Indemnification by Seller and the Shareholders. Subject to the conditions and provisions of Section 12.05, Seller and the Shareholders, jointly and severally, agree to pay and to indemnify, defend and hold harmless the Buyer Indemnitees from and against any and all demands, claims, complaints, actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities, costs and expenses, including, but not limited to, interest, penalties and reasonable attorneys' fees and disbursements, asserted against, imposed upon or incurred by the Buyer Indemnitees, directly or indirectly (hereinafter a "Loss" or "Losses"), by reason of or resulting from (a) any misrepresentation or breach of the representations and warranties of Seller or the Shareholders contained in or made pursuant to this Agreement; (b) any noncompliance with any covenants, agreements or undertakings of Seller or the Shareholders contained in or made pursuant to this Agreement; (c) without limiting any of the foregoing, each of the matters described or which were required to have been described on Schedule 3.03.; (d) without limiting the generality of the foregoing, any violation of law or breach of fiduciary duty or other obligation (other than Buyer's Health Plan Obligation and Buyer's COBRA Obligation) with respect to any plan or arrangement assumed by Buyer or LLC pursuant to Section 6.02 that occurred prior to the Effective Time, or (e) any environmental liability arising out of, relating to, or resulting from operations of the Business or the Assets prior to the Effective Time, regardless of whether the matter is described or disclosed on Schedule 3.14(c), provided that any claim for indemnification under this Section 12.02(e) must be made on or prior to July 4, 2002. In the event of any indemnification of Buyer pursuant to this Section 12.02, Buyer shall be entitled, in addition to its rights and remedies at law or in equity as set forth in Section 12.06, to deduct the amount of such indemnification from any payment due or otherwise made or to be made to Seller or the Shareholders in connection with this Agreement or the transactions contemplated hereby.
Indemnification by Seller and the Shareholders. Seller and the Shareholders hereby jointly and severally agree to indemnify, defend and hold Buyer harmless from and against any Losses (defined below) in respect of the following:
(a) Losses resulting in bodily injury, wrongful death, and/or property damages, including without limitation, actual, punitive, direct, indirect, or consequential damages and all attorney’s fees and court costs recoverable by the injured party or parties arising out of litigation that is currently pending against Seller or arising from facts which occurred prior to Closing which, in the case of litigation, the defense of which is not being defended by Seller’s insurance carrier or, if the same results in or has resulted in a verdict or damages to be paid, the same is not being paid by Seller’s insurance company.
(b) Losses resulting from the breach of any representations, warranties, covenants or agreements made by Seller or the Shareholders in this Agreement or the Other Agreements. Any Loss for which an Indemnified Person (as defined below) is entitled to be indemnified under this Section 10.1 shall be promptly set off against the shares held in the Indemnity Escrow Account and cancelled. The number of shares to be cancelled shall be equal to the Share Price on the date on which such shares are cancelled; provided, however, that the indemnification provided herein by the Minority Shareholder shall be limited to thirty percent (30%) of any Losses for which an Indemnified Person is entitled to be indemnified under this Section 10.1, that the sole recourse of such Indemnified Person with respect to the Minority Shareholder’s share of such Losses shall be the set off of such Losses against the Minority Shareholder Shares held in the Minority Shareholder Escrow Account and that the Minority Shareholder shall have no further liability, personal or otherwise, under such indemnification.
Indemnification by Seller and the Shareholders. Seller and the Shareholders shall, jointly and severally, defend and hold harmless Buyer and its Affiliates and each of their officers, directors, employees, stockholders, members, partners and agents, and the successors to the foregoing (and their respective Affiliates' officers, directors, employees, stockholders, members, partners, and agents) (each a "Buyer Indemnified Party") from and against any and all liabilities, damages, and losses, including, without limitation, diminution in the value of the Purchased Assets, lost profits and other consequential damages, punitive damages, and all costs and expenses, including, without limitation, reasonable attorneys' and consultants' fees and expenses ("Damages") incurred or suffered as a result of or arising out of (i) the inaccuracy of any representation or warranty made by Seller or the Shareholders in this Agreement or in any certificate or other writing delivered by Seller or any Shareholder pursuant hereto or in connection herewith, (ii) the breach of any covenant or agreement made or to be performed by Seller or any Shareholder pursuant to this Agreement, (iii) any attempt (whether or not successful) by any Person to cause or require any Buyer Indemnified Party to pay or perform, any liability or obligation of, or any claim against, Seller of any kind other than the Assumed Liabilities, or (iv) any claim relating to the transactions contemplated by this Agreement asserted against a Buyer Indemnified Party by a party to a contract or relationship with Seller (other than a transferred Contract) prior to the Closing.
Indemnification by Seller and the Shareholders. Seller and the Shareholders, jointly and severally, shall defend, indemnify and hold harmless Purchaser and Inmark, and their respective Affiliates, officers, directors, shareholders, controlling persons, employees, agents, successors and assigns (each, a "Purchaser Indemnitee"), for any loss (including, without limitation, any unfavorable net adjustment to the financial statements of Seller resulting from a breach of representation), liability, claim, damage (including, without limitation, diminution in value) or expense (including, without limitation, the costs of investigation and defense and reasonable attorneys' fees and disbursements) (collectively, "Damages") suffered or incurred by any Purchaser Indemnitee arising from or in connection with (a) any breach of any of the representations and warranties of Seller and the Shareholders contained in Article 3 of this Agreement or in any certificate delivered by any of them pursuant to this Agreement or (b) any failure by Seller or the Shareholders to perform or comply with any of their respective obligations contained in this Agreement; provided, however, that for purposes of this Section 9.2, no Shareholder shall be a Purchaser Indemnitee; and provided further, that with respect to Damages arising out of a failure after the Closing (i) by Seller to perform or comply with any of its obligations contained in this Agreement, each Shareholder's liability shall be limited to such Shareholder's pro rata share (based upon such Shareholders's percentage of stock ownership of Seller immediately prior to the Closing) of the Escrow Fund (as defined in the Escrow Agreement) as the same at such time may be constituted or (ii) by any Shareholder to perform or comply with any of its obligations contained in this Agreement, only such Shareholder shall be liable for Damages under this Section 9.2 and, in such event, such Shareholder's liability shall be limited to its pro rata share (based upon its percentage of stock ownership of Seller immediately prior to the Closing) of the Escrow Fund (as so defined) as the same at such time may be constituted.
Indemnification by Seller and the Shareholders. Seller and the Shareholders shall, jointly and severally, indemnify and hold harmless at all times Buyer and its stockholders, directors, officers, employees, agents and assigns, from and against any Damages (as hereinafter defined) arising out of: (i) any inaccurate representation made by Seller or Shareholder in, pursuant to or under this Agreement or any Transaction Document; (ii) any breach of any warranty made by Seller or any Shareholder in, pursuant to or under this Agreement or any Transaction Document; (iii) any breach or default in the performance by Seller or any Shareholder of any of the covenants to be performed by Seller or any Shareholder hereunder or in any Transaction Document; and (iv) any Closing Date Liabilities (other than Assumed Liabilities).
Indemnification by Seller and the Shareholders. Seller and the Shareholders, jointly and severally, shall indemnify, defend and hold harmless Buyer and its officers, directors, shareholders, employees, agents and affiliates (collectively, all such indemnitees are referred to in this section as "Buyer") against and in respect of any and all claims, demands, losses, obligations, liabilities, damages, deficiencies, actions, settlements, judgments, costs and expenses (including reasonable costs and legal fees incident thereto or in seeking indemnification therefor) that Buyer may incur or suffer arising out of or based upon the breach by Seller or the Shareholders of any of their respective representations, warranties, covenants or agreements contained or incorporated in this Agreement or any agreement, certificate or document executed and delivered to Buyer by Seller in connection with the transactions hereunder. The indemnification provided for under this Section 8.2, as it relates to breaches of Seller's and the Shareholders' representations, warranties, covenants and agreements contained herein, shall specifically be interpreted to mean and include the following occurrences for which Seller and the Shareholders shall be liable pursuant hereto: (i) occurrences prior to the Effective Time (that result in any such breach giving rise to indemnification hereunder), regardless of when the claim is made or the loss is booked; and (ii) any nonpayment of an account receivable of Seller as of the Effective Time that is subsequently written off (after good faith, diligent efforts to collect such receivable by September 30, 1997), but only to the extent that the aggregate amount of such accounts receivable so written off exceed the reserve for doubtful accounts reflected on the Final Balance Sheet of Seller as described in Section 2.7(a)(i).
Indemnification by Seller and the Shareholders. Subject to the provisions of this Article VI, Seller and the Shareholders, jointly and severally, agree to indemnify and hold harmless Buyer, and each officer, director, employee or other agent thereof and their respective estates (each being a "Buyer Indemnified Party"), from and against any and all claims, losses, damages, liabilities and expenses (including, without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Buyer Indemnified Party in connection with each and all of the following:
(a) any misrepresentation or breach of any warranty made by Seller or either of the Shareholders in this Agreement;
(b) the nonfulfillment or breach of any covenant, Agreement or obligation of Seller or either of the Shareholders contained in or contemplated by this Agreement;
(c) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document furnished by Seller or either of the Shareholders pursuant to this Agreement or in connection with the transaction contemplated by this Agreement; and
(d) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any debt, obligation, liability or commitment, the existence of which would entitle such Buyer Indemnified Party to indemnification pursuant to clauses (a) through (c) of this Section 6.02 or would constitute a breach of any such representation, warranty or agreement under this Agreement.
Indemnification by Seller and the Shareholders. In addition to any other remedies available to Buyer under this Agreement, or at law or in equity, each of Seller and Shareholders shall, jointly and severally, indemnify, defend and hold harmless Buyer, and its respective officers, directors, employees, agents and stockholders, against and with respect to any and all claims, costs, damages, losses, expenses, obligations, liabilities, recoveries, suits, causes of action and deficiencies, including interest, penalties and reasonable attorneys= fees and expenses (collectively, the ADamages@) that such indemnitee shall incur or suffer, which arise, result from or relate to (I) any breach of, or failure by Seller or Shareholders to perform, their respective representations, warranties, covenants or agreements in this Agreement or in any schedule, certificate, exhibit or other instrument furnished or delivered to Buyer by Seller or the Shareholders under this Agreement and (ii) the Retained Liabilities.
Indemnification by Seller and the Shareholders. Subject to the other terms and conditions of this ARTICLE VI, Seller and the Shareholders shall, jointly and severally, indemnify and defend each of Buyer and its Affiliates and their respective Representatives (collectively, the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:
(a) any inaccuracy in or breach of any of the representations or warranties of Seller or any Shareholder contained in this Agreement or in any certificate or instrument delivered by or on behalf of Seller or any Shareholder pursuant to this Agreement;
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller or any Shareholder pursuant to this Agreement;
(c) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not deducted from the Base Price in the determination of the Initial Payment pursuant to Section 2.07(a)(i);
(d) (i) all Taxes of the Company or relating to the Business for all Pre-Closing Tax Periods; (ii) all Taxes of an affiliated, consolidated, combined or unitary group of which the Company (or any predecessor of the Company) is or was a member on or prior to the Closing Date by reason of a liability under Treasury Regulation Section 1.1502-6 or any comparable provisions of foreign, state or local Law; and (iii) any and all Taxes of any person imposed on the Company arising under the principles of transferee or successor liability or by contract, relating to an event or transaction occurring before the Closing Date;
(e) any Excluded Asset or any Excluded Liability; or
(f) any Third Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of Seller or any of its Affiliates (other than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on or prior to the Closing Date.
Indemnification by Seller and the Shareholders. Seller and the Shareholders, jointly and severally, shall indemnify and hold harmless Buyer and its Affiliates, officers, directors, managers, equity holders, parents, subsidiaries, partners, employees, agents and representatives, and any Person claiming by or through any of them (each, a “Buyer Indemnified Party”), against and in respect of any and all claims, costs, expenses, damages, liabilities, losses or deficiencies (including reasonable attorneys’ fees and other costs and expenses incident to any suit, action or proceeding) (“Damages”) arising out of, resulting from, or incurred in connection with: (a) any inaccuracy or breach in any representation or warranty made by Seller or any Shareholder in this Agreement or in any other Transaction Document or certificate delivered pursuant hereto; (b) the breach by Seller or any Shareholder of any covenant or agreement to be performed by it or them hereunder; (c) any Seller Misconduct Claims, (d) Seller’s expenses in connection with the Transaction, (e) any litigation or other legal proceeding of any nature against Seller in connection with or arising from or related to any Acquired Assets commenced, or filed in respect of claims arising or accruing, prior to the Closing Date, and (f) any claims or Damages arising from any violation of applicable “bulk sale” laws.
