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.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Nn Ball & Roller Inc), Asset Purchase Agreement (Nn Ball & Roller Inc)
Indemnification by Seller and the Shareholders. Subject to the conditions limitation on indemnification in Sections 8.6 and provisions of Section 12.058.7, Seller and the Shareholders, jointly and severallyseverally (collectively the “Seller Parties”), agree to pay and to indemnifydefend, defend indemnify and hold harmless Buyer, and its officers, shareholders, directors, divisions, subdivisions, affiliates, parent, employees and agents (collectively the “Buyer Indemnitees Parties”) and the Assets from and against any and all demandslosses, claims, complaintsactions, actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities, penalties, interest, expenses and other costs of any kind or amount whatsoever (including, without limitation, reasonable attorneys’ and accountants’ fees and other expenses), whether equitable or legal, matured or contingent, known or unknown, foreseen or unforeseen, ordinary or extraordinary, patent or latent, which result from or arise out of any:
(a) inaccuracy in any material representation or warranty made by either Seller or any Shareholder in this Agreement or pursuant hereto;
(b) breach of any material representation or warranty under this Agreement by either Seller or any Shareholder in this Agreement or pursuant hereto;
(c) failure of either Seller or any Shareholder to perform and observe any term, provision, covenant, agreement or condition under this Agreement or any other instrument contemplated by this Agreement, including, but without limitation, the covenants and agreements contained in Section 5.2 hereof;
(d) any liability of either Seller or any Shareholder imposed upon Buyer (including, without limitation, all liability for the generation, collection, transportation, storage or disposal of any materials, including, without limitation, Hazardous Materials, whether or not limited disclosed on Schedule 4.1(n) hereof) in which the Seller Parties have failed to pay or contest the same in good faith;
(e) Intentionally Deleted;
(f) except as otherwise provided in this Agreement, any actual liability, loss, cost, claim or damage arising from the failure of either Seller or any Shareholder to provide notice of, or obtain consent to, interestthe Closing of the transactions contemplated under this Agreement from a third party to an assignable Customer Account or any other material assignable Contract related to the Business;
(g) Intentionally Deleted;
(h) any liability of either Seller or any Shareholder imposed on Buyer resulting from one or more pending or threatened lawsuits, penalties having a basis prior to the Closing Date whether or not listed on Schedule 4.1(h);
(i) any liability to, or asserted by, any employee or former employee of Seller or beneficiary of any such employee or former employee arising from events occurring prior to the Closing Date or from either Seller or any Shareholder’s alleged conduct prior to the Closing Date which liability is imposed on Buyer;
(j) any liability of either Seller or any Shareholder to creditors of either Seller or any Shareholder which liability is imposed on Buyer whether as a result of bankruptcy proceedings or otherwise and reasonable whether as an account payable by Seller or as a claim of alleged fraudulent conveyance or preferential payments within the meaning of the United States Bankruptcy Code or otherwise; and
(k) all taxes of either Seller or any Shareholder for all taxable periods (or parts thereof) ending on or before the Closing Date or otherwise attributable to the operations, transactions, assets, or income of either Seller or any Shareholder or its or his predecessors prior to the Closing Date or otherwise attributable to either Seller or any Shareholder as a result of the consummation of the transactions contemplated hereunder, together with any expenses (including, without limitation, settlement costs and any attorneys' ’, accountants’ and consultants’ fees and disbursementsother expenses) incurred in connection with the contesting, asserted againstcollection or assessment of such taxes which liability is imposed on Buyer and the Seller Parties have failed to pay or contest the same in good faith (collectively all of the foregoing are hereinafter referred to as the “Buyer Indemnifiable Damages”). Buyer shall be deemed to have suffered such loss, imposed upon claim, action, cause of action, damage, liability, expense or other cost, or to have paid or to have become obligated to pay any sum on account of the matters referred to in subparagraphs (a) — (k) of this Section 8.1 if the same shall be paid by Buyer, or any parent, subsidiary, affiliate, or successor of Buyer, as applicable. The amount of the loss, claim, action, cause of action, damage, liability, expense or other cost deemed to be suffered, paid by Buyer shall be an amount equal to the loss, claim, action, cause of action, damage, liability, expense or other cost paid or incurred by the Buyer Indemniteessuch parent, directly or indirectly (hereinafter a "Loss" or "Losses")subsidiary, 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 Timeaffiliate, 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 herebysuccessor.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Wca Waste Corp), Asset Purchase Agreement (Waste Corp of Tennessee, Inc.)
Indemnification by Seller and the Shareholders. Subject to the conditions limitations set forth in SECTION 7.4, Seller, Kilat and provisions each of Section 12.05, Seller and the Shareholders, jointly and severally, unconditionally, absolutely and irrevocably agree to pay and to indemnifyshall defend, defend indemnify and hold harmless Buyer, and each of Buyer's officers, directors, employees, counsel, successors, assigns, and legal representatives (Buyer and such persons are collectively referred to as the Buyer Indemnitees "BUYER'S INDEMNIFIED PERSONS") 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, and shall reimburse Buyer's Indemnified Persons for, each and every Loss paid, imposed upon on or incurred by the Buyer IndemniteesBuyer's Indemnified Persons, 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 ofindirectly, relating to, or resulting from operations or arising out of any inaccuracy in any representation or warranty of Seller, Kilat or the Shareholders under the Option Agreement, the Transaction Agreements or the Exhibits thereto or any agreement, certificate or document delivered by Seller, Kilat or the Shareholders pursuant hereto in any respect, or any breach or nonfulfillment of any covenant, agreement or other obligation of Seller, Kilat or the Shareholders under the Option Agreement, the Transaction Agreements or the Exhibits thereto or any agreement, certificate or document to be delivered by Seller, Kilat or the Shareholders pursuant hereto. With respect to matters not involving Proceedings brought or asserted by third parties against Buyer's Indemnified Persons, within thirty (30) days after notification from Buyer's Indemnified Persons supported by reasonable documentation setting forth the nature of the Business circumstances entitling Buyer's Indemnified Persons to indemnity hereunder, Seller, Kilat and the Shareholders shall, at no cost or expense to Buyer's Indemnified Persons, diligently commence resolution of such matters in a manner reasonably acceptable to Buyer's Indemnified Persons and shall diligently and timely prosecute such resolution to completion; PROVIDED, HOWEVER, with respect to those valid claims that may be satisfied by payment of a liquidated sum of money and which are not disputed reasonably and in good faith by Seller, Kilat and the Assets prior to Shareholders, Seller, Kilat and the Effective TimeShareholders shall promptly pay the amount so claimed. If litigation or any other Proceeding is commenced or threatened, regardless the provisions of whether SECTION 7.3 shall control over 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, 2002immediately preceding sentence. In the event of any indemnification of Buyer pursuant to this Section 12.02, Buyer shall be entitledentitled to offset against any amounts owed by Buyer to Seller, 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 Kilat or the Shareholders in connection with this under any Transaction Agreement any amounts owed by Seller, Kilat or the transactions contemplated herebyShareholders, respectively, to Buyer hereunder.
Appears in 2 contracts
Samples: Intellectual Property Purchase Agreement (Sento Technical Innovations Corp), Option Agreement (Sento Technical Innovations Corp)
Indemnification by Seller and the Shareholders. Subject (a) After the Closing and subject to the conditions and provisions of Section 12.05this Article VI, Seller and the Shareholders, jointly and severally, agree shall indemnify, defend and hold harmless Buyer and its Subsidiaries and its and their Affiliates, and their respective officers, directors, managers, shareholders, partners, employees, agents, advisors and Representatives (each, a “Buyer Indemnified Party”) against, and reimburse any Buyer Indemnified Party for, all Losses that such Buyer Indemnified Party suffers or incurs or becomes subject to pay as a result of, arising out of, relating to or in connection with:
(i) the inaccuracy or breach of any representation or warranty made by Seller or the Shareholders in this Agreement or any of the Ancillary Agreements (other than the representations and warranties made in Article III);
(ii) any breach or failure by Seller or the Shareholders to perform any of their covenants or obligations contained in this Agreement or any of the Ancillary Agreements;
(iii) any Excluded Liabilities;
(iv) the operation of the Business prior to the Closing;
(v) any matter disclosed or required to be disclosed in Section 2.9 of the Seller Disclosure Schedule;
(vi) any action or omission by Seller during periods prior to the Closing in connection with Seller’s confirmation of the identity, work authorization and employment eligibility of its Employees;
(vii) any and all Taxes for all periods ending on or before the Closing Date;
(viii) any Environmental Claims and the investigation, remediation or correction of Environmental Conditions caused by, relating to or arising out of (A) any conditions prior to the Closing at properties currently or previously owned, leased or operated by Seller or any predecessors in interest, (B) the operations prior to the Closing of Seller or any predecessors in interest, including without limitation arising out of the disposal, Release or threatened Release of any Hazardous Substance owned, controlled or possessed by Seller or any predecessors in interest, and (C) any Release or threatened Release of any Hazardous Substance by a third party during periods prior to the Closing onto any Leased Real Property or Owned Real Property;
(ix) any failure of Seller or any predecessors in interest to comply with Environmental Laws prior to the Closing, including the installation of any pollution control equipment or other equipment to bring their businesses into compliance with Environmental Law if such equipment is installed because their businesses were not in compliance with any Environmental Laws as of the Closing;
(x) any liability, obligation or legal responsibility arising under Environmental Laws assumed by Seller or any predecessors in interest prior to the Closing pursuant to the terms of any Contract, settlement or other written and legally binding arrangement between Seller or any predecessors in interest and any other Person;
(xi) any adverse tax consequences in connection with or arising out of, and any liability otherwise relating to any failure of the Seller to comply with, Code Section 409A with respect to any nonqualified deferred compensation plan, as defined in Code Section 409A, established or maintained by Seller or any of its Affiliates or under which Seller or any of its Affiliates is a party or otherwise has or may have any liability or obligation; and
(xii) all actions, suits, proceedings, claims or demands incident to any of the foregoing or initiated to enforce the indemnification provisions herein.
(b) After the Closing and subject to this Article VI, each of the Shareholders, severally (and not jointly), shall 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 Indemnified Parties against, imposed upon and reimburse any Buyer Indemnified Party for, all Losses that such Buyer Indemnified Party suffers or incurred by the Buyer Indemniteesincurs or becomes subject to as a result of, 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 toto or in connection with the inaccuracy or breach of any representation or warranty made by such Shareholder in Article III.
(c) Notwithstanding anything to the contrary contained herein, except in the case of fraud, Seller shall not be required to indemnify, defend or hold harmless any Buyer Indemnified Party against, or resulting from operations reimburse any Buyer Indemnified Party for, any Losses (collectively, the “Non-Fundamental Representation Losses”) under Section 6.3(a)(i) (other than Losses arising out of the Business or breach of any Fundamental Representation) unless and until such Non-Fundamental Representation Losses exceed $100,000 in the Assets prior cumulative aggregate), after which point the Seller shall be liable for all subsequent indemnifiable Non-Fundamental Representation Losses incurred by the Buyer Indemnified Party 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 extent of any indemnification then remaining amounts of Buyer pursuant the Escrow Fund.
(d) Notwithstanding anything to this Section 12.02, Buyer shall be entitledthe contrary contained herein, in addition to its no event shall the rights and remedies at law of the Buyer Indemnified Parties under Sections 6.3(a) or in equity as set forth in Section 12.06, to deduct 6.3(b) be limited by any knowledge of the amount of such indemnification from Buyer Indemnified Parties or any payment due or otherwise disclosure made or to be made to by Seller or the Shareholders in connection with this Agreement or the transactions contemplated herebyShareholders.
Appears in 1 contract
Indemnification by Seller and the Shareholders. Subject to the conditions limitation set forth in SECTION 7.4, Seller, Kilat and provisions each of Section 12.05, Seller and the Shareholders, jointly and severally, unconditionally, absolutely and irrevocably agree to pay and to indemnifyshall defend, defend indemnify and hold harmless Buyer, and each of Buyer's officers, directors, employees, counsel, successors, assigns, and legal representatives (Buyer and such persons are collectively referred to as the Buyer Indemnitees "BUYER'S INDEMNIFIED PERSONS") 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, and shall reimburse Buyer's Indemnified Persons for, each and every Loss paid, imposed upon on or incurred by the Buyer IndemniteesBuyer's Indemnified Persons, 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 ofindirectly, relating to, or resulting from operations or arising out of any inaccuracy in any representation or warranty of Seller, Kilat or the Shareholders under this Agreement, the Loan Documents or any agreement, certificate or document delivered by Seller, Kilat or the Shareholders pursuant hereto in any respect, or any breach or nonfulfillment of any covenant, agreement or other obligation of Seller, Kilat or the Shareholders under this Agreement, the Loan Documents or any agreement, certificate or document to be delivered by Seller, Kilat or the Shareholders pursuant hereto (including, without limitation, Seller's obligation to pay Taxes required pursuant to SECTION 1.7). With respect to matters not involving Proceedings brought or asserted by third parties against Buyer's Indemnified Persons, within thirty (30) days after notification from Buyer's Indemnified Persons supported by reasonable documentation setting forth the nature of the Business circumstances entitling Buyer's Indemnified Persons to indemnity hereunder, Seller, Kilat and the Shareholders shall, at no cost or expense to Buyer's Indemnified Persons, diligently commence resolution of such matters in a manner reasonably acceptable to Buyer's Indemnified Persons and shall diligently and timely prosecute such resolution to completion; PROVIDED, HOWEVER, with respect to those valid claims that may be satisfied by payment of a liquidated sum of money and which are not disputed reasonably and in good faith by Seller, Kilat and the Assets prior to Shareholders, Seller, Kilat and the Effective TimeShareholders shall promptly pay the amount so claimed. If litigation or any other Proceeding is commenced or threatened, regardless the provisions of whether SECTION 7.3 shall control over 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, 2002immediately preceding sentence. In the event of any indemnification of Buyer pursuant to this Section 12.02, Buyer shall be entitledentitled to offset against any amounts owed by Buyer to Seller, 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 Kilat or the Shareholders in connection with under this Agreement any amounts owed by Seller, Kilat or the transactions contemplated herebyShareholders, respectively, to Buyer hereunder.
Appears in 1 contract
Samples: Option Agreement (Sento Technical Innovations Corp)
Indemnification by Seller and the Shareholders. Subject to the conditions and provisions of Section 12.058.5, Seller and the ShareholdersShareholders agree, jointly and severallyseverally (provided that the following indemnity shall be several with respect to any Purchaser's Loss relating to a breach of a representation or warranty relating exclusively to a Shareholder under Sections 2.3, agree 2.4, 2.5, 2.8, 2.13, 2.24 or 2.26), to pay indemnify the Purchaser and to indemnifyParent, defend their respective subsidiaries and hold harmless affiliates and each of their respective shareholders, officers, directors and employees (the Buyer Indemnitees from and "Purchaser Indemnified Parties") against any and all demands, claims, complaints, actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities, costs and expensesobligations, demands, judgments, settlements, damages (but excluding any claims for consequential damages, lost profits or punitive damages suffered directly by the Purchaser or Parent as opposed to consequential damages, lost profits or punitive damages paid by the Purchaser to a third party), Taxes, or expenses (including, but not limited to, interest, penalties penalties, fees, and reasonable attorneys' professional fees and disbursementsexpenses) and against all claims in respect thereof (including, asserted againstwithout limitation, imposed upon amounts paid in settlement and costs of investigation) or incurred by diminution in value, whether or not involving a third-party claim (herein referred to collectively as "Purchaser's Losses" or individually as a "Purchaser's Loss") to which the Buyer IndemniteesPurchaser or Parent may become subject to or which it may suffer or incur, directly or indirectly (hereinafter indirectly, as a "Loss" result from or "Losses"), by reason of or resulting from in connection with:
(a) any misrepresentation untrue representation of or breach of warranty, by Seller or the representations and warranties Shareholders in any part of this Agreement;
(b) the breach of or nonfulfillment of any covenant, agreement or undertaking of Seller or the Shareholders contained in or made pursuant to this Agreement; ;
(bc) any noncompliance with debt, liability or obligation, direct or indirect, fixed, contingent or otherwise not included in the Assumed Liabilities, that relates to Seller or the Shareholders and is based upon or arises from any covenantsact or omission, agreements transaction, circumstance, state of facts or undertakings other condition occurring or existing on or before the Closing Date, wither or not then known, due or payable;
(d) any obligation for Taxes of Seller or the Shareholders contained in for any period (or made pursuant to this Agreement; (cportion thereof) 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 Closing Date;
(e) any environmental Retained Liabilities;
(f) the failure of Seller or the Shareholders to comply with the requirements of the Uniform Commercial Code concerning bulk transfers, as in effect in the various states in which Seller or any Shareholder has assets, including, without limitation, the requirement of notice to creditors;
(g) the failure of Seller or the Shareholders to obtain any clearance certificate or similar document required by any taxing Authority in order to relieve the Purchaser or the Parent of any obligation to withhold any portion of the Purchase Price or in order to avoid any successor liability arising out offor Taxes;
(h) any liability, relating toexpense, cost, tax or resulting from operations obligation of any nature with respect to such current or former employee of the Business or other individual arising in connection with group health plan coverage required under Section 4980B of the Assets prior to Code or Part 6 of Subtitle B of Title I of ERISA; and
(i) the Effective Time, regardless failure 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 to disclose to the Purchaser or Parent a complete and accurate list of any and all severance compensation required to be paid in connection with this Agreement or the transactions contemplated herebyby this Agreement to any employee of Seller who is not a Transferred Employee. Seller and the Shareholders acknowledge that if a representation or warranty that is qualified by materiality (including a Material Adverse Effect) is breached after giving effect to such materiality qualification then the Purchaser Losses resulting from such breach will include all Purchaser Losses resulting from a breach of such representation or warranty and not solely the portion of such Purchaser Losses in excess of such materiality qualifier.
Appears in 1 contract
Indemnification by Seller and the Shareholders. Subject to the conditions Sections 13.1 and provisions of Section 12.0513.2, Seller and the Shareholderseach Shareholder agree to, and shall, jointly and severally, agree to pay indemnify Buyer and to indemnifyParent and their respective officers, defend directors, employees, stockholders, representatives and agents and hold each of them harmless the Buyer Indemnitees from against and against in respect of any and all demandsdamage, claimsloss, complaintsdeficiency, actions liability, obligation, commitment, cost or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities, costs and expenses, including, but not limited to, interest, penalties and expense (including the reasonable attorneys' fees and disbursementsexpenses of counsel) resulting from, asserted againstor in respect of, imposed upon or incurred by any of the Buyer Indemnitees, directly or indirectly (hereinafter a "Loss" or "Losses"), by reason of or resulting from following:
(a) any misrepresentation or Any misrepresentation, breach of warranty, or non-fulfillment of any obligation on the representations and warranties part of Seller or the Shareholders under this Agreement, any document relating hereto or thereto or contained in or made pursuant any schedule to this Agreement; Agreement or from any misrepresentation in or omission from any certificate, schedule, other Contract or instrument delivered by Seller or the Shareholders hereunder;
(b) any noncompliance with any covenants, agreements or undertakings All liability of Seller or the Shareholders contained for Taxes that accrue on or prior to the Closing Date and any Tax liability of Seller or the Shareholders arising in connection with the transactions contemplated hereby and any Tax liability as a result of a Taxing Authority taking the position that any former or made pursuant current subcontractor of Seller should have been, at any time prior to this Agreement; the Closing Date, treated as an employee of Seller), but excluding any Taxes for which there is an adequate accrual and reserve on the Final Closing Statement. Any Taxes, penalties or interest attributable to the operations of Seller payable as a result of an audit of any Tax Return shall be deemed to have accrued in the period to which such Taxes, penalties or interest are attributable;
(c) without limiting All demands, assessments, judgments, costs and reasonable legal and other expenses arising from, or in connection with, any action, suit, proceeding or Claim incident to any of the foregoing, each of the matters described or which were required to have been described on Schedule 3.03.; and
(d) without limiting the generality For purposes of the foregoing, determining whether Seller or 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 Shareholder shall be entitledliable to Buyer, in addition to its rights Parent or any of their respective officers, directors, employees, stockholders, representatives or agents under Section 13.3(a) above, all Material Adverse Effect and remedies at law or in equity as Material Adverse Change exceptions and qualifications set forth in Section 12.06, to deduct the amount of such indemnification from any payment due representation or otherwise made or to be made to Seller or the Shareholders warranty contained in connection with this Agreement or the transactions contemplated herebyshall be disregarded.
Appears in 1 contract
Indemnification by Seller and the Shareholders. Subject to the conditions and provisions of Section 12.05, (a) Seller and the Shareholders, Shareholders hereby jointly and severallyseverally indemnify Purchaser and Medialink and their respective officers, directors, controlling persons (if any), employees, attorneys, agents and stockholders (the "Indemnitees") against and agree to pay and to indemnify, defend and hold each of them harmless the Buyer Indemnitees from and against any and all demandsdamage, claimsloss, complaintsliability, actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities, costs and expenses, expense (including, but not limited towithout limitation, interest, penalties reasonable out-of-pocket expense of investigation and reasonable attorneys' fees and disbursementsexpenses in connection with any action, asserted againstsuit or proceeding brought by, imposed upon against or involving any Indemnitee) and cost (collectively, "Indemnified Amounts") incurred or suffered by the Buyer Indemnitees, directly or indirectly any Indemnitee arising out of (hereinafter a "Loss" or "Losses"), by reason of or resulting from (ai) any misrepresentation or breach of the representations and warranties of warranty, covenant or agreement made or to be performed by Seller or the Shareholders contained in or made pursuant to this Agreement; and (ii) the failure of Seller to comply with the Bulk Sales Laws. The agreements and indemnities of Seller and the Shareholders contained herein shall be cumulative, except that the Indemnitees shall not recover more than once for the same Indemnified Amount.
(b) The Indemnitees each agree to give notice to Seller and the Shareholders promptly, but in no event later than sixty (60) days after receipt, after learning of the assertion of any noncompliance with claim, or the commencement of any covenantssuit, agreements action or undertakings proceeding, in respect of which indemnity may be sought hereunder.
(c) Seller and the Shareholders shall not be liable under this Section 10.2 for any settlement effected without their consent of any claim, litigation or proceeding in respect of which indemnity may be sought hereunder, which consent may not be unreasonably withheld.
(d) The amount required to be paid to an Indemnitee by Seller and the Shareholders for any Indemnified Amounts hereunder shall be the amount which, after taking into account the effect of federal, state and local tax laws, places the Indemnitee in the same position as if the matter giving rise to the indemnification had not occurred and such payment had not been received. Subject to the right of set-off set forth in Section 11 hereof, which may be made at any time, such amounts shall be paid not later than fifteen (15) days after receipt by Seller and the Shareholders of written notice from the Indemnitee stating that such Indemnified Amounts are due and payable and the amount thereof and of the related indemnity payment; provided, however, that any disputed amounts shall be due and payable within thirty (30) days after such amounts are finally determined by mutual agreement or a court of competent jurisdiction to be owing by 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 herebyIndemnitees.
Appears in 1 contract
Indemnification by Seller and the Shareholders. Subject In accordance with and subject to the conditions and further provisions of Section 12.05this Article VI, Seller and the ShareholdersShareholders ("BUYER INDEMNITORS") will, jointly and severally, agree to pay and to indemnify, defend indemnify and hold harmless the Parent, Buyer Indemnitees and their Affiliates, and their respective officers, directors, agents and employees (collectively, "BUYER INDEMNITEES"), from and against and in respect of any and all demandsloss, claimsdamage, complaintsLiability, actions or causes cost and expense, including costs of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities, costs and expenses, including, but not limited to, interest, penalties investigation and reasonable attorneys' fees and disbursementsamounts paid in settlement ("INDEMNIFIED LOSSES"), asserted against, imposed upon suffered or incurred by the any one or more of Buyer Indemnitees, directly or indirectly (hereinafter a "Loss" or "Losses"), Indemnitees by reason of of, or resulting from arising out of:
(a) any misrepresentation misrepresentation, breach of warranty or breach or nonfulfillment of the representations and warranties any agreement or covenant of Seller or the Shareholders any Shareholder contained in or made pursuant to this Agreement; .
(b) any noncompliance with any covenantsall Liabilities and obligations of, agreements or undertakings of claims, demands or actions against, Seller or the Shareholders contained in Transferred Assets, whether known or made pursuant unknown, accrued, absolute, contingent or otherwise (including, without limitation, Liabilities related to Taxes), existing as of the date of this Agreement; , in any case under this Section 6.2(b) to the extent not an Assumed Obligation;
(c) without limiting the ownership, operation or conduct of the business of Seller prior to the Closing Date, except for the Assumed Liabilities; and
(d) any and all Claims, suits, proceedings, claims, demands, assessments, judgments, fees and expenses, incident to any of the foregoingforegoing or incurred in investigating or attempting to avoid any Claims, each suits, proceedings, demands, assessments, judgments, fees and expenses or to oppose the imposition of the matters described or which were required to have been described on Schedule 3.03.; (d) without limiting the generality of the foregoingany Claims, any violation of law or breach of fiduciary duty or other obligation (other than Buyer's Health Plan Obligation suits, proceedings, demands, assessments, judgments, fees 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 Timeexpenses, or (e) any environmental liability arising out ofin enforcing this Agreement, relating to, or resulting from operations including the provisions 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 herebyArticle VI.
Appears in 1 contract
Indemnification by Seller and the Shareholders. Subject to the conditions limitations contained in this Section 6, Seller, each Shareholder and provisions of Section 12.05, Seller their respective successors and permitted assigns will subsequent to the ShareholdersClosing, jointly and severally, agree to pay and to indemnify, defend severally indemnify and hold harmless Buyer, its subsidiaries and their affiliates and their respective officers, directors, employees and agents (individually, a “Buyer Indemnified Party” and collectively, the “Buyer Indemnitees Indemnified Parties”) from and against any and in respect of all demandslosses, claimsliabilities, complaintsobligations, actions or causes of actiondamages, deficiencies, actions, suits, proceedings, investigations, arbitrationsdemands, assessments, lossesorders, damagesjudgments, liabilitiesfines, penalties, costs and expensesexpenses (including the reasonable fees, includingdisbursements and expenses of attorneys, but accountants and consultants) of any kind or nature whatsoever (whether or not limited toarising out of third-party claims and including all amounts paid in investigation, interestdefense or settlement of the foregoing) sustained, penalties and reasonable attorneys' fees and disbursements, asserted against, imposed upon suffered or incurred by the or made against (collectively “Losses” and individually a “Loss”) any Buyer IndemniteesIndemnified Party arising out of, directly based upon or indirectly (hereinafter a "Loss" or "Losses"), by reason of or resulting from in connection with:
(a) any fraud or an intentional misrepresentation or breach of the representations and warranties of by Seller or the Shareholders contained any Shareholder of any of its representations or warranties in this Agreement or made pursuant to in any Schedule or agreement delivered under or in connection with this Agreement; ;
(b) any noncompliance with breach of any covenants, agreements representation or undertakings of warranty made by Seller or the Shareholders contained any Shareholder in this Agreement or made pursuant to in any Schedule or agreement delivered under or in connection with this Agreement; ;
(c) without limiting any breach of the foregoing, each of the matters described any covenant or which were required to have been described on agreement made by Seller or any Shareholder in this Agreement or in any Schedule 3.03.; or agreement delivered under or in connection with this Agreement;
(d) without limiting any liability relating to Seller’s failure to comply with the generality provisions of the foregoingany applicable bulk sales, any violation of law or breach of fiduciary duty fraudulent conveyance or other obligation law for the protection of creditors;
(other than Buyer's Health Plan Obligation e) any Excluded Liability ; or
(f) any liability for (i) any and Buyer's COBRA Obligationall Taxes imposed on Seller (or any predecessor) or the Subject Assets or for which Seller may otherwise be liable (by reason of transferee liability or otherwise), for any taxable year or period that ends on or before the Closing Date and, with respect to any plan period that includes (but does not end on) the Closing Date, the portion of such period deemed to end on and include the Closing Date, (ii) any and all Taxes imposed on a member of a consolidated, combined or arrangement assumed unitary group of which Seller or any predecessor is or was a member prior to the Closing Date; and (iii) any failure to timely pay any and all Taxes required to be borne by Buyer or LLC Seller pursuant to Section 6.02 that occurred prior to the Effective Time, 1.10 or Section 1.2(b)(v). Claims under clauses (ea) any environmental liability arising out of, relating to, or resulting from operations through (f) 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 6.1 shall be entitled, hereinafter collectively referred to as “Buyer Indemnifiable Claims,” and Losses in addition to its rights and remedies at law or in equity as set forth in Section 12.06, to deduct the amount respect of such indemnification from any payment due or otherwise made or claims shall be hereinafter collectively referred to be made to Seller or the Shareholders in connection with this Agreement or the transactions contemplated herebyas “Buyer Indemnifiable Losses.”
Appears in 1 contract
Indemnification by Seller and the Shareholders. Subject to the conditions and provisions of Section 12.05, Seller and the Shareholders, Shareholders jointly and severallyseverally unconditionally, absolutely, irrevocably and jointly and severally agree to pay and to indemnifyshall defend, defend indemnify and hold harmless Buyer, and each of Buyer's officers, directors, employees, successors or assigns (Buyer and such persons are collectively referred to as the Buyer Indemnitees "Buyer's Indemnified Persons") 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 and shall reimburse Buyer's Indemnified Persons for, each and every Loss threatened against, paid or incurred by the Buyer Indemniteesby, or imposed on, any Buyer's Indemnified Person, directly or indirectly (hereinafter a "Loss" or "Losses")indirectly, by reason of or relating to, resulting from or arising out of: (a) any misrepresentation inaccuracy in any representation or warranty, any breach or nonfulfillment of the representations and warranties any covenant, agreement or other obligation of Seller or the Shareholders contained in or made pursuant to any Shareholder under this Agreement, the schedules to the Agreement, or any agreement, certificate or other document delivered or to be delivered by Seller or one or both Shareholders pursuant hereto in any respect; (b) any noncompliance with claim made based on facts alleged which, if true, would have constituted any covenantssuch inaccuracy, agreements breach or undertakings of Seller or the Shareholders contained in or made pursuant to this Agreementnonfulfillment; (c) without limiting any the ownership or operation of the foregoing, each of Assets or any activities with respect to the matters described Assets or which were required the Business prior to have been described on Schedule 3.03.the Closing Date; or (d) without limiting the generality application or any violation of, or failure to comply with, any Legal Requirement to or by Seller or any Shareholder prior to the Closing Date. With respect to matters not involving Proceedings brought or asserted by third parties, within thirty (30) days after notification from any of Buyer's Indemnified Persons supported by reasonable documentation setting forth the nature of the foregoing, circumstances entitling any violation or all of law or breach of fiduciary duty or other obligation (other than Buyer's Health Plan Obligation and Indemnified Persons to indemnity hereunder, Seller and/or the Shareholders, at no cost or expense to Buyer's COBRA Obligation) Indemnified Persons, shall diligently commence resolution of such matters in a manner reasonably acceptable to Buyer's Indemnified Persons and shall diligently and timely prosecute such resolution to completion; provided, however, with respect to those valid claims that may be satisfied by payment of a liquidated sum of money and which are not disputed reasonably and in good faith by Seller or the Shareholders, Seller and/or the Shareholders shall promptly pay the amount so claimed. If litigation or any plan other Proceeding is commenced or arrangement assumed threatened by Buyer or LLC pursuant to a third party, the provisions of Section 6.02 that occurred prior 7.4 below shall control over the immediately preceding sentence. Notwithstanding anything herein to the Effective Timecontrary, or (e) neither Seller nor any environmental Shareholder shall have any 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(e7.2 unless the aggregate Loss (or alleged Loss) must be made on or prior exceeds $50,000. Moreover, Notwithstanding anything herein to July 4the contrary, 2002. In the event aggregate liability of any indemnification of Buyer pursuant to Seller and all Shareholders (jointly and severally) under this Section 12.02, Buyer 7.2 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 herebynot exceed $250,000.
Appears in 1 contract
Indemnification by Seller and the Shareholders. Subject to the conditions limitations set forth in SECTION 7.4, Seller, Kilat and provisions each of Section 12.05, Seller and the Shareholders, jointly and severally, unconditionally, absolutely and irrevocably agree to pay and to indemnifyshall defend, defend indemnify and hold harmless Buyer, and each of Buyer's officers, directors, employees, counsel, successors, assigns, and legal representatives (Buyer and such persons are collectively referred to as the Buyer Indemnitees "BUYER'S INDEMNIFIED PERSONS") 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, and shall reimburse Buyer's Indemnified Persons for, each and every Loss paid, imposed upon on or incurred by the Buyer IndemniteesBuyer's Indemnified Persons, 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 ofindirectly, relating to, or resulting from operations or arising out of any inaccuracy in any representation or warranty of Seller, Kilat or the Shareholders under the Option Agreement, the Transaction Agreements or the Exhibits thereto or any agreement, certificate or document delivered by Seller, Kilat or the Shareholders pursuant hereto in any respect, or any breach or nonfulfillment of any covenant, agreement or other obligation of Seller, Kilat or the Shareholders under the Option Agreement, the Transaction Agreements or the Exhibits thereto or any agreement, certificate or document to be delivered by Seller, Kilat or the Shareholders pursuant hereto (including, without limitation, Seller's obligation to pay Taxes pursuant to SECTION 1.7). With respect to matters not involving Proceedings brought or asserted by third parties against Buyer's Indemnified Persons, within thirty (30) days after notification from Buyer's Indemnified Persons supported by reasonable documentation setting forth the nature of the Business circumstances entitling Buyer's Indemnified Persons to indemnity hereunder, Seller, Kilat and the Shareholders shall, at no cost or expense to Buyer's Indemnified Persons, diligently commence resolution of such matters in a manner reasonably acceptable to Buyer's Indemnified Persons and shall diligently and timely prosecute such resolution to completion; PROVIDED, HOWEVER, with respect to those valid claims that may be satisfied by payment of a liquidated sum of money and which are not disputed reasonably and in good faith by Seller, Kilat and the Assets prior to Shareholders, Seller, Kilat and the Effective TimeShareholders shall promptly pay the amount so claimed. If litigation or any other Proceeding is commenced or threatened, regardless the provisions of whether SECTION 7.3 shall control over 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, 2002immediately preceding sentence. In the event of any indemnification of Buyer pursuant to this Section 12.02, Buyer shall be entitledentitled to offset against any amounts owed by Buyer to Seller, 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 Kilat or the Shareholders in connection with this under any Transaction Agreement any amounts owed by Seller, Kilat or the transactions contemplated herebyShareholders, respectively, to Buyer hereunder.
Appears in 1 contract
Samples: Option Agreement (Sento Technical Innovations Corp)
Indemnification by Seller and the Shareholders. Subject to the conditions and provisions ---------------------------------------------- terms of Section 12.05this Article 10, Seller and the ShareholdersShareholders shall, jointly and severally, agree to pay and to indemnify, defend defend, save and hold harmless Parent and Purchaser (collectively, the Buyer Indemnitees "Parent Indemnified Parties"), from and against any and all demands, claims, complaints, actions or causes of action, suits, proceedings, investigations, arbitrations, assessmentsactions, losses, damages, deficiencies, liabilities, costs and expenses, expenses (including, but not limited towithout limitation, interest, penalties and reasonable attorneys' and accountants' fees and disbursementsexpenses), asserted againsttogether with interest and penalties, imposed upon if any, awarded by court order or incurred otherwise agreed to (collectively, "Indemnifiable Damages", suffered by the Buyer Indemnitees, directly or indirectly (hereinafter a "Loss" or "Losses"), by reason Parent Indemnified Parties that arise out of or resulting result from any of the following (whether or not a third party initiates the proceeding or claim giving rise to such Indemnifiable Damages):
(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 foregoingrepresentations, each of the matters described warranties, covenants 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 agreements made 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 Agreement;
(b) any breach of any representation, warranty, covenant or agreement in a document, certificate or affidavit delivered by Seller or the transactions contemplated herebyShareholders at the Closing;
(c) any expenses, charges, fees, or costs associated with any audit of Seller for Taxes related to periods prior to the Closing Date, and any Taxes imposed as a result of any such audit, even though any such audit commences, or a party does not become aware of any such audit until after the Closing Date (this provision shall not, however, be deemed to limit the indemnification obligations of Parent and Purchaser for the Indemnified Tax Claim);
(d) any expenses, charges, fees, or costs associated with the Transaction in excess of $23,000, not less than $11,500 of which shall be paid to The Hishon Firm, LLC; or
(e) the Xxxx Liabilities.
Appears in 1 contract
Indemnification by Seller and the Shareholders. Subject to the conditions and provisions of Section 12.05, Seller and the Shareholders---------------------------------------------- Shareholders jointly, jointly severally and severallyindividually, agree to pay and to shall defend, indemnify, defend and hold harmless Buyer, OpSec, each director, officer, employee, or agent of Buyer, or OpSec, their subsidiaries, and each affiliate thereof, and their respective heirs, legal representatives, successors, and assigns (collectively, the "Buyer Indemnitees Group"), from and against payment of any claim made by any creditor or other person or entity (except for a claim for payment of the Assumed Liabilities), or otherwise arising, in connection with (a) the Business prior to the Closing, (b) the assertion by any third party of any claim relating to the Assets arising or incurred prior to the Closing, and (c) 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) loss connected with any misrepresentation or breach of the representations and Seller's representations, warranties of Seller or the Shareholders contained in or obligations hereunder (including claims made pursuant to this Agreement; (b) under 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(capplicable bulk sales laws), 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 claim by any indemnification of Buyer pursuant creditor or other person or entity subject to this Section 12.02section, Buyer shall be entitled, provide Seller and the Shareholders with written notice of such claim in addition to its rights and remedies at law or in equity as the manner set forth in Section 12.06paragraph 18.1 below, to deduct within ten days of Buyer's or OpSec's receipt of the amount of such indemnification from any payment due or otherwise made or to be made to claim. Thereafter, Seller or and the Shareholders shall have a period of five days within which to notify Buyer and OpSec, in connection with this Agreement the manner provided for in paragraph 17.1, that they desire to intercede on Buyer's and OpSec's behalf and defend the claim at their sole cost (including without limitation, payment of any damages awarded or agreed to, interest, penalties, court costs, and attorneys' fees). If Seller and the transactions contemplated herebyShareholders fail to so notify Buyer and OpSec and to defend the claim, Buyer and OpSec may defend such claim at their cost and maintain an action against Seller to recover all damages, interest, penalties, court costs, and attorneys' fees incurred.
Appears in 1 contract
Samples: Asset Purchase Agreement (Optical Security Group Inc)
Indemnification by Seller and the Shareholders. Subject to the conditions and provisions limitations of Section 12.0510.05, Seller and the Shareholders, jointly and severally, agree to pay and to indemnify, defend and hold harmless Buyer and Parent and their respective officers, directors, employees and agents (collectively, the "Buyer Indemnitees from and Indemnified Parties") against any and all demandsloss, claimsliability, complaintsdeficiency, actions damage, expense or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities, costs and expenses, including, but not limited to, interest, penalties and cost (including reasonable outside attorneys' fees and disbursementsexpenses) including, asserted againstwithout limitation, imposed upon environmental damages, response costs (including response costs under CERCLA or any comparable state, local or foreign law), remediation expenses, diminution in value of securities and reasonable disbursements incurred by an Indemnified Party including, without limitation, any of the Buyer Indemniteesforegoing relating to, directly resulting from or indirectly arising out of any action, suit, administrative proceeding, investigation, defense, audit or other proceeding brought by any Person or entity or Governmental Entity and any settlement or compromise thereof (hereinafter a "Loss" or collectively, "Losses"), by reason whether or not involving a Third-Party Claim or actually incurred or paid prior to the expiration of the indemnification obligation of Seller and the Shareholders hereunder, which the Buyer Indemnified Parties suffer, sustain or resulting from become subject to, as a result of any of the following:
(a) any breach or misrepresentation or breach in any of the representations and warranties of Seller or and the Shareholders contained in Article IV of this Agreement, the Disclosure Schedule, the Closing Agreements to which Seller and/or the Shareholders are a party or made any schedules, certificates or other documents delivered or to be delivered by Seller or the Shareholders pursuant to the terms of this Agreement; Agreement (collectively, the "Seller Related Documents");
(b) any noncompliance with breach of, or failure to perform, any covenants, agreements agreement or undertakings covenant of Seller or the Shareholders contained in this Agreement or made pursuant to this Agreement; in any of the Seller Related Documents;
(c) without limiting any Claim or Claim threatened in writing (including Environmental Claims) against the Buyer Indemnified Parties to the extent caused by the actions or inactions of Seller or the foregoingShareholders with respect to the Assets, each of the matters described Business or which were required the Environmental Real Property prior to have been described on Schedule 3.03.; the Closing Date;
(d) without limiting the generality of the foregoingany action brought or claim made by any third party alleging personal injury, any violation of law or breach of fiduciary duty death or other obligation (other than Buyer's Health Plan Obligation and Buyer's COBRA Obligation) with respect damage caused by the services provided by or the use of any products delivered by Seller on or before the Closing Date without regard to any plan when the event, occurrence, continuance, injury or arrangement assumed by Buyer condition giving rise to such action or LLC pursuant to Section 6.02 that occurred prior to the Effective Time, or claim shall occur;
(e) any environmental liability Excluded Liability;
(f) any Losses arising out in connection with the Release of any Hazardous Materials on, under or about, or other contamination 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 Chicago Facility occurring on or prior to July 4the Closing Date or in connection with underground storage tanks, 2002if any, currently or formerly located at the Chicago Facility (including, without limitation, any Environmental Claim, Regulatory Action, Third-Party Environmental Claim or Corrective Action Costs incurred or sustained in connection therewith). In For purposes of this Agreement, the event term "Corrective Action Costs" shall mean all costs and expenses resulting from or arising out of acts or omissions of Seller in performing or failing to perform its obligations under the Environmental Agreement or otherwise necessary to complete those actions (i) required in order to achieve compliance with Environmental Laws in connection with such Release of Hazardous Materials, or other contamination affecting the Chicago Facility or tanks or (ii) determined by a Governmental Entity to be warranted or required to address any indemnification environmental or public health concerns; to achieve compliance with applicable existing laws; to xxxxx any Release of Buyer Hazardous Materials into, or other contamination of, the soil, groundwater or other environmental media on, under, from or to any portion of the Chicago Facility; or to remove or otherwise properly address such tanks, which costs and expenses may include, without limitation, those related to the following: soil and groundwater sampling, analysis, investigation, monitoring, soil and tank excavation, disposal and related transportation costs, treatment or other clean-up activities (including, without limitation, in-situ remediation through soil venting or bio-remediation and on-site or off- site remediation through incineration or otherwise), environmental engineering or consulting, soil and groundwater monitor well installation and reasonable legal advice in connection therewith as necessary after the Closing Date; provided, however, that the aggregate liability of Seller and the Shareholders pursuant to this paragraph and Section 12.02, Buyer 10.02(g) shall be entitledlimited to three million dollars ($3,000,000.00) plus fifty percent (50%) of any Corrective Action Costs in excess of three million dollars. Furthermore, in addition the event that Seller elects not to exercise its purchase option pursuant to the Chicago lease and the Buyer subsequently takes title to the Chicago Facility, the parties agree that Seller's indemnity obligation shall be limited to its rights pro rata share of any Corrective Action Costs incurred by Buyer, taking into consideration (i) the Seller's proportionate degree of responsibility as a tenant of the Chicago Facility and remedies at law any acts or in equity omissions committed by Seller during its tenancy, and (ii) Buyer's proportionate degree of responsibility as set forth in Section 12.06, to deduct a purchaser of the amount of such indemnification from Chicago Facility and any payment due acts or otherwise made or to be made to Seller or the Shareholders in connection with this Agreement or the transactions contemplated hereby.omissions committed by Buyer; or
Appears in 1 contract
Samples: Asset Purchase Agreement (C H Robinson Worldwide Inc)
Indemnification by Seller and the Shareholders. Subject to the terms and conditions and provisions of Section 12.05set forth in this ARTICLE VI, Seller and the Shareholderseach SJB Shareholder, jointly and severally, agree to pay and to indemnifywill defend, defend indemnify and hold harmless Buyer, the Company and their respective Representatives, shareholders, controlling Persons, successors and permitted assigns (collectively, the “Buyer Indemnitees Indemnified Parties”) from and against any and all demandslosses, Liabilities, damages, costs, claims, complaints, actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities, costs judgments and expenses, including, but not limited to, including interest, penalties and penalties, reasonable attorneys' ’, consultants’ and experts’ fees and disbursementsexpenses (each, asserted againsta “Loss” and collectively, imposed upon or incurred by the Buyer Indemnitees, directly or indirectly (hereinafter a "Loss" or "“Losses"”), by reason of or arising out of, resulting from or in connection with any of the following:
(a) any misrepresentation or breach of or inaccuracy in any representation or warranty given by the Company, Seller or any Shareholder (including by the LB Trusts) in this Agreement or in any Transaction Document, including, without limitation, those representations and warranties of Seller or the Shareholders contained in or made pursuant to this Agreement; ARTICLE III;
(b) any noncompliance with breach or nonperformance of any covenants, agreements covenant or undertakings agreement of Seller or any Shareholder (including the Shareholders LB Trusts) contained in this Agreement or made pursuant to this Agreement; any Transaction Document;
(c) without limiting any of the foregoingas provided in Section 5.7 or 5.8, each of the matters described or which were required to have been described on Schedule 3.03.; certain Taxes;
(d) without limiting the generality of the foregoing, any violation of law Closing Indebtedness 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 TimeTransaction Expenses not included in, or in excess of, the Reported Third Party Obligations;
(e) any environmental all Related Party Accrued Obligations not reflected as a 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 in Final Net Working Capital; or
(f) those items set forth on Schedule 3.14(c)6.1. For clarity, provided that any claim for indemnification the Company shall have no Obligations under this Section 12.02(e) must 6.1 and shall not be made on or prior to July 4, 2002. In liable whatsoever in the event of a breach of or inaccuracy in any indemnification of Buyer pursuant to this Section 12.02representation or warranty given by the Company, 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 any Shareholder in connection with this Agreement or any Transaction Document, including, without limitation, those representations and warranties contained in ARTICLE III; furthermore, the transactions contemplated herebygiving of any such representations or warranties by the Company shall not reduce the Obligations of Seller or any Shareholder under this Section 6.1 whatsoever. For clarity, the LB Trusts shall have no obligations under this Section 6.1 and shall not be liable whatsoever in the event of a breach of or inaccuracy in any representation or warranty given by the Company, Seller or any Shareholder (including the LB Trust) in this Agreement or any Transaction Document, including, without limitation, those representations and warranties contained in ARTICLE III.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (GENTHERM Inc)
Indemnification by Seller and the Shareholders. Subject to the conditions and provisions of Section 12.05, Seller and the ShareholdersShareholders shall, jointly and severallyseverally (but subject to Section 11.8.5 hereof), agree to pay and to indemnify, defend defend, save and hold Buyer and its officers, directors, shareholders, employees, agents, representatives and affiliates (collectively, the “Buyer Indemnitees”) 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, deficiencies, liabilities, costs and expenses, including, but not limited toincluding reasonable attorneys’ fees, interest, penalties penalties, and all reasonable attorneys' fees amounts paid in investigation, defense or settlement of any of the foregoing, as well as the costs and disbursementsexpenses incurred in connection with having to issue any letters of credit (collectively, the “Buyer Damages”), asserted against, imposed upon or resulting to or incurred by the any of Buyer Indemnitees, directly or indirectly (hereinafter a "Loss" or "Losses"), by reason of or Indemnitees resulting from or in connection with:
(a) a breach of any misrepresentation or breach of the representations and warranties of made by Seller or the Shareholders contained in this Agreement, the Disclosure Schedules, the exhibits or certificates (including the certificate delivered pursuant to Section 3.2 hereof) furnished pursuant hereto by Seller or the Shareholders;
(b) any breach of any of the covenants or agreements made by Seller or the Shareholders in or made pursuant to this Agreement; ;
(bc) any Obligation of Seller other than the Specified Liabilities, including (1) any Obligation arising out of the ownership or operation of the Specified Assets or the Assets of Seller prior to the Closing Date other than the Specified Liabilities and (2) any noncompliance with any covenants“bulk sale” or fraudulent transfer law or similar law in respect of the transaction contemplated under this Agreement and (3) other than accrued Taxes or expenses described in Section 2.1.3(b) and included in the calculation of Working Capital, agreements any such Obligation that is imposed upon Buyer or undertakings its affiliates as a result of any Law under which Buyer or its affiliates have successor liability for any Tax of the Seller for a Pre-Closing Tax Period or other Obligations of Seller or Seller’s Employee Benefit Plans and (4) any Proceeding against the Buyer or its affiliates whereby Buyer or its designee would, if unsuccessful in defending such Proceeding, be required to pay any Person for or with respect to any Obligation of Seller other than the Specified Liabilities;
(d) any brokerage or finder’s fees or commission or similar payments based upon any agreement or understanding made, or alleged to have been made, by any Person with Seller or the Shareholders contained (or any Person acting on their behalf) in connection with any of the transactions contemplated by this Agreement;
(e) The amount, if any, by which Buyer is required to pay Obligations of Seller (x) of a nature contemplated by Section 6.1.9(a), subsections (i) and (ii) in excess of the dollar amount of Assumed Employee Amounts included in the Current Liabilities a part of the Working Capital and (y) for accrued Taxes and expenses of Seller contemplated by section 2.1.3(b) in excess of amounts included in the calculation of Working Capital.
(f) The failure of Seller to secure on or made pursuant before Closing all Consents required to be disclosed on Schedule 4.5.1 of this Agreement; provided, however, that in no event will the liability of Seller and the Shareholders under this subsection exceed Two Million Five Hundred Thousand Dollars (c$2,500,000) without limiting any of in the foregoingaggregate; provided, each of the matters described or which were required to have been described on Schedule 3.03.; (d) without limiting the generality of the foregoingfurther, any violation of law or breach of fiduciary duty or other obligation (other than Buyer's Health Plan Obligation and Buyer's COBRA Obligation) that with respect to any plan the Assigned Benefits Contracts, Buyer shall use commercially reasonable efforts to secure substitute contracts (comparable to the Assigned Benefits Contracts) should consent not be received by Seller before Closing and Seller shall indemnify and hold Buyer harmless with respect to Buyer’s costs and expenses in relation to securing such replacement contracts and to the extent that premiums and other costs related to such replacement contracts (but unrelated to increases in the number of Buyer’s employees as compared to the number of Transferred Employees) are in excess of the Assigned Benefits Contracts. All amounts paid by Seller or arrangement assumed by Buyer or LLC pursuant to Section 6.02 that occurred prior 11.1 or 11.2 shall, to the Effective Timeextent permitted by applicable law, or (e) any environmental liability arising out of, relating to, or resulting from operations of the Business or the Assets prior be treated as adjustments to the Effective Time, regardless of whether the matter is described or disclosed on Schedule 3.14(c), provided that any claim purchase price 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 herebyall Tax purposes.
Appears in 1 contract
Samples: Asset Purchase Agreement (Knoll Inc)