its capacity as such representatives (the “Seller Indemnitees”) from and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, suffered or incurred by such Seller Indemnitee (without duplication for any Loss for which indemnification may be provided under more than one provision of this Section 9.02) to the extent arising or suffered by resulting from any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting fromfollowing:
(ai) any breach as of the breach Global Closing Date or inaccuracy the China Closing Date of any representation or warranty made by of Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation this Agreement or warranty shall be disregarded any Ancillary Agreement, without giving effect, solely for purposes of determining whether the amount of any Losses associated therewith (and not, for the avoidance of doubt, for purposes of determining if such representation a breach has occurred), to any materiality or warranty was breached or was inaccuratePurchaser Material Adverse Effect qualifier contained therein;
(bii) the any breach of any covenant or agreement made by of Purchaser contained in this AgreementAgreement or any Ancillary Agreement contemplated to be performed prior to the date of such breach, provided that breaches of covenants relating to the China Business or the China Acquisition shall only be subject to indemnification following the China Closing;
(ciii) any Assumed Liability after the Global Closing (in the case of Assumed Liabilities assumed in connection with the Global Closing) and after the China Closing (in the case of Assumed Liabilities assumed in connection with the China Closing);
(iv) any breach by Purchaser (or any affiliate thereof) of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the ClosingSection 2.04(b); and
(dv) notwithstanding anything any fees, expenses or other payments incurred or owed by Purchaser or its affiliates to any agent, broker, investment banker or other firm or person retained or employed by it in connection with the contrary contained in transactions contemplated by this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount.
Appears in 1 contract
Indemnification by Purchaser. From The Purchaser covenants and agrees, from and after the Closing and subject Date, to the provisions of this Section 11.3 and the limitations set forth in this Article XIdefend, Purchaser shall indemnify and hold harmless each of the Seller Indemnified Parties from and its respective officersagainst, directorsand pay or reimburse the Seller Indemnified Parties for, employees, agents, successors (i) any and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns all liability for Taxes of the Company and its Subsidiaries as of immediately following the Group for all Post-Closing Tax Periods; (collectively, the "Seller Indemnified Parties"ii) from, against and in respect of any and all Losses imposed onarising in connection with any failure on the part of Purchaser to fulfill any obligation pursuant to Sections 4.7, sustained4.8, 4.9 or 4.14; and (iii) any and all Losses arising in connection with any failure to properly prepare and file in a timely manner any informational tax returns for the Companies for 2003; provided, however, that indemnification for any Losses incurred under clause (iii) shall not be available if such Losses shall have been caused by Seller or suffered any of its employees, representatives or agents providing inaccurate data to Purchaser or by Seller's failure to provide the information required by Section 4.7(a) within the time period described therein. The Purchaser shall not have any liability under any provision of this Agreement for any such Taxes to the extent that any such Taxes arise from actions taken on or before the Closing Date by the Seller or any of the Non-Company Group Affiliates, or from the failure on or before the Closing Date of any of them to take any required action. The Seller shall take and cause its Affiliates to take all reasonable steps to mitigate any Taxes with respect to which the Purchaser could have an indemnification obligation under this Section 4.8(b)(ii) upon any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from:
(a) the breach or inaccuracy Parties becoming aware of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall event which would be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement reasonably likely to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountgive rise thereto.
Appears in 1 contract
Indemnification by Purchaser. From Subject always to the provisions of Section 8.4 and after the Closing 8.5 and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI8.3, Purchaser shall defend, indemnify and hold harmless each Seller Crompton, the Sellers and its their Affiliates and their respective officers, directors, employeesagents and employees (individually, agents, successors a "Seller Indemnitee" and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, collectively the "Seller Indemnified PartiesIndemnitees") from, against from and in respect against: One hundred (100%) percent of any and all Losses imposed on, sustained, incurred or suffered by a Seller Indemnitee, as a result of or in connection with any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claimsbreach of, or otherwise, arising out of or resulting from:
(a) the breach misrepresentation or inaccuracy of in, any representation or warranty made by Purchaser in Article VIor pursuant to this Agreement in Sections 4.2(a), (b), (c)(i), or (e) (to the extent that the representation in each case4.2(e) relates to the Purchaser); Fifty (50%) percent of any and all Losses suffered by a Seller Indemnitee, as a result of or in connection with any breach of, or misrepresentation or inaccuracy in, any representation or warranty made by Purchaser in or pursuant to this Agreement in Sections 4.2(c)(ii), (d) or (e) (to the extent that the representation in 4.2(e) relates to the Company); One hundred (100%) percent of any and all Losses suffered by a Seller Indemnitee, as a result of or in connection with any breach of any covenant, agreement or obligation made or to be performed by Purchaser or its Affiliates under or pursuant to this Agreement provided that Purchaser shall first have notice of and an opportunity to cure within that thirty (30) days of such notice breaches relating to post-Closing covenants, agreements or obligations that are not willful, intentional or reckless; One hundred (100%) percent of any and all Losses suffered by a Seller Indemnitee, to the extent such Losses are a result of or in connection with activities of the Company or the Business after the Closing Date, including without limitation, any alleged breach or breach of contracts of the Company and its Affiliates on or after the Closing (but not contracts of the Company with Crompton and its Affiliates), or any Losses related to the employment of employees of the Company or the hiring of consultants by the Company or Purchaser, including employee benefit plans used to provide benefits to such employees or consultants, or Losses arising from any Proceeding arising from events or occurrences on or after the Closing Date, provided however, that the Seller Indemnitee shall have the burden of proving the extent to which any such Losses are the result of occurrences after the Closing Date; One hundred (100%) percent of any and all Losses suffered by a Seller Indemnitee, to the extent that such Losses result from (A) Taxes (including all information returns) assessed against the Company or its Affiliates due in respect of any period beginning on or after the Closing Date, or (B) taxes, fees, fines or penalties related to, arising out of or resulting from the failure to qualify to do business in any jurisdiction or lack of good standing in any jurisdiction due in respect of any period beginning on or after the Closing Date, or relating to a failure by the Company to amend its qualifications in jurisdictions where it being understood is qualified to do business as a foreign corporation to reflect the fact that GT Seed Treatment is no longer a member of the Company following the Closing Date; one-half (50%) of any and all Losses suffered by a Seller Indemnitee as a result of or in connection with the operation of the Business prior to the Closing Date (other than to the extent such liability is set forth or reserved for purposes in the Financial Statements), including without limitation, one-half (50%) of: any Losses arising from any Proceeding arising from events or occurrences prior to the Closing Date; any Losses arising from an alleged failure or a failure of the Company or its Affiliates to comply with Laws (other than Environmental Laws) prior to the Closing Date; any Losses arising prior to the Closing Date related to the employment of employees of the Company or the hiring of consultants by the Company, including employee benefit plans used to provide benefits to such employees or consultants; any alleged breach or breach of contracts of the Company and its Affiliates prior to the Closing; and any Losses arising from any liability arising from events or occurrences prior to, or relating to the periods prior to the Closing Date to the extent such liability is not reflected or reserved in the Financial Statements, including without limitation the litigation claims set forth on Schedule 4.1(g) and Schedule 4.2(c). one-half (50%) of any Taxes assessed against the Company or its Affiliates due in respect of any period beginning on or after November 20, 1998 through the Closing Date; and One hundred (100%) percent of any and all Losses suffered by a Seller Indemnitee, as a result of or in connection with any failure to pay the Deferred Dividend, the Initial Purchase Price or, if the Kureha Consent is delivered to Purchaser in accordance with Section 2.3, the Deferred Purchase Price. Notwithstanding Section 8.3(a), Purchaser shall not be required to indemnify the Seller Indemnitees unless such right to indemnification is asserted by Sellers or Crompton (whether or not such Losses have actually been incurred) by written notice to the Purchaser describing with reasonable specificity the facts giving rise to the asserted right within the following time periods: with respect to any matter covered by Section 8.3(a)(iv), and any fraud or intentional misrepresentation made by the Purchaser, there shall be no limitation on the time for making a Claim; with respect to any matter covered by Section 8.3(a)(iii), other than those specified in Section 8.3(b)(i) above, Tax matters or matters relating to employees or employee benefits which are dealt with in Section 8.3(b)(iii), or Environmental Liability (which is dealt with exclusively in Sections 8.4 and 8.5), on or before the later of (x) the date which is five (5) years after the Closing Date or (y) two (2) years following the breach, but in no event later than seven (7) years following Closing; with respect to Tax matters covered under Section 8.3(a)(v) or (a)(vii), or matters relating to employees or employee benefits covered under Section 8.3(a)(vi) on or before the expiration of the applicable statute of limitations for the Claim, or if the Claim is a violation of Law, the statute of limitation for the underlying Laws which form the basis of the Claim; and with respect to all other matters covered by Section 8.3(a) (other than those specified in Section 8.3(b)(i) and (b)(ii) above, Tax matters or matters relating to employees or employee benefits, which are dealt with in Section 8.3(b)(iii), and Environmental Liability, which is dealt with exclusively in Sections 8.4 and 8.5), on or before the date which is two (2) years after the Closing Date. Subject to the terms of Section 8.3(d) and (e) and Section 8.5, Purchaser (i) shall not be required to indemnify the Seller Indemnitees pursuant to Section 8.3(a) with respect to any individual Losses of less than the De Minimis Amount or with respect to the Threshold Amount of such Losses (calculated on a cumulative basis under both this Agreement and the Xxxxxxxxx Partnership Purchase Agreement and not taking into account all individual Losses of less than the De Minimis Amount), and (ii) shall indemnify the Seller Indemnitees pursuant to Section 11.3(a8.3(a) for such Losses to the extent in excess of the Threshold Amount. Except as provided by Section 8.3(d), 8.3(e) and comparable provisions of the Xxxxxxxxx Partnership Purchase Agreement so identified in the Xxxxxxxxx Partnership Purchase Agreement, Purchaser's aggregate indemnification obligations for Losses under both this Agreement and the Xxxxxxxxx Partnership Purchase Agreement shall in no event exceed the General Indemnification Cap. Notwithstanding Section 8.3(c), the terms General Indemnification Cap shall not apply to Losses (i) under Section 8.3(a)(vi) and 8.3(a)(vii) with respect to Tax matters and with respect to any matter relating to employees or employee benefits or (ii) to Losses under Section 8.5 with respect to Environmental Liability (collectively, the "material" Seller Excepted Liabilities"). Purchaser's aggregate indemnification obligations with respect to the Losses with respect to such Seller Excepted Liabilities (other than indemnification obligations under Section 8.5(a), 8.5(b)(ii), 8.5(c)(ii), 8.5(d) and "Material Adverse Effect" contained 8.5(e) which are subject to no indemnification cap or limitation) under this Agreement and Losses specified as the Canadian Seller Excepted Liabilities (other than indemnification obligations with respect to any Environmental Liability that is not subject to any indemnification cap or limitation in such representation the Xxxxxxxxx Partnership Purchase Agreement) under the Xxxxxxxxx Partnership Purchase Agreement (to the extent in excess of any Threshold Amount of Losses calculated simultaneously under this Agreement and the Xxxxxxxxx Partnership Purchase Agreement and exclusive of any individual Losses of less than the De Minimis Amounts), shall not exceed the Aggregate Indemnification Cap. Except as provided herein, Purchaser's aggregate indemnification obligations including those with respect to Losses subject to the General Indemnification Cap and the Aggregate Indemnification Cap under this Agreement and under the Xxxxxxxxx Partnership Purchase Agreement shall in no event exceed the Aggregate Indemnification Cap, and any monies paid by Purchaser on account of indemnification obligations for Environmental Matters under Section 8.5 (other than indemnification obligations under Section 8.5(a), 8.5(b)(ii), 8.5(c)(ii) and 8.5(d) which are subject to no indemnification cap or warranty limitation) and under indemnification obligations under the Xxxxxxxxx Partnership Purchase Agreement (other than those that are not subject to any indemnification cap or limitation in the Xxxxxxxxx Partnership Purchase Agreement) shall be disregarded included in the calculations for purposes of determining whether such representation or warranty was breached or was inaccurate;
(bthe Aggregate Indemnification Cap has been reached. Notwithstanding Section 8.3(c) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b8.3(d), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Threshold Amount, the General Indemnification Cap or the Aggregate Indemnification Cap shall not apply to Losses with respect to (i) any fraudulent or intentional misrepresentation, or any breach of a covenant or agreement made or to be performed by Purchaser, (ii) Losses under Section 8.3(a)(viii), or (iii) Losses under Section 8.3(a)(iv) (to the extent that the Seller Indemnified Parties shall, subject Indemnitee has met its burden of proof that such Losses resulted from post-Closing occurrences) or Section 8.3(a)(v). Notwithstanding anything to the other terms contrary herein, Purchaser shall be required to indemnify the Seller Indemnitees with respect to any Loss under Section 8.3(a)(ii), Section 8.3(a)(vi) or Section 8.3(a)(vii), only to the extent that (i) a claim for such Loss has been asserted directly against, and provisions of this Section 11.3paid by, be entitled to indemnification for the full Seller Indemnitees, and (ii) the Seller Indemnitees collectively have incurred or paid the entire amount of such Losses; . In the event that the Seller Indemnitees have collectively incurred or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than one-half (50%) of the Deductible Amounttotal amount of such a Loss but less than the entire amount of such Loss, after which time Purchaser shall only indemnify the Seller Indemnified Parties mayIndemnitees for any amount in excess of one-half (50%) of the total amount of the Loss. For purposes of this Section 8.3, subject amounts paid or payable by a Seller Indemnitee to clause (i) above, recover all indemnifiable Losses above the Deductible Amountindemnify a Purchaser Indemnitee shall not be amounts that qualify as a Loss suffered by a Seller Indemnitee.
Appears in 1 contract
Samples: Purchase Agreement (Crompton Corp)
Indemnification by Purchaser. From and after the Closing and subject Subject to the provisions of this Section 11.3 and the limitations set forth in this Article XIX, from and after the Closing, Purchaser shall indemnify Sellers and their Representatives, Subsidiaries, direct and indirect parent companies, shareholders, partners, members, managers, officers and directors (the “Seller Indemnitees”) and save and hold each of them harmless each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustainedsuffered, incurred or suffered paid, directly or indirectly, by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwisethem as a result of, arising out of of, or resulting fromrelated to:
(a) the breach or inaccuracy any failure of any representation or warranty made by Purchaser in this Agreement (whether or not contained in Article VIV) or in any schedule, exhibit or certificate delivered pursuant to this Agreement to be true and correct in each caseall respects (without giving effect to any “material”, “materially”, “materiality”, “material adverse effect” or “material adverse change” qualification contained in any such representation or warranty) on and as of the Closing Date, it being understood that for purposes date of this Section 11.3(a)Agreement and on and as of Closing Date as if made on such date (other than those made on a specified date, the terms "material" and "Material Adverse Effect" contained in such representation or warranty which shall be disregarded for purposes true and correct in all respects as of determining whether such representation or warranty was breached or was inaccuratespecified date);
(b) the any breach of any covenant or agreement made by Purchaser contained in this Agreement;; and
(c) any guarantee, covenant, indemnity, bond or similar assurance provided by Casella or any of its Affiliates (other than the breach Companies and their Subsidiaries) securing obligations of any covenant the Companies or agreement made by the Company or XX Xxxxxxx in this Agreement their Subsidiaries, but solely to the extent that of the portion of such covenant or agreement is required to be performed or complied with Loss caused by events following the Closing; and
Closing Date. For the avoidance of doubt, Purchaser’s obligations to indemnify and hold harmless Seller Indemnitees pursuant to clauses (db) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (Bc) following of the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser immediately preceding sentence shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and terminate until the aggregate amount full performance of all such Losses exceeds the De Minimis Amount, relevant covenants in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountaccordance with their terms.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Casella Waste Systems Inc)
Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI, Purchaser shall indemnify and hold harmless each Seller and its respective directors, officers, directors, employees, agentsadvisors, successors affiliates, agents and permitted assigns, each in its capacity as such stockholders at all times from and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following after the Closing (collectively, the "Seller Indemnified Parties") from, Date against and in with respect of to any and all Losses imposed on, sustained, incurred Claims which arise or suffered by any of result from and to the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting fromextent that are attributable to:
(a1) the Assumed Liabilities and the Operating Contracts;
(2) the untruth or breach or inaccuracy of any representation or warranty made by Purchaser pursuant to this Agreement or any other agreement or document executed and delivered by Purchaser in Article VI, in each case, as of connection with the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccuratetransactions contemplated hereby;
(b3) the breach of, or failure to perform, any of the covenants, commitments, obligations or agreements on the part of Purchaser under this Agreement or any covenant other agreement or agreement made document executed and delivered by Purchaser in this Agreementconnection with the transactions contemplated hereby;
(c4) the breach operation by Purchaser and/or Newco of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following Business after the Closing; and;
(d5) notwithstanding anything to any material difference between the contrary contained tax liability of Seller if the Operating Assets had been purchased directly by Purchaser in an asset purchase and the tax liability Seller will incur as a result of the consummation of the transactions as structured in this Agreement; provided, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closinghowever, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except have no liability with respect to the breach or inaccuracy of any representation and warranty matters set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (BSECTION 15(C)(5) unless and until such time as liability exceeds $500; and
(6) any and all such indemnifiable Losses paid under Section 11.3(a) shall aggregate demands, claims, actions, suits or proceedings, assessments, judgments, costs and legal and other expenses incident to more than any of the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount.foregoing:
Appears in 1 contract
Indemnification by Purchaser. From Subject to Sections 8.4, 8.6, and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI8.7, Purchaser shall indemnify hereby agrees, effective as of the Closing, to indemnify, save and hold harmless each Seller and its respective successors and their permitted assigns and all of their officers, directors, employeesstockholders, agents, successors attorneys, representatives and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing employees (collectively, collectively the "Seller Indemnified Parties") from and against any Damages arising from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from:
in any manner connected with (a) the breach Assumed Obligations, (b) acts, omissions, events, conditions or inaccuracy circumstances involving or relating to the Assets or the Business, or the employees or contractors of Purchaser (or its subsidiary) occurring or existing after, but not on or before, the Closing Date (other than those for which the Purchaser Indemnified Parties are entitled to be indemnified by Seller under Section 8.2), (c) the operation of any representation of the Assets, the operation of any other business in which the Purchaser (or warranty made its subsidiary) shall engage, or the sale, disposal, transportation, storage or use of products or raw materials in connection with the Business by Purchaser in Article VI(or its subsidiary) after, in each casebut not on or before, as of the Closing Date, it being understood that including, without limitation, product liabilities for purposes of this products (other than the Inventories) sold by Purchaser (or its subsidiary) after, but not on or before, the Closing Date (other than matters for which the Purchaser Indemnified Parties are entitled to be indemnified by Seller under Section 11.3(a8.2), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(bd) the breach of any covenant of Purchaser contained herein or agreement made in the documents or instruments required to be delivered by Purchaser in this Agreement;
connection with the transactions contemplated hereby, (ce) the any inaccuracy in, or breach of any covenant representation or agreement made by the Company or XX Xxxxxxx in warranty of Purchaser under this Agreement to the extent that such covenant or agreement is any document or instrument required to be performed delivered by Purchaser in connection with the transactions contemplated hereby, (f) the matters for which Purchaser assumes liability under Sections 11 and 14, below, and (g) any untrue statement or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject alleged information furnished by Purchaser pursuant to Section 11.10:
4.12, above, and supplied in the Disclosure Statement (i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available or amendments or supplements thereto to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from which Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth have consented in Section 6.1 or Section 6.2(bwriting), no indemnification payment with respect or any omission or alleged omission to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until state therein a material fact necessary in order to make the aggregate amount of all such Losses exceeds the De Minimis Amountstatements made therein, in light of the circumstances under which case the Seller Indemnified Parties shallthey were made, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountnot misleading.
Appears in 1 contract
Samples: Asset Purchase Agreement (Arrhythmia Research Technology Inc /De/)
Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI, (a) Purchaser shall indemnify and hold harmless each Seller Shareholder and its respective officers, Webcat's directors, employees, agents, successors officers and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing employees (collectively, the "Seller Webcat Indemnified Parties") fromharmless from and against, against and in respect agrees promptly to defend each of the Webcat Indemnified Parties from and reimburse each of the Webcat Indemnified Parties for, any and all Losses imposed onlosses, sustaineddamages, incurred or suffered by costs, expenses, liabilities, obligations and claims of any kind (including reasonable attorney's fees and other legal costs and expenses) (singularly, a "Webcat Loss" or, collectively, the "Webcat Losses") that any of the Seller Webcat Indemnified Parties, whether in respect of Third Party Claims Parties may at any time suffer or Direct Claimsincur, or otherwisebecome subject to, arising out as a result of or resulting fromin connection with:
(ai) the any breach or inaccuracy of any representation or warranty of the representations and warranties made by Purchaser in Article VIor pursuant hereto, or in any instrument, certificate or affidavit delivered by Purchaser at the Closing in accordance with the provisions hereof;
(ii) any failure by Purchaser to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations hereunder or under any of the documents and materials executed and delivered by Purchaser pursuant hereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 6.1(a).
(b) Notwithstanding any other provision hereof to the contrary, Purchaser shall not have any liability under Section 6.1(a)(i) above (i) unless the aggregate of all Webcat Losses for which Purchaser would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $25,000 (the "Basket"), and then only to the extent of such excess, (ii) for amounts in excess of $1.5 million (the "Cap"), in each casethe aggregate, as and (iii) unless Shareholder has asserted a claim with respect to the matters set forth in Section 6.1(a)(i), or 6.1(a)(iii) to the extent applicable to Section 6.1(a)(i), within 12 months of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount.
Appears in 1 contract
Indemnification by Purchaser. From and after (a) If the Closing occurs, each of the Purchasers shall, jointly and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XIseverally, Purchaser shall indemnify and hold harmless each Seller and its their respective officersgeneral partners, directorslimited partners, employeesofficers and directors of each of them, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of, and hold each of them harmless from and against any and all Losses imposed on, sustainedsuffered, incurred or suffered sustained by any of the Seller Indemnified Partiesthem or to which any of them becomes subject, whether in respect of or not involving a Third Party Claims or Direct ClaimsClaim, or otherwiseresulting from, arising out of or resulting from:
relating to (ai) any breach of the representations and warranties of the Purchasers contained in this Agreement (including, without limitation, any certificate delivered in connection herewith), (ii) any nonfulfillment of or failure to perform any covenant or agreement on the part of the Purchasers contained in this Agreement or any of the Operative Agreements (including, without limitation, any certificate delivered in connection herewith), including the existence of any Lien other than any Permitted Lien, (iii) any of the Assumed Liabilities, and (iv) any claim by any Person other than any Seller, any Affiliate of any Seller, or any equity holder or creditor of the foregoing, under applicable bankruptcy, fraudulent conveyance or transfer or similar Law or other Law, and stemming from a Purchaser or a Business Subsidiary not being solvent immediately after the Closing (as a result of the Financing or other actions taken by Purchasers or the Business Subsidiaries) and that was solvent immediately prior to the Closing, that the acquisition of the Transferred Interests and Business Assets and Assumed Liabilities by Purchasers under this Agreement were invalid or illegal or can be set aside or result in an award of damages and only if (1) the breach provisions of Section 14.01 would not provide for indemnification of Purchaser without giving effect to the provision of 14.01(b); and (2) any such claim does not relate to the Purchase Price paid to any Seller or inaccuracy of the allocation thereof; provided, (i) that if and to the extent that any representation or warranty made by Purchaser in Article VIindemnification under this Section 14.02(a) is unenforceable, in each casebut subject to 113 the same terms, as conditions, limitations and time periods applicable to such indemnification under this Agreement, the Purchasers and the Business Subsidiaries shall make the maximum contribution to the payment, and satisfaction of the Closing Date, it being understood that for purposes of indemnified Losses as shall be permissible under applicable Laws and (ii) in no event will Purchasers be liable to provide any indemnification under this Section 11.3(a)14.02(a) as to any matter to the extent that Sellers bear indemnification responsibility under Article XII hereof for such matter. For the avoidance of doubt, the terms "material" and "Material Adverse Effect" contained in such representation or warranty no Person shall be disregarded for purposes of determining whether entitled to indemnification under Section 14.02(a) with respect to a matter to the extent that any Seller would bear indemnification responsibility under Section 14.01(a) with respect to such representation or warranty was breached or was inaccurate;matter.
(b) the No amounts of indemnity shall be payable as a result of a claim under Section 14.02(a)(i) in respect of a breach of any covenant a representation or agreement made by Purchaser in this Agreement;
warranty of Purchasers (c) the breach of any covenant other than a claim based upon fraud or agreement made by the Company willful or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreementcriminal misconduct or, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(bDeductible but not the Covered Losses limitation, pursuant to the Purchaser Fundamental Representations), no indemnification payment (i) with respect to Losses arising from any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses single event or series of related events that do not exceed the Covered Losses arising out of substantially similar facts limitation amount, and circumstances (ii) unless and until the aggregate amount Indemnified Parties have suffered, incurred, sustained or become subject to Losses (other than Covered Losses) with respect thereto in excess of all such Losses exceeds the De Minimis AmountDeductible in the aggregate, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, shall be entitled to indemnification for the full amount of such LossesLosses in excess the Deductible; provided, however, that the aggregate indemnification obligation of the Purchasers for claims under (a) Section 14.02(a)(i)(other than claims based upon fraud or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(awillful or criminal misconduct or for breach of the Purchaser Fundamental Representations) shall aggregate be limited to more US$31,000,000 and (b) Section 14.02(a)(i) for all claims (other than claims based upon fraud or willful misconduct) shall be limited to the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountFinal Total Purchase Price.
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject Subject to the provisions of this Section 11.3 Article X, effective as of and after the Closing, Purchaser and the limitations set forth in this Article XI, Purchaser Transferred Entities shall indemnify and hold harmless each the Seller Parties from and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, Parties to the extent arising out of or resulting from:
from (a) the breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement made by of Purchaser contained in this Agreement that is to be performed at or after the Closing, (b) any Liability or Environmental Liability, other than Excluded Liabilities, arising in connection with Purchaser’s operation of the Business, including in any way related to any Post-Closing Contamination, as such term is defined in the Remediation and Access Agreement;
, (c) the breach of failure to pay any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement Liability when due to the extent that such covenant reflected in, reserved for or agreement is required to be performed taken into account in the determination of Working Capital or complied with following Indebtedness on the Closing; and
Final Closing Statement, and (d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
any Taxes imposed directly on (i) (Athe actions and transactions contemplated by Section 5.19(b) the indemnification provided in this Section 11.3 shall be the sole that would not have been incurred if such actions and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closingtransactions had not occurred, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect the Bifurcation that would not have been incurred if the Bifurcation was not taking place or (iii) the direct sale by Seller, its Affiliate or the Transferred Company of the equity interests of PSEG Power Connecticut LLC, PSEG New Haven LLC and PSEG Power New York LLC (in the case of this clause (iii), that would not have been incurred in the case of an indirect sale of those equity interests via a sale of PSEG Fossil LLC), for the avoidance of doubt, in each case, to the breach extent such Taxes are (x) for a taxable period or inaccuracy portion thereof ending on or before the Closing Date or (y) in the case of any representation action that occurs after the Closing Date, for a taxable period or portion thereof that includes the date such action occured (collectively, “Purchaser Restructuring Transactions”); provided that any and warranty set forth all refunds, credits, overpayments or similar items or recoveries of the Taxes described in Section 6.1 this clause (d) paid by Purchaser or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) of its Affiliates shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount benefit of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountPurchaser.
Appears in 1 contract
Indemnification by Purchaser. From (a) Subject to the terms and conditions of this Article X, from and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XIDate, Purchaser shall agrees to reimburse, defend, indemnify and hold harmless each Seller Sellers and its their present and future Affiliates (excluding the Company) and their respective managers, officers, directors, employees, agents, successors employees and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing representatives (collectively, the "“Seller Indemnified Parties"”) from, against and in respect of any and all Losses imposed onresulting from, sustainedor that exist or arise due to, incurred or suffered by any of the following (collectively, “Seller Indemnified PartiesClaims”, whether in respect of Third Party Claims or Direct and together with Purchaser Claims, or otherwise, arising out of or resulting from:the “Claims”):
(ai) the breach or prior to their expiration in accordance with Section 10.1 hereof, any inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant warranty made or agreement made given by Purchaser in this Agreement, any Transaction Document to which Purchaser is a party or any certificate delivered by Purchaser pursuant hereto, other than inaccuracies or breaches resulting from or due to any fraud, intentional misrepresentation, willful misconduct, or criminal acts committed by or on behalf of Purchaser or any of its Affiliates on or prior to the Closing;
(cii) the any breach of or failure by Purchaser to perform or comply with any covenant or agreement made by the Company or XX Xxxxxxx contained in this Agreement or any Transaction Document to which Purchaser is a party;
(iii) any Assumed Liability;
(iv) any fraud, intentional misrepresentation or criminal acts committed by or on behalf of Purchaser or any of its Affiliates on or prior to the extent that such covenant or agreement is required to be performed or complied with following the ClosingClosing Date; and
(dv) notwithstanding anything any claim alleging any of the foregoing.
(b) All amounts owing pursuant to this Section 10.3 will be paid promptly, and in any event not more than five business days following the final adjudication or determination thereof, by wire transfer of immediately available funds to the contrary contained account designated in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to writing by any Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be Party entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amountpayment, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountby Purchaser.
Appears in 1 contract
Samples: Acquisition Agreement (Richardson Electronics LTD/De)
Indemnification by Purchaser. From (a) Purchaser agrees to indemnify in full Royal Numico, Seller, and after the Closing Royal Numico's other Affiliates (and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI, Purchaser shall indemnify and hold harmless each Seller and its their respective officers, directors, employees, agentsconsultants, successors fiduciaries, agents and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing stockholders) (collectively, the "Seller Indemnified Parties") from, and shall defend and hold the Seller Indemnified Parties harmless against and in respect of any and all Losses imposed on, sustained, incurred or suffered by which any of the Seller Indemnified PartiesParties suffer, sustain or become subject to as a result of, whether in respect of or not involving a Third Party Claims Claim, arising directly or Direct Claimsindirectly from or in connection with: (i) any misrepresentation in any of the representations or warranties or any breach of any of the representations or warranties of Purchaser contained in this Agreement or the other documents entered into by Purchaser in connection with this Agreement, (ii) any breach of, or otherwisefailure to perform, any agreement or covenant of Purchaser contained in this Agreement or the other documents entered into by Purchaser in connection with this Agreement, (iii) any claim for any Liabilities arising out of the Business as it is conducted on or resulting from:after the Closing Date, (iv) the Retained Litigation and (v) any guaranty, indemnity or other agreement listed in Section 8.07 of the Disclosure Schedule pursuant to which Seller, Royal Numico, Nutraco or any of their Affiliates (except for the payments referred to in Section 14.04) has guaranteed any obligation or has agreed to indemnify or otherwise compensate any third party (including without limitation, any Governmental Authority with respect to any workers' compensation law) on behalf of the Company or any Subsidiary or any of their franchisees, or is liable for any Store Lease (other than pursuant to Section 14.04) or early termination or inventory purchase obligation under any Contract for the benefit of the Company or any Subsidiary, or any of their franchisees, in the event such guaranty, indemnity or other agreement is not released pursuant to Section 8.07 as of Closing (collectively, "Seller Losses").
(ab) All representations and warranties of Purchaser in this Agreement shall survive the breach Closing and any investigation at any time made by or inaccuracy on behalf of any representation or warranty made Seller Indemnified Party, but shall expire, and Purchaser shall have no liability for any Seller Losses for breach thereof unless a written claim for indemnification is given by Purchaser in Article VI, in each case, as a Seller Indemnified Party with respect thereto prior to the second (2nd) anniversary of the Closing Date, it being understood that for purposes of this except the representations and warranties in Section 11.3(a3.02 (Authority), the terms "material" 3.06 (Broker's Fees), 3.07 (Investment Representation) and "Material Adverse Effect" contained in such representation or warranty 3.10 (Solvency) shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any survive indefinitely. Each covenant or agreement made by of Purchaser in this Agreement;
contained herein shall survive the Closing until thirty (c30) days following the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that last date on which such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreementor, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closingif no such date is specified, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount expiration of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions applicable statutes of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountlimitation.
Appears in 1 contract
Samples: Purchase Agreement (GNC Corp)
Indemnification by Purchaser. From and after the Closing and subject (a) The Purchaser hereby agrees to the provisions of this Section 11.3 and the limitations set forth in this Article XIindemnify, Purchaser shall indemnify defend and hold harmless each Seller and the Seller, its respective officers, directors, employeesagents and Affiliates (other than the Company) (each, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the a "Seller Indemnified PartiesParty") from, from and against and in respect of any and all Losses imposed on, sustained, incurred or suffered by any of the such Seller Indemnified Parties, whether in respect of Third Party Claims directly or Direct Claims, or otherwise, arising out of or resulting from:
(a) the breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, indirectly as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10a result of:
(i) any inaccuracy in, or breach of, a representation or warranty of Purchaser contained herein (A) the indemnification provided or in any certificate, instrument, schedule or document attached to this Section 11.3 shall be the sole Agreement and exclusive post-Closing remedy available delivered by Purchaser pursuant to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000this Agreement); and
(ii) Except any failure by Purchaser to perform or comply with respect any material covenants of Purchaser contained herein or in the Ancillary Documents.
(b) The Purchaser shall have no liability in the case of a claim by any Seller Indemnified Party under Section 7.2(a) unless and until, and then only to the breach extent that, such Seller Indemnified Party has suffered or inaccuracy incurred Losses consisting of any representation and warranty set forth actual damages aggregating in Section 6.1 or Section 6.2(b)excess of one percent (1%) of the Cash Purchase Price, no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) whereupon such Seller Indemnified Party shall be payable: (A) entitled to claim indemnification for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all Losses, including those less than and in excess of such Losses exceeds amount. In no event shall the De Minimis Amountaggregate liability of the Purchaser under Section 7.3(a) exceed seventy-five percent (75%) of the Cash Purchase Price, provided that any indemnity amount payable as a result of a breach of the representation or warranty of the Company or Seller contained in which case Section 4.2(a) and (b) hereof shall not exceed 100% of the Cash Purchase Price, provided, further, that no Seller Indemnified Parties shallParty shall make an indemnity claim, subject to the either individually or together with other terms and provisions of this Section 11.3indemnity claims, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountthat does not exceed $10,000.
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject (a) Subject to the provisions of this Article VII, from and after the Closing Purchaser agrees to defend, indemnify and hold harmless the Sellers and their Affiliates, and, if applicable, their respective directors, officers, agents, employees, successors and assigns (collectively, the “Seller Indemnified Parties”) from and against any and all Losses that such Seller Indemnified Party suffers or incurs, or becomes subject to, as a result of, (i) any Assumed Liability (regardless of whether such Assumed Liability was assumed by Purchaser or a Purchaser Designee pursuant to Section 11.3 2.5), (ii) any breach by Purchaser of any of its covenants or agreements in this Agreement, any Ancillary Agreement, or any other agreement, instrument or certificate delivered pursuant hereto or thereto, (iii) any failure of any representation or warranty of Purchaser contained in this Agreement or any Ancillary Agreement, or any other agreement, instrument or certificate delivered pursuant hereto or thereto to be true and correct in all respects on and as of the date of this Agreement and on and as of the Closing Date as if made on such date (other than those made on a specified date, which shall be true and correct in all respects as of such specified date), (iv) the Business, the Purchased Assets, or the Shares from and after the Closing Date, including the use, ownership, possession, operation or occupancy of any Facility, Leased Real Property, Owned Real Property, Intellectual Property, Purchased Assets, or Shares from and after the Closing Date, unless the Loss relating thereto would actually be recoverable by Purchaser as an indemnifiable Loss under the terms of this Agreement (giving effect to the limitations set forth in this Article XIVII), (v) any action taken in connection with, pursuant to or relating to Section 6.4, including any agreement or alternative business arrangement entered into by the Parties in connection therewith and pursuant to the terms thereof, (vi) the use by or under authorization of Purchaser shall indemnify and hold harmless each Seller and or any of its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns Affiliates of the Company and Hospira Marks pursuant to Section 6.18, (vii) Purchaser’s or any of its Subsidiaries Affiliates’ or Sublicensees’ (as of immediately following defined in the Closing (collectively, the "Seller Indemnified Parties"Intellectual Property License Agreement) from, against and in respect exercise of any and all Losses imposed onlicense or other rights set forth in the Intellectual Property License Agreement, sustainedor (viii) the research, incurred development, manufacture, use, sale, offer for sale, import or suffered export of any Company Medical Device Products (as defined in the Intellectual Property License Agreement) or Company Solutions Products (as defined in the Intellectual Property License Agreement) by or on behalf of Purchaser or any of the Seller Indemnified Parties, whether in respect of Third Party Claims its Affiliates or Direct Claims, or otherwise, arising out of or resulting from:
(a) the breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;Sublicensees.
(b) Seller Parent shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement which gives rise to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountLoss.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Icu Medical Inc/De)
Indemnification by Purchaser. From and after (a) Subject to Section 4.3(c), the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI, Purchaser shall indemnify and hold harmless and indemnify each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company Seller Indemnities from and its Subsidiaries as against, and shall compensate and reimburse each of immediately following the Closing (collectivelySeller Indemnities for, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, Damages that are suffered or incurred or suffered by any of the Seller Indemnified Parties, Indemnitees or to which any of the Seller Indemnitees may otherwise become subject at any time (regardless of whether in respect of Third Party Claims or Direct Claimsnot such Damages relate to any third-party claim) and that arise from or as a result of, or otherwise, arising out of or resulting fromare connected with:
(ai) any failure on the breach or inaccuracy part of the Purchaser to perform and discharge the Assumed Liabilities on a timely basis;
(ii) any material Breach of any representation or warranty made by the Purchaser in Article VI, in each case, as this Agreement or any of the Closing Date, Transactional Agreements to which it being understood that is a party; or
(iii) any Proceeding commenced by any Seller Indemnitee for purposes the purpose of enforcing their rights under this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained 4.3 provided such Seller Indemnitee is successful in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;Proceeding.
(b) Subject to Section 4.3(c), the breach Purchaser shall not be required to make any indemnification payment pursuant to Section 4.3(a) for any Breach of any covenant or agreement of the representations and warranties made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx them in this Agreement to or the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and Disclosure Schedule until such time as the total amount of all Damages (including the Damages arising from such indemnifiable Losses paid under Section 11.3(aBreach and all other Damages arising from any other Breaches of any representations or warranties) shall aggregate to that have been suffered or incurred by any one or more than the Deductible Amount, after which time of the Seller Indemnified Parties mayIndemnitees, subject or to clause (i) above, recover all indemnifiable Losses above which any one or more of the Deductible Amount.Seller Indemnitees
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Organic Holding Corp)
Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth Except as otherwise expressly provided in this Article XIVI, Purchaser shall defend, indemnify and hold harmless Seller, Principal, and each Seller and its of their respective subsidiaries, shareholders, members, affiliates, officers, managers, directors, employees, agents, successors and permitted assignsassigns (Seller and such persons and entities, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller “Seller’s Indemnified Parties") fromPersons”), and shall reimburse Seller’s Indemnified Persons, for, from and against and in respect of any and all Losses imposed onon or incurred by Seller’s Indemnified Persons, sustaineddirectly or indirectly, incurred relating to, resulting from or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of (i) a breach of, or resulting from:
(a) the breach or inaccuracy of a misrepresentation contained in, any representation or warranty made by Purchaser in Article VIthis Agreement, in each case(ii) a breach of, as of the Closing Dateor a misrepresentation contained in, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such any express representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement warranty, if any, made by Purchaser in any Transaction Document (other than this Agreement;
), (ciii) the any breach or nonfulfillment of any covenant covenant, agreement or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in other obligation of Purchaser under this Agreement, but subject any Transaction Document or any certificate or other document delivered or to Section 11.10:
be delivered pursuant hereto or thereto, (iiv) obligations maturing or accruing after the Closing Date under the Assumed Liabilities, or (Av) the indemnification provided in this Section 11.3 ownership, use, possession or operation of the Assets from and after the Closing Date. Notwithstanding the foregoing, neither Seller nor Principal shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to assert any claim for indemnification for the full amount of such Losses; or (B) under this Section 6.3 unless and until such time as all claims of such indemnifiable Losses paid under Section 11.3(aparties for indemnification hereunder exceed $200,000 (“Seller’s Basket”) shall aggregate to more than in the Deductible Amountaggregate, after at which time any and all claims of Seller and/or Principal for indemnification in excess of Seller’s Basket may be asserted; provided, however, that Seller’s Basket shall not be applicable to any Losses attributable to (a) any breach of Purchaser’s representations or warranties of which Purchaser had Knowledge of the breach at any time on or prior to the date on which such representation or warranty was made, (b) any breach by Purchaser of any covenant or obligation set forth in this Agreement or any Transaction Document if such breach is attributable to Purchaser’s fraud, bad faith or willful misconduct, or (c) the failure by Purchaser to make or pay, to or for the benefit of Seller Indemnified Parties mayand Principal, subject as appropriate, any prorations, adjustments, reimbursements, settlements or reconciliations specifically required to clause (i) above, recover all indemnifiable Losses above be made or paid by Purchaser pursuant to the Deductible Amountprovisions of Article IV of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cash America International Inc)
Indemnification by Purchaser. From and after the Closing and subject Subject to the provisions terms and conditions of this Section 11.3 and the limitations set forth in this Article XI9, Purchaser shall indemnify and hold harmless each the Seller and its respective officersAffiliates and the employee benefit plans, shareholders, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directorspartners, employees, agentssuccessors, successors assigns, representatives and permitted assigns agents of each of them in their capacities as such (the Company and its Subsidiaries as of immediately following the Closing (collectively, the "“Seller Indemnified Parties"Persons”) from, from and against and in respect of any and all Losses imposed on, sustained, incurred or suffered to be incurred by any of the Seller Indemnified Partiesthem, whether in respect of Third Party Claims resulting from or Direct Claims, or otherwise, arising out of or resulting fromin connection with:
(a) the breach or inaccuracy failure by the Purchaser to complete the purchase of any representation or warranty made by Purchaser in Article VIShares as provided herein, in each case, as upon satisfaction of the Closing Dateconditions set forth in Section 8.1, it being understood that for purposes the Losses which the Seller may recover upon such failure shall include any consequential damages resulting from such failure to complete such purchase and shall not exceed an amount equal to 50% of the Purchase Price (inclusive of any such any consequential damages), and, subject to Section 9.8, recovery pursuant to this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty 9.3(a) shall be disregarded the Seller’s exclusive remedy for purposes Losses resulting from or arising out of determining whether or in connection with such representation or warranty was breached or was inaccuratefailure by the Purchaser;
(b) the any breach of any covenant of the representations or agreement warranties made by Purchaser in this Agreement;Agreement (it being agreed and acknowledged by the parties that for purposes of the right to indemnification pursuant to this clause (b) the representations and warranties of Purchaser contained herein or therein shall not be deemed qualified by any references therein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect); or
(c) the breach ownership of any covenant the Shares, the Company, DSTC or agreement made by the conduct or operations of the Company or XX Xxxxxxx DSTC or the Business from and after the Closing, except in this Agreement each such case to the extent that such covenant or agreement the Purchaser is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification pursuant to Section 9.2 (disregarding for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under this purpose only Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount9.6).
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XI, Purchaser shall indemnify and hold harmless each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from:
(a) the breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Subject to Section 11.3(a), the terms "material" 12.1 and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject Purchaser hereby agrees that from and after the Closing it shall indemnify, defend and hold harmless Seller, any of its Affiliates, and their respective successors and permitted assigns, and their respective directors, officers, employees, agents, and representatives, each solely in their capacity as such (the “Seller Indemnified Parties” and collectively, with the Purchaser Indemnified Parties, the “Indemnified Parties”) from, against and in respect of any Losses directly or indirectly imposed on, sustained, incurred or suffered by, any of the Seller Indemnified Parties, to Section 11.10the extent relating to or arising out of:
(1) any breach of any representation or warranty made by Purchaser in this Agreement in each case without giving effect to any “Material Adverse Effect,” “materiality” contained in such representations and warranties for purposes of determining whether a breach has occurred;
(2) any breach of a covenant or agreement of Purchaser contained in this Agreement;
(3) any (i) IRAs in Assumed Deposits that Seller has delegated to Purchaser pursuant to Section 7.8(c) or (Aii) Unreplaced Letters of Credit that Purchaser has acquired and assumed pursuant to Section 7.9(c); or
(4) any of the Assumed Liabilities or the conduct of the Transferred Operations after the Effective Time (to the extent not giving rise to a right to receive indemnification provided in this Section 11.3 from Seller hereunder).
(b) Purchaser shall not be liable to the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and for (Bi) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except any de minimis loss with respect to the breach or inaccuracy of any representation and warranty set forth matters contained in Section 6.1 12.3(a)(1) or Section 6.2(b), no indemnification payment 12.3(a)(2) or (ii) any Losses with respect to any indemnifiable the matters contained in Section 12.3(a)(1) unless the Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the therefrom exceed an aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject equal to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of Deductible (excluding such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to de minimis loss described in clause (i) aboveherein), recover all indemnifiable and then only for Losses above in excess of the Deductible Amountand up to an aggregate amount equal to the Cap; provided, however, that the limitations in this clause (b) shall not apply to any Losses based upon or resulting from any inaccuracy in or breach of any Fundamental Representation made by Purchaser or to any Losses arising from fraud.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Banc of California, Inc.)
Indemnification by Purchaser. From (a) Subject to Sections 7.2(b) and 7.6, from and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XIClosing, Purchaser shall indemnify and shall cause the Acquired Companies to defend, indemnify, reimburse and hold harmless each Seller and Seller, its Affiliates, and, if applicable, their respective directors, officers, directors, employees, agents, representatives and successors in interest (the “Seller Indemnified Parties”) from any damages, claims, losses, liabilities, judgments, settlements, assessments, demands, awards and permitted assigns, each in its capacity as such expenses (including reasonable attorneys’ fees and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing expenses) (collectively, the "Seller Indemnified Parties"“Losses”) from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by or asserted against any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, to the extent arising out of or resulting from:
from (ai) the any breach or inaccuracy of any representation or warranty made by Purchaser contained in Article VIIV, (ii) any breach of any covenant or agreement of Purchaser contained in each casethis Agreement which, as by its terms, is to be performed or complied with in whole or in part following the Closing, (iii) any liability for the Purchaser’s share of Transfer Taxes, if any, to which the Closing Dateprovisions of Section 5.4(a) apply, it being understood that for purposes and (iv) any ECO Claim or XPL Claim related to any action taken or any action not taken by Purchaser under Section 5.14, or by Seller and its Affiliates (including the Acquired Companies) at the direction of this Purchaser, under Section 11.3(a5.14, or any claim related to any action taken or not taken under Purchaser’s assumed control in bad faith or in violation of Section 5.14.
(b) No Claim Notice may be submitted by any Seller Indemnified Party with respect to any Losses arising out of or resulting from Section 7.2(a)(i), nor shall Purchaser be required to indemnify any Seller Indemnified Party against any such Loss in respect of such Claim Notice, unless the terms "material" aggregate amount to be paid out in respect of any such Claim Notice exceeds $25,000 (the “Initial Deductible”); provided, however, that any series of Losses relating to the same facts and "Material Adverse Effect" contained in such representation or warranty shall circumstances will be disregarded aggregated for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) Losses exceed the breach of any covenant or agreement made by Initial Deductible. Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement shall be liable to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts or resulting from Section 7.2(a)(i) that exceed the Initial Deductible solely to the extent such Losses, in the aggregate, would exceed $200,000 (the “Deductible”), and circumstances unless and until then only for the aggregate amount of all such excess, up to an aggregate maximum amount equal to $10,000,000 (the “Indemnity Cap”). Notwithstanding the foregoing, Losses exceeds arising out of or resulting from the De Minimis Amount, in which case the Seller Indemnified Parties shall, Fundamental Claims and fraud shall not be subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for Deductible or the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountIndemnity Cap.
Appears in 1 contract
Samples: Stock Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Indemnification by Purchaser. From and after the Closing and Purchaser agrees, subject to the other terms, conditions and limitations of this Agreement (including the provisions of this Section 11.3 and the limitations set forth in this Article XI9.06 hereof), Purchaser shall to indemnify and hold harmless each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company other Seller Indemnitees against, and its Subsidiaries as to hold Seller and each of immediately following the Closing (collectively, the "other Seller Indemnified Parties") Indemnitees harmless from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, Loss arising out of or of, resulting from, caused by or attributable to:
(a) the breach or inaccuracy failure of any representation or warranty made by of Purchaser contained in Article VIthis Agreement (including any schedule or exhibit hereto), to be true and correct as of the Effective Date or as of the Closing Date or the failure of any representation or warranty contained in each case, the Ancillary Agreements or the Purchaser Closing Documents to be true and correct as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach or violation by Purchaser of any covenant or agreement made by of Purchaser contained in this AgreementAgreement (including any schedule or exhibit hereto), the Ancillary Agreements or the Purchaser Closing Documents;
(c) the breach operation of the Storage Products Business by Purchaser after the Closing Date;
(d) any demand, claim, debt, suit, cause of action, arbitration or other proceeding (including, but not limited to, a warranty claim, a strict product liability claim or any other claim) that is made or asserted by any third party that relates to any product defects, including latent defects, of any covenant product or agreement made service, including any of the Products, provided by Purchaser to any customer after Closing unless such Products are produced after the Company or XX Xxxxxxx in this Agreement to Closing Date and contain a design defect based on unmodified designs transferred as part of the extent that such covenant or agreement is required to be performed or complied with following the ClosingBusiness Assets; and
(de) notwithstanding anything any demand, claim, debt, suit, cause of action or proceeding made or asserted by any employee or independent contractor or any former employee or independent contractor of Purchaser, that relates in any manner to any termination after the contrary contained in this AgreementClosing Date by Purchaser of a New Hire or any other matter relating to Purchaser's employment of a New Hire after the Closing Date; provided however, but subject to Section 11.10:
(i) (A) the indemnification provided that nothing in this Section 11.3 9.04 shall be the sole and exclusive post-Closing remedy available impose on Purchaser any duty to indemnify Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountExcluded Liabilities.
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject (a) Subject to the provisions of this Section 11.3 Article, from and after the limitations set forth in this Article XIClosing Date, Purchaser shall indemnify and hold harmless each Seller Sellers and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing their Affiliates (collectively, the "Seller Indemnified Parties") from, from and against and in respect of any and all Losses imposed on, sustained, incurred or Damages (as defined in Section 9.2(a) herein) suffered by such Seller Indemnified Parties resulting from or arising out of (i) any breach of any of the representations or warranties made by the Purchaser in this Agreement or in any document executed in connection herewith, (ii) any breach or nonfulfillment of any covenants or agreements made by Purchaser herein or any document executed in connection herewith, notwithstanding when any such breach or nonfulfillment may occur, (iii) the operation of the Business (including without limitation the Hospital) from and after 11:59 p.m. on the Closing Date; and (iv) any default with respect to the Equipment Leases assumed by the Purchaser as described in Section 3.1(d) above.
(b) None of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from:
(a) the breach or inaccuracy of Parties shall be entitled to assert any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that claim for purposes of indemnification pursuant to this Section 11.3(a)9.3 after the dates provided in Section 9.1; provided, however, that if on or prior to such date a Notice of Claim shall have been given pursuant to Section 9.4 hereof for such indemnification, the terms "material" and "Material Adverse Effect" contained in Seller Indemnified Parties shall continue to have the right to be indemnified with respect to such representation indemnification claim until such claim for indemnification has been satisfied or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement made by Purchaser otherwise resolved as provided in this Agreement;Article.
(c) the breach of any covenant or agreement made All claims for indemnification by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may shall be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy net of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no insurance proceeds actually received as a result of the matter for which indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountis claimed.
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject Subject to the provisions terms and conditions of this Section 11.3 and the limitations set forth in this Article XI11.4, Purchaser shall indemnify hereby agrees to indemnify, defend and hold harmless each the Seller Parties and its their respective officers, directors, employees, agents, successors and permitted assignsassigns (each a “Seller Indemnitee”) from or against, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against for and in respect of of, any and all Losses imposed onsuffered, sustained, incurred or suffered required to be paid by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, Indemnitee arising out of of, based upon, in connection with or resulting fromas a result of:
(a) any inaccuracy in or breach of any representation or warranty made by Purchaser (i) in any Transaction Document other than this Agreement, (ii) in this Agreement as of the date hereof, and (iii) with respect to any inaccuracy in or breach of any representation or warranty made by Purchaser in this Agreement as of the Closing Date, to the extent such breach or inaccuracy results from or relates to the breach or failure to perform of any of Purchaser’s covenants or agreements contained in this Agreement during the Interim Period;
(b) any allegation contained in any Third Party Claim that, if true, would be a breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurateunder any Transaction Document;
(bc) the non-fulfillment, non-performance or other breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed by Purchaser pursuant to this Agreement or complied any other Transaction Document;
(d) any Assumed Liabilities;
(e) any arrangements or agreements made or alleged to have been made by Purchaser with following any broker, finder or other agent in connection with the Closingtransactions contemplated by this Agreement that result in any Seller Party being liable on account thereof; and
(df) notwithstanding anything any Transfer Taxes required to the contrary contained in this Agreement, but subject be borne by Purchaser pursuant to Section 11.10:
(i) (A) the indemnification provided in this 3.4 or any Apportioned Obligations allocated to Purchaser pursuant to Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amount7.13.
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject Except as otherwise limited by this Article VI, Purchaser and, subsequent to the provisions Closing, Newco and each of this Section 11.3 Newco’s subsidiaries, jointly and the limitations set forth in this Article XIseverally, Purchaser shall indemnify and hold harmless Sellers, Xxxxxx’x and their Affiliates and each Seller and its of their respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of from any and all Losses imposed onliabilities, sustainedlosses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, reasonable legal costs and expenses) suffered or incurred or suffered by any of the them (hereinafter “Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, Losses”) arising out of or resulting from:
(a) the breach or inaccuracy of any representation representation, warranty, covenant or warranty made agreement by Purchaser contained herein or in Article VIany exhibit, in each case, as of the Closing Date, it being understood that for purposes of schedule or certificate delivered under this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurateAgreement;
(b) the breach failure of any covenant Purchaser to pay, perform or agreement made by Purchaser in this Agreementotherwise discharge the Assumed Liabilities;
(c) The failure to pay rents and/or to pay or perform any other obligation arising under any Lease or otherwise in connection with the breach Business which such rent obligations or other obligations arises or accrues on or after the Closing Date (and which shall expressly include, but not be limited to, the obligation to indemnify and hold harmless Xxxxxx’x and/or any of its Affiliates from any Seller Losses suffered or incurred by Xxxxxx’x or any of such Affiliates as a result of any covenant or agreement made by the Company or XX Xxxxxxx such failure described in this Agreement to the extent that Section 6.2(c) arising out of a guarantee of any Lease by Xxxxxx’x or by any such covenant or agreement is required to be performed or complied with following the ClosingAffiliate of Xxxxxx’x); andor
(d) notwithstanding anything to Any claims or lawsuit, the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following underlying allegations of which occur on or after the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect brought against Sellers or Xxxxxx’x relating to the breach or inaccuracy of any representation and warranty set forth in Section 6.1 or Section 6.2(b), no indemnification payment with respect to any indemnifiable Losses otherwise payable under Section 11.3(a) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountAssets.
Appears in 1 contract
Indemnification by Purchaser. From and after the Closing and subject a. Subject to the provisions of this Article VII, from and after the Closing Purchaser agrees to defend, indemnify and hold harmless the Sellers and their Affiliates, and, if applicable, their respective directors, officers, agents, employees, successors and assigns (collectively, the “Seller Indemnified Parties”) from and against any and all Losses that such Seller Indemnified Party suffers or incurs, or becomes subject to, as a result of, (i) any Assumed Liability (regardless of whether such Assumed Liability was assumed by Purchaser or a Purchaser Designated Affiliate pursuant to Section 11.3 2.5), (ii) any breach by Purchaser of any of its covenants or agreements in this Agreement, any Ancillary Agreement, or any other agreement, instrument or certificate delivered pursuant hereto or thereto, (iii) any failure of any representation or warranty of Purchaser contained in this Agreement or any Ancillary Agreement, or any other agreement, instrument or certificate delivered pursuant hereto or thereto to be true and correct in all respects on and as of the date of this Agreement and on and as of the Closing Date as if made on such date (other than those made on a specified date, which shall be true and correct in all respects as of such specified date), (iv) the Business, the Purchased Assets, or the Shares from and after the Closing Date, including the use, ownership, possession, operation or occupancy of any Facility, Leased Real Property, Owned Real Property, Intellectual Property, Purchased Assets, or Shares from and after the Closing Date, unless the Loss relating thereto would actually be recoverable by Purchaser as an indemnifiable Loss under the terms of this Agreement (giving effect to the limitations set forth in this Article XIVII), (v) any action taken in connection with, pursuant to or relating to Section 6.4, including any agreement or alternative business arrangement entered into by the Parties in connection therewith and pursuant to the terms thereof, (vi) the use by or under authorization of Purchaser shall indemnify and hold harmless each Seller and or any of its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directors, employees, agents, successors and permitted assigns Affiliates of the Company and Hospira Marks pursuant to Section 6.18, (vii) Purchaser’s or any of its Subsidiaries Affiliates’ or Sublicensees’ (as of immediately following defined in the Closing (collectively, the "Seller Indemnified Parties"Intellectual Property License Agreement) from, against and in respect exercise of any and all Losses imposed on, sustained, incurred license or suffered by any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting from:
(a) the breach or inaccuracy of any representation or warranty made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccurate;
(b) the breach of any covenant or agreement made by Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement, but subject to Section 11.10:
(i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect to the breach or inaccuracy of any representation and warranty other rights set forth in Section 6.1 the Intellectual Property License Agreement or Section 6.2(b)(viii) the research, no indemnification payment with respect development, manufacture, use, sale, offer for sale, import or export of any Company Medical Device Products (as defined in the Intellectual Property License Agreement) or Company Solutions Products (as defined in the Intellectual Property License Agreement) by or on behalf of Purchaser or any of its Affiliates or Sublicensees.
b. Seller Parent shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any indemnifiable Losses otherwise payable under Section 11.3(a) shall Loss upon becoming aware of any event which would reasonably be payable: (A) for any individual Losses expected to, or series of related Losses arising out of substantially similar facts and circumstances unless and until the aggregate amount of all such Losses exceeds the De Minimis Amountdoes, in which case the Seller Indemnified Parties shallgive rise thereto, subject including incurring costs only to the other terms and provisions of this Section 11.3, be entitled minimum extent necessary to indemnification for remedy the full amount of breach which gives rise to such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible AmountLoss.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Icu Medical Inc/De)
Indemnification by Purchaser. From (a) Subject to Section 7.2(b) and Sections 7.3 through 7.5, from and after the Closing and subject to the provisions of this Section 11.3 and the limitations set forth in this Article XIClosing, Purchaser shall indemnify indemnify, defend and hold harmless each Seller and its respective officers, directors, employees, agents, successors and permitted assigns, each in its capacity as such and who are not officers, directorsmanagers, employees, representatives and agents, successors from and permitted assigns of the Company and its Subsidiaries as of immediately following the Closing (collectively, the "Seller Indemnified Parties") from, against and in respect of any and all Losses imposed onsuffered or incurred by any such party, sustainedif and to the extent such Losses are suffered or incurred by reason of, incurred or suffered by arising out of, any of the Seller Indemnified Parties, whether in respect of Third Party Claims or Direct Claims, or otherwise, arising out of or resulting fromfollowing:
(ai) the The breach or inaccuracy failure of any representation or warranty of Purchaser contained in this Agreement to be true and correct when made by Purchaser in Article VI, in each case, as of the Closing Date, it being understood that for purposes of this Section 11.3(a), or deemed made under the terms "material" and "Material Adverse Effect" contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached or was inaccuratehereof;
(bii) The Assumed Liabilities or any Liability arising out of Purchaser’s use of the Purchased Assets or operations on the Premises at or subsequent to the Closing (except to the extent Seller has any such Liability under the Supply Agreement, Sublease Agreement, or any other agreement between Purchaser and Seller); or
(iii) The breach of any covenant or agreement made by of Purchaser in this Agreement;
(c) the breach of any covenant or agreement made by the Company or XX Xxxxxxx in this Agreement to the extent that such covenant or agreement is required to be performed or complied with following the Closing; and
(d) notwithstanding anything to the contrary contained in this Agreement.
(b) No claim for indemnification may be made under Section 7.2 unless written notice, but subject specifying in reasonable detail the nature of the claim, has been given to Section 11.10:
Purchaser (i) (A) the indemnification provided in this Section 11.3 shall be the sole and exclusive post-Closing remedy available to Seller Indemnified Parties and (B) following the Closing, the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser shall not exceed $138,750,000; and
(ii) Except with respect at any time on or prior to the breach or inaccuracy 18 month anniversary of any representation and warranty set forth in Section 6.1 or Section 6.2(b)the Closing Date, no indemnification payment with respect to any indemnifiable Losses otherwise payable claim under Sections 7.2(a)(i) or 7.2(a)(iii), or (ii) at any time on or prior to sixty (60) days after the expiration of the statute of limitations applicable to the underlying claim (or if there is no applicable statute of limitations for the underlying claim, the statute of limitations applicable to breaches of this Agreement), with respect to any claim under Section 11.3(a7.2(a)(ii). The right to indemnification with respect to any claim for which notice has been properly and timely given in accordance with Section 7.2(b) shall be payable: (A) for any individual Losses or series of related Losses arising out of substantially similar facts and circumstances unless and until expire upon the aggregate amount of all such Losses exceeds the De Minimis Amount, in which case the Seller Indemnified Parties shall, subject to the other terms and provisions of this Section 11.3, be entitled to indemnification for the full amount final resolution of such Losses; or (B) unless and until such time as all such indemnifiable Losses paid under Section 11.3(a) shall aggregate to more than the Deductible Amount, after which time the Seller Indemnified Parties may, subject to clause (i) above, recover all indemnifiable Losses above the Deductible Amountclaim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Scott's Liquid Gold - Inc.)
