Common use of Indemnification by Seller and Seller Parent Clause in Contracts

Indemnification by Seller and Seller Parent. (a) From and after the Closing Date, subject to the other provisions of this Article XI, Seller and Seller Parent, jointly and severally, agree to indemnify Purchaser and its officers, directors, employees and Affiliates (including the Company after the Closing) (collectively, the “Indemnified Purchaser Entities”) and to hold each of them harmless from and against, any and all actions, causes of actions, suits, proceedings, demands, assessments, judgments, settlements, claims, liabilities, losses, costs, Taxes, damages, fines, fees, deficiencies, expenses or penalties (including reasonable attorneys’ fees, expenses and disbursements in connection with any action, suit or proceeding against such Person but excluding, in any case, loss of profits or other consequential damages and punitive or other exemplary damages, except to the extent that such damages have been awarded to a Third Party against an Indemnified Party) (collectively, “Damages”) suffered, paid or incurred by any Indemnified Purchaser Entity resulting from or caused by: (i) any failure of any of the representations and warranties made by Seller and Seller Parent in Article IV of this Agreement (other than those made in Section 4.11 (Taxes)) to be true and correct as of the date of this Agreement or as of, and as if made on, the Closing Date (or, in the case of any representations and warranties that expressly speak as of an earlier date, as of such earlier date); provided, however, that if any such representation or warranty (other than the representations and warranties contained in Section 4.6 or Section 4.9(ii)) is qualified in any respect by materiality or Material Adverse Effect, for purposes of this paragraph, such qualifiers will in all respects be ignored; (ii) any nonfulfillment or breach by Seller or Seller Parent of any covenant or agreement of Seller or Seller Parent contained in this Agreement; and (iii) any Excluded Liabilities. (b) Notwithstanding anything to the contrary contained in this Section 11.1, the Indemnified Purchaser Entities shall be entitled to indemnification pursuant to Section 11.1(a) with respect to any claim for indemnification pursuant to Section 11.1(a)(i): (i) only if the amount of Damages with respect to such claim exceeds $100,000 (any claim involving Damages equal to or less than such amount being referred to as a “De Minimis Claim”); (ii) only if, and then only to the extent that, the aggregate Damages to all Indemnified Purchaser Entities (without duplication), with respect to all claims for indemnification pursuant to Section 11.1(a)(i) (other than De Minimis Claims), exceed $10,000,000 (the “Deductible”), whereupon (subject to the provisions of Section 11.1(b)(iii) below) Seller and Seller Parent shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of the amount of the Deductible; and provided that the Indemnified Purchaser Entities shall not be entitled to aggregate Damages in excess of five percent (5%) of the Purchase Price; and (iii) only with respect to claims for indemnification made on or before the last day of the applicable Survival Period.

Indemnification by Seller and Seller Parent. (a) From and after the Closing Date, subject Subject to the other provisions of this Article XIX, from and after the Closing, Seller and Seller ParentParent shall, jointly and severally, agree to indemnify Genezen, Purchaser and its their Affiliates and each of their respective officers, directors, employees managers, employees, successors, assigns, agents and Affiliates (including the Company after the Closing) representatives (collectively, the “Indemnified Purchaser EntitiesIndemnitees”) against and to hold each of them harmless from and againstany claim, any and all actionsloss, causes of actionsxxxxxxxxx, suitscost, proceedingsdamage, demandsdeficiency, assessmentsassessment, judgmentsfine, settlementsjudgment, claimsfee, liabilities, losses, costs, Taxes, damages, fines, fees, deficiencies, expenses cost or penalties (including reasonable attorneys’ fees, expenses and disbursements in connection with any action, suit or proceeding against such Person but excluding, in any case, loss of profits or other consequential damages and punitive or other exemplary damages, except to the extent that such damages have been awarded to a Third Party against an Indemnified Party) ​ ​ expense (collectively, “DamagesLosses”) suffered, paid suffered or incurred by any Indemnified such Purchaser Entity resulting from Indemnitee to the extent arising from, or caused by: relating to: (i) any failure inaccuracy or breach of any representation or warranty of the representations and warranties made by Seller and or Seller Parent contained in Article IV of this Agreement (other than those made without giving effect to any “material,” “materially,” “Material Adverse Effect,” or similar qualification or standard contained in Section 4.11 (Taxes)) to be true and correct as of the date of this Agreement or as of, and as if made on, the Closing Date (or, in the case of any representations and warranties that expressly speak as of an earlier date, as of such earlier date); provided, however, that if any such representation or warranty (other than warranty, except for the representations and warranties representation contained in Section 4.6 or Section 4.9(ii4.19(a)) is qualified in any respect by materiality or Material Adverse Effect, for purposes of this paragraph, such qualifiers will in all respects be ignored; ); (ii) any nonfulfillment or breach by Seller or Seller Parent of any covenant or agreement of Seller or Seller Parent contained in this Agreement; and and (iii) any Excluded LiabilitiesLiability. (b) Notwithstanding anything the foregoing, Seller and Seller Parent shall not be required to indemnify any Purchaser or Purchaser Indemnitee and Seller and Seller Parent shall not have any liability under Section 10.01 (a)(i) unless the individual item or group of related items relating to the contrary contained Loss is in this Section 11.1, excess of $[***] and the Indemnified Purchaser Entities shall be entitled to indemnification pursuant to Section 11.1(a) with respect to any claim for indemnification pursuant to Section 11.1(a)(i): (i) only if the aggregate amount of Damages with respect to such claim all Losses for which Seller or Seller would be liable exceeds $100,000 (any claim involving Damages on a cumulative basis an amount equal to or less than such amount being referred to as a $[***] (the “De Minimis ClaimDeductible”); (ii) only if, and then only to the extent thatof any such excess; provided, however, that the Deductible shall not apply to any breach of a Seller Fundamental Representation or in the case of Fraud. (c) Notwithstanding anything to the contrary herein, (i) in no event shall the aggregate Damages amount of Losses for which Seller and Seller Parent are obligated to all Indemnified indemnify the Purchaser Entities (without duplication), with respect to all claims for indemnification Indemnitees pursuant to Section 11.1(a)(i10.01 (a)(i) (other than De Minimis Claims), for any breach of a Seller Fundamental Representation or in the case of Fraud) exceed an amount equal to $10,000,000 [***] (the “DeductibleCap”); and (ii) except in the case of Fraud, whereupon (subject to in no event shall the provisions aggregate amount of Section 11.1(b)(iii) below) Losses for which Seller and or Seller Parent shall be is obligated to pay in full all such amounts but only indemnify the Purchaser Indemnitees pursuant to the extent such aggregate Damages are in excess breaches of the Seller Fundamental Representations exceed an amount of the Deductible; and provided that the Indemnified Purchaser Entities shall not be entitled equal to aggregate Damages in excess of five percent (5%) of the Purchase Price; and (iii) only with respect to claims for indemnification made on or before the last day of the applicable Survival Period[***].

Indemnification by Seller and Seller Parent. (a) From In addition to, and not in limitation of, the indemnities provided in Article X (which Article shall control the matters covered thereby in the case of any inconsistencies), from and after the Closing Date, subject to the other provisions of this Article XI, Seller and Seller Parent, jointly and severally, agree to indemnify Purchaser and its officers, directors, employees and Affiliates (including the Company after the Closing) (collectively, the “Indemnified Purchaser Entities”) and to hold each of them harmless from and against, any and all actions, causes of actions, suits, proceedings, demands, assessments, judgments, settlements, claims, liabilities, losses, costs, Taxes, damages, fines, fees, deficiencies, expenses or penalties (including penalties, and reasonable attorneys’ fees, expenses and disbursements in connection with any action, suit or proceeding against such Person whether or not arising out of or resulting from any Third Party claim (but excluding, in any case, loss of profits or other consequential damages that were not reasonably foreseeable and punitive or other exemplary damages, except in each case to the extent that such damages have been awarded to a Third Party against an Indemnified PartyEntity) (collectively, “Damages”) ), suffered, paid or incurred by any such Indemnified Purchaser Entity resulting from or caused by: (i) any failure breach of any of the representations and warranties made by Seller and Seller Parent to Purchaser in Article IV of this Agreement (other than those made in Section 4.11 (Taxes)) to be true and correct as a breach of the date of this Agreement or as of, and as if made on, the Closing Date (or, in the case of any representations and warranties that expressly speak as of an earlier date, as of such earlier date); provided, however, that if any such representation or warranty (other than the representations and warranties contained in Section 4.6 or Section 4.9(ii)Sections 4.12 and 4.19(f) is qualified in any respect by materiality or Material Adverse Effect, for purposes of this paragraph, such qualifiers will in all respects Agreement which shall be ignoredgoverned by Article X; (ii) any nonfulfillment or breach by Seller or Seller Parent of any covenant or agreement of Seller or Seller Parent contained in this Agreement, other than a breach of the covenants in Section 6.1(n) of this Agreement, which shall be governed by Article X; and or (iii) any Excluded Liabilitiesthe matters described in Section 11.1 of the Seller Disclosure Letter. (b) Notwithstanding anything to the contrary contained in this Section 11.1, the Indemnified Purchaser Entities shall be entitled to indemnification pursuant to Section 11.1(a) with respect to any claim for indemnification pursuant to Section 11.1(a)(i): (i) only if the amount of Damages with respect to such claim exceeds $100,000 (any claim involving Damages equal to or less than such amount being referred to as a “De Minimis Claim”); (iiA) only if, and then only to the extent that, the aggregate Damages to all Indemnified Purchaser Entities (without duplication), with respect to all claims for indemnification pursuant to Section 11.1(a)(i) (other than De Minimis Claims)such claims, exceed $10,000,000 6 million (the “Deductible”), whereupon (subject to the provisions of Section 11.1(b)(iiiclause (B) below) Seller and Seller Parent shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of the amount of the Deductible; and provided that the Indemnified Purchaser Entities shall not be entitled to aggregate Damages in excess of five 50 percent (5%) of the Base Purchase PricePrice as adjusted pursuant to Section 2.5 (the “Cap”); provided, further, that the Deductible and the Cap shall not apply to claims for indemnification arising out of, resulting from or caused by a breach of the representations and warranties in Section 4.11 of this Agreement; and (iiiB) only with respect to claims for indemnification made on or before the last day date that is three years after the Closing Date; provided that with respect to claims for indemnification arising out of, resulting from or caused by a breach of the representations and warranties made in Section 4.11 of this Agreement, the Indemnified Purchaser Entities shall be entitled to indemnification pursuant to Section 11.1(a)(i) with respect to any such claim made on or before 30 days after the expiration of the applicable Survival Periodstatute of limitations; provided further, that with respect to claims for indemnification arising out of, resulting from or caused by a breach of the representations and warranties made in Section 4.1(a), the first sentence of Section 4.1(b) or Sections 4.2, 4.6(a), 4.6(b) or 4.17, the Indemnified Purchaser Entities shall be entitled to indemnification pursuant to Section 11.1(a)(i) with respect to any such claim indefinitely or until the latest date permitted by Applicable Law. (c) Notwithstanding anything contained in Article IV or any other provision of this Agreement to the contrary, Purchaser and Purchaser Parent understand and agree that Seller and Seller Parent have not made, and are not making, any representation or warranty whatsoever, express or implied, with respect to Seller, Seller Parent, the Subject Companies, the Registered Fund Clients, the Separate Account Clients or the New Advisory Clients, the respective businesses and properties of any of the foregoing Persons, the transactions contemplated hereby or any other matter, other than those representations and warranties of Seller and Seller Parent expressly set forth in this Agreement and the Ancillary Agreement, provided that nothing in this Agreement shall relieve any party from liability for fraud.

Indemnification by Seller and Seller Parent. (a) From In addition to and not in limitation of the indemnities provided in Section 3.1(c) and in Article X (which Section and Article sets forth the exclusive remedy of Purchaser and Seller Parent in respect of Tax matters), from and after the Closing Date, subject to the other provisions of this Article XI, Seller and Seller Parent, jointly and severally, agree to indemnify Purchaser Purchaser, its affiliates and its their respective officers, directors, directors and employees and Affiliates (including the Company after the Closing) (collectively, the “"Indemnified Purchaser Entities”") and to hold each of them harmless from and defend them against, any and all actions, causes of actions, suits, proceedings, demands, assessments, judgments, settlements, claims, liabilities, losses, costs, Taxes, damages, fines, fees, deficiencies, expenses or penalties (including penalties, and reasonable attorneys’ ' fees, expenses and disbursements in connection with any action, suit suit, proceeding, demand, assessment, judgment or proceeding claim against such Person (but excluding, in any case, loss of profits or other consequential damages and punitive or other exemplary damages, except to the extent that such damages have been awarded to a Third Party against an Indemnified PartyPurchaser Entity) (collectively, “"Damages”) "), suffered, paid or incurred by any such Indemnified Purchaser Entity arising out of or in connection with, resulting from or caused by: (i) any failure breach of any of the representations and warranties made by Seller and Seller Parent to Purchaser in Article IV of this Agreement (it being understood that such representations and warranties, other than those made in Section 4.11 (Taxes)) to be true and correct as of the date of this Agreement or as of, and as if made on, the Closing Date (or, in the case of any representations and warranties that expressly speak as of an earlier date, as of such earlier date); provided, however, that if any such representation or warranty (other than the representations and warranties contained in Sections 4.7(b), (c), (d) and (e), 4.10(a)(ii), 4.11(a) and the first sentence of Section 4.6 4.15(a), shall be interpreted without giving effect to any limitations or Section 4.9(ii)) is qualified in any respect by materiality qualifications as to "materiality" or "Material Adverse Effect, for purposes of this paragraph, such qualifiers will in all respects be ignored"); (ii) any nonfulfillment or breach by Seller or Seller Parent of any covenant or agreement of Seller or Seller Parent contained in this Agreement; and (iii) any Excluded LiabilitiesLitigation, (iv) any Excluded Liability; (v) any Retained Seller Plan; (vi) any Pre-Closing FG Employee Retained Liability; and (vii) any Pre-Closing Environmental Liability. (b) Notwithstanding anything to the contrary contained in this Section 11.1, the Indemnified Purchaser Entities shall be entitled to indemnification pursuant to Section 11.1(a) with respect to any claim for indemnification pursuant to Section 11.1(a)(i): (iA) only if the amount of Damages with respect to such claim exceeds $100,000 30,000 (any claim involving Damages equal to or less than such amount being referred to as a “"De Minimis Claim”"); (iiB) only if, and then only to the extent that, the aggregate Damages to all Indemnified Purchaser Entities (without duplication), with respect to all claims for indemnification pursuant to Section 11.1(a)(i) (other than De Minimis Claims), exceed $10,000,000 6,000,000 (the “"Deductible”"), whereupon (subject to the provisions of Section 11.1(b)(iiiclause (C) below) Seller and Seller Parent shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of the amount of the Deductible; and provided that (i) the Indemnified Purchaser Entities shall only be entitled to (A) 100% of aggregate Damages otherwise indemnifiable pursuant to Section 11.1(a)(i) up to an aggregate amount of Damages equal to fifteen percent (15%) of the Purchase Price and (B) fifty percent (50%) of any Damages otherwise indemnifiable pursuant to Section 11.1(a)(i) above that amount and (ii) the Indemnified Purchaser Entities shall not be entitled to indemnification pursuant to Section 11.1(a)(i) of aggregate Damages in excess of five 35 percent (535%) of the Purchase Price; and (iiiC) only with respect to claims for indemnification made Claim Notices received on or before the last day date that is twenty-four months after the Closing Date; provided, however, that claims made with respect to a breach of the representations and warranties set forth in Section 4.1(a), the first sentence of Section 4.1(b), or Sections 4.2, 4.5, 4.6 or 4.18 may be made at any time after the Closing Date; provided further, however, that claims made with respect to a breach of the representations set forth in Section 4.11 may be made within 30 days of the expiration of the applicable Survival Periodstatute of limitation governing such claims. (c) Notwithstanding anything contained in Article IV or any other provision of this Agreement to the contrary, Purchaser understands and agrees that neither Seller and Seller Parent, nor any Person acting on their behalf, has made, and are not making, any representation or warranty whatsoever, express or implied, with respect to Seller, Seller Parent, the Subject Companies or FG, the respective businesses and properties of the Subject Companies and FG, the transactions contemplated hereby or any other matter, other than those representations and warranties of Seller and Seller Parent expressly set forth in this Agreement. (d) Purchaser understands that any cost estimates, projections or other predictions which have been provided to Purchaser by or on behalf of Seller or Seller Parent (including in the Confidential Memorandum) are not and shall not be deemed to be representations or warranties of Seller or Seller Parent. Purchaser acknowledges that (i) there are uncertainties inherent in attempting to make such estimates, projections and other predictions, (ii) Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections and other predictions so furnished to it, and (iii) under no circumstances shall Purchaser have any claim against Seller or Seller Parent or any of their respective officers, directors, affiliates, agents or representatives (including, without limitation, Lehman Brothers Inc.) with respect thereto.

Indemnification by Seller and Seller Parent. (a) From Subject to the other terms and conditions of this Article VIII, from and after the Closing Date, subject to the other provisions of this Article XIClosing, Seller and Seller Parent, jointly and severally, agree to indemnify Purchaser shall indemnify, defend and hold harmless Buyer, its officers, directors, employees Affiliates and Affiliates their respective successors and assigns and the respective Representatives of each of the foregoing (including the Company after the Closing) (collectively, the “Buyer Indemnified Purchaser EntitiesPersons”) and to hold each of them harmless from and against, against any and all actionsLosses of every kind, causes of actionsnature or description asserted against, suitsor sustained, proceedingsincurred, demandssuffered or accrued directly or indirectly by, assessmentssuch Buyer Indemnified Person that arise out of, judgments, settlements, claims, liabilities, losses, costs, Taxes, damages, fines, fees, deficiencies, expenses relate to or penalties (including reasonable attorneys’ fees, expenses and disbursements in connection with any action, suit or proceeding against such Person but excluding, in any case, loss of profits or other consequential damages and punitive or other exemplary damages, except to the extent that such damages have been awarded to a Third Party against an Indemnified Party) (collectively, “Damages”) suffered, paid or incurred by any Indemnified Purchaser Entity resulting result from or caused byas a consequence of any of the following: (i) any failure the breach or inaccuracy of any of the representations and warranties made by Seller and Seller Parent in Article IV of this Agreement (other than those made in Section 4.11 (Taxes)) to be true and correct as of the date of this Agreement or as of, and as if made on, the Closing Date (or, in the case of any representations and warranties that expressly speak as of an earlier date, as of such earlier date); provided, however, that if any such representation or warranty (other than the representations and warranties contained in Section 4.6 or Section 4.9(ii)) is qualified in any respect by materiality or Material Adverse Effect, for purposes of this paragraph, such qualifiers will in all respects be ignored; (ii) any nonfulfillment or breach by Seller or Seller Parent of any covenant or agreement of Seller or Seller Parent contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder, provided, that for purposes of determining the amount of any Loss resulting therefrom, such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to “materiality” (including the word “material”, “Business Material Adverse Effect” or any similar limitations or qualifications); and (ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or Seller Parent or any of their respective Affiliates contained in this Agreement or in any Related Agreement; (iii) any Excluded Liabilities. Asset or Excluded Liability; (biv) Notwithstanding anything the ownership, possession or operation of the Acquired Assets or the Business prior to the contrary contained in this Section 11.1Closing, the Indemnified Purchaser Entities shall be entitled to indemnification pursuant to Section 11.1(a) except with respect to any claim for indemnification Liabilities expressly assumed pursuant to Section 11.1(a)(i): 1.3; (iv) only if any bulk sales or similar statute applicable to the amount transactions contemplated by this Agreement or the failure of Damages any Person to comply with respect to such claim exceeds $100,000 the provisions thereof; (vi) any claim involving Damages equal Transaction Expenses of the Seller or Seller Parent; or (vii) any Taxes of any kind relating to or less than such amount being referred arising in connection with the transfer of the Acquired Assets to as a “De Minimis Claim”); (ii) only if, and then only Buyer or the operation of the Business prior to the extent that, the aggregate Damages to all Indemnified Purchaser Entities (without duplication), with respect to all claims for indemnification pursuant to Section 11.1(a)(i) (other than De Minimis Claims), exceed $10,000,000 (the “Deductible”), whereupon (subject to the provisions of Section 11.1(b)(iii) below) Seller and Seller Parent shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of the amount of the Deductible; and provided that the Indemnified Purchaser Entities shall not be entitled to aggregate Damages in excess of five percent (5%) of the Purchase Price; and (iii) only with respect to claims for indemnification made on or before the last day of the applicable Survival PeriodClosing.