Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following: (i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller; (ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement; (iii) any Excluded Liability; (iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing; (v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer; (vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or (vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union. (b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Icad Inc)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnifyindemnify Purchaser and its Affiliates (including the Company) and each of their respective officers, defend directors, employees, members, managers, general or limited partners, successors, assigns, Affiliates, agents and other Representatives (collectively, the “Purchaser Indemnitees”) against, and pay and hold them harmless Buyerfrom, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kindLoss suffered or incurred by any such Purchaser Indemnitee, nature directly or description asserted againstindirectly, as a result of, relating to, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the followingarising from:
(i) the any breach or inaccuracy of any representation or warranty of (x) Seller or the Company contained in this Agreement or the Seller Officer Certificates or (y) Seller contained in the Seller Release (the “Seller Release Representations”);
(ii) any breach or failure (i) by Seller or the Company to comply with, perform or discharge any obligation, agreement or covenant contained in this Agreement or the Asset Transfer Agreement to be performed prior to the Closing or (ii) by Seller to comply with, perform or discharge any obligation, agreement or covenant contained in this Agreement, any Related the Asset Transfer Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise Seller Release to be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior performed following to the Closing;
(iii) fraud or intentional misrepresentation by the Company (with respect to fraud or intentional misrepresentation prior to the Closing) or Seller;
(iv) any Excluded Liability; and
(v) any Pre-Closing Taxes; provided, that for purposes of determining whether there has been a breach or inaccuracy of any representation or warranty, or the amount of any Loss related to any such breach or inaccuracy, under Section 10.01(a)(i), the representations and warranties set forth in this Agreement and in the Seller Officer Certificates furnished pursuant to this Agreement shall be considered without giving effect to any materiality limitation or qualification (including the terms “material” or “Company Material Adverse Effect”).
(b) Notwithstanding the foregoing or anything to the contrary in this Agreement, Seller shall not be required to indemnify any Purchaser Indemnitee and Seller shall not have any liability:
(i) under Section 10.01(a)(i), unless the aggregate of all Losses for which Seller would be liable, but for this Section 10.01(b)(i), exceeds on a cumulative basis an amount equal to $2,000,000, and then Seller shall be required, subject to the limitations in Section 10.01(b)(ii), to indemnify the Purchaser Indemnitees for all such Losses (including the first $2,000,000 of such Losses); provided, however, that no individual claim by the Purchaser Indemnitees shall be asserted under Section 10.01(a)(i) unless and until the aggregate amount of Losses that would be payable pursuant to such claim (or series of related claims or claims related to similar facts or circumstances) exceeds an amount equal to $25,000; provided, further that the limitations in this Section 10.01(b)(i) shall not apply to any claim for indemnification to the extent arising out of a breach of any Seller Fundamental Representation or any Seller Release Representation; and
(ii) (A) under Section 10.01(a)(i) in excess of the Escrow Amount; provided, however, that this clause (A) shall not apply to any claim for indemnification to the extent arising out of a breach of any Seller Fundamental Representations or any Seller Release Representation, and (B) under Section 10.01(a) in excess of 100% of the Final Purchase Price.
(c) Subject to the limitations set forth in Section 10.01(b), (i) with the exception of any claim for indemnification arising out of a breach of any Seller Fundamental Representation or any Seller Release Representation, recourse by the Purchaser Indemnitees to the Escrow Fund shall be Purchaser Indemnitees’ sole and exclusive remedy for monetary Losses resulting from the matters referred to in Section 10.01(a)(i), and (ii) any payments which may be required by Seller in respect of the amount of such Losses shall be satisfied first from the Escrow Fund out of the then remaining Escrow Amount, and then (to the extent such claims are not limited to the Escrow Amount) by wire transfer from Seller pursuant to Section 10.03(d).
(d) In no event shall Seller be obligated to indemnify any Purchaser Indemnitee with respect to any Loss to the extent that such Loss was expressly taken into account in the calculation of the Closing Purchase Price Elements or Final Purchase Price Elements pursuant to Section 2.02.
(e) Seller shall not be liable (i) for any Taxes of any kind relating the Company or the Business incurred after the Closing to the extent attributable to actions taken by Purchaser or arising in connection with the transfer Company outside of the Acquired Assets to Buyer;
(vi) ordinary course of business on the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to Closing Date after the Closing or (bii) except with respect to a breach of the Surviving Existing License Agreement Provisions following representations and warranties contained in Section 3.05(h), with respect to the Closing as set forth herein; or
amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company (vii) e.g., tax credits), including the failure ability of Seller Purchaser or any of its Affiliates (including the Company) to comply with any Laws applicable to utilize such Tax assets or Tax attributes after the import or export Closing, unless such Tax asset was reflected as an asset in the calculation of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover Closing Working Capital pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person2.02.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Yelp Inc), Unit Purchase Agreement (GrubHub Inc.)
Indemnification by Seller. (a) From Seller covenants and after the Closing, Seller shall agrees to indemnify, defend defend, protect and hold harmless BuyerBuyer and its officers, its Affiliates and their respective directors, employees, stockholders, assigns, successors and assigns and the respective Representatives of each of the foregoing Affiliates (the individually, a “Buyer Indemnified PersonsParty” and collectively, “Buyer Indemnified Parties”) from from, against and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out in respect of, relate to or result from or as a consequence of any of the following:
(i) all Losses suffered, sustained, incurred or paid by any Buyer Indemnified Party in connection with, resulting from or arising out of or relating to, directly or indirectly: Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Exchange Act of 1934, as amended.
(A) any breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained set forth in this Agreement or any certificate, document or instrument delivered by or on behalf of Seller in any Related Agreementconnection herewith;
(iiiB) any Excluded Liabilitybreach of any covenant, obligation or agreement on the part of Seller in this Agreement or any certificate, document or instrument delivered by or on behalf of Seller in connection herewith;
(ivC) the ownership, possession claims or operation causes of actions (including but not limited to for injuries or death of persons or damage to property) relating in any way to the Acquired Assets by Seller arising prior to the Closing, including but not limited to claims or any Action with respect causes of action relating to the manufacture, promotion, use, sale or distribution of Product;
(D) claims or causes of actions (including but not limited to for injuries or death of persons or damage to property) arising from any Acquired Intellectual Property delivered, installed or used subsequent to the Closing relating to the manufacture of Product (including Inventory) prior to the Closing;
(vE) any Taxes of any kind relating to negligent or arising reckless actions by Seller or its employees in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any fulfillment of its obligations underset forth in this Agreement, (a) the Existing License Agreement prior including with respect to the Closing storage, sale, shipment, promotion or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export distribution of the Acquired Software in Products during the United States, Canada and the European UnionTransition Period.
(bF) Subject any Excluded Liabilities.
(ii) any and all Losses arising from the foregoing or to the other terms and conditions enforcement of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person6.2(a).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Igi Laboratories, Inc), Asset Purchase Agreement (Igi Laboratories, Inc)
Indemnification by Seller. (a) From Subject to the provisions of this Article VIII, and other than with respect to Taxes, which shall be governed exclusively by Section 6.02, from and after the Closing, Seller shall indemnify, defend indemnify Buyer and hold harmless Buyer, its Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling Persons, officers, directors, general or limited partners, members, managers, employees, agents, representatives, successors and assigns and the respective Representatives of each of the foregoing assignees (collectively, the “Buyer Indemnified PersonsParties”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such and shall hold the Buyer Indemnified Person that arise Parties harmless from, any Losses resulting from, arising out of, relate to or result from or as a consequence of any of incurred by the followingBuyer Indemnified Parties in connection with:
(i) the any breach or inaccuracy of any representation and warranty contained in Article II and/or Article III or any certificate delivered by or on behalf of Seller hereunder at or prior to the Closing (with such representation or warranty being read without regard to any qualifications or limitations relating to materiality, Material Adverse Effect or similar expressions for the purpose of Seller contained in this Agreementcalculating the amount of any Losses resulting from, any Related Agreement arising out of, or any exhibit or certificate delivered hereunder; provided, however, in the event incurred by the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of Parties in connection with such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellerbreach);
(ii) the any breach of any covenant or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates agreement contained in this Agreement to be performed or in any Related Agreementcomplied with by Seller;
(iii) any Excluded Liability;(x) Unpaid Transaction Expenses and/or (y) Indebtedness for Borrowed Money that is outstanding immediately prior to the Closing, in each case, to the extent not taken into account for purposes of determining the Closing Date Purchase Price and/or repaid in accordance with Section 1.03(c); and/or
(iv) any claims relating to the ownershipBusiness, possession this Agreement or operation the transactions contemplated by this Agreement, by any past, present or future holder of the Acquired Assets by any equity or other interests whatsoever in Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionAffiliate thereof.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to The indemnification provided for in Section 7.2(a)(i8.02(a) shall be satisfied subject to the following limitations:
(i) Seller shall not have any liability under Section 8.02(a)(i) (other than in respect of any Seller Fundamental Representation) unless the aggregate of all Losses relating thereto for which Seller would be liable, but for this section, exceeds on a cumulative basis, an amount equal to 1% of the sum of (x) the Closing Date Purchase Price and (y) the Base Transaction Incentive Plan Amount (the “Deductible”), and then only to the extent such Losses exceed the Deductible;
(ii) Seller’s aggregate liability under Section 8.02(a)(i) (other than in respect of any Seller Fundamental Representation) shall in no event exceed 15% of the sum of (x) the Closing Date Purchase Price and (y) the Base Transaction Incentive Plan Amount (the “Cap”);
(iii) no claim for indemnification by reducing the Holdback Reserve Amount Buyer Indemnified Parties under Section 8.02(a)(i) (other than in respect of any Seller Fundamental Representation) shall be asserted where the amount that would otherwise be payable by Seller hereunder relating to such claim is less than $25,000; and
(iv) in no event will the aggregate liability of Seller for all Losses claimed by the Buyer Indemnified Parties under this Agreement exceed the Purchase Price actually received by Seller.
(c) Notwithstanding any other provision in this Agreement to the contrary, Seller shall not be liable to, or indemnify, the Buyer Indemnified Parties for any Losses solely to the extent such Losses were taken into account in the final determination of Net Working Capital pursuant to Section 2.31.04. Any In no event shall (i) Seller be liable for (x) any Losses that become payable are punitive or consequential damages, regardless of the form of action through which such damages are sought or (y) any Losses that are lost profits of any Person (but only to the extent that such lost profits would be deemed to constitute consequential damages), unless, in the case of each of clauses (x) and (y) immediately above, but subject to the other limitations in this Section 8.02, such Losses are recovered by a third party in a Third Party Claim pursuant to an order entered against an Indemnified Party or in a settlement agreement to which an Indemnified Party is a party and/or (ii) any Buyer Indemnified Person Party calculate Losses on the basis of any (x) diminution in the value of debt or equity securities or the market value of loans or (y) multiple of revenues, cash flows, profits or similar methodologies.
(d) The Buyer Indemnified Parties shall not be entitled to recover any Losses relating to any matter arising under one provision of this Agreement to the extent that the Buyer Indemnified Parties had already recovered such Losses with respect to such matter pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer other provisions of immediately available funds to an account designated in writing by such Buyer Indemnified Personthis Agreement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Harland Clarke Holdings Corp), Securities Purchase Agreement (M & F Worldwide Corp)
Indemnification by Seller. (a) From and after the Closing, Seller shall will indemnify, defend defend, and hold harmless BuyerBuyer from, its Affiliates against, and their respective successors with respect to any claim, liability, obligation, loss, damage, assessment, judgment, cost, and assigns expense (including, without limitation, reasonable attorneys’ and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from accountants’ fees and against any costs and all Losses of every kindexpenses reasonably incurred in investigating, nature or description asserted preparing, defending against, or sustainedprosecuting any litigation or claim, incurredaction, suffered suit, proceeding, or accrued directly or indirectly bydemand) (collectively, such Buyer Indemnified Person that arise out ofthe “Loss”), relate to or result from or as a consequence of any kind or character arising out of the following:
or in any manner incident, relating, or attributable to (i) subject to Section 16.10, the breach or inaccuracy of any representation or breach of any warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related certificate, instrument, or other document or agreement executed by Seller in connection with this Agreement or otherwise made or given in writing in connection with this Agreement;
, (ii) any failure by Seller to perform or observe any covenant, agreement, or condition to be performed or observed by it under this Agreement or under any certificate, instrument, or other document or agreement executed by it in connection with this Agreement, (iii) any Excluded Liability;
claims relating to the enforcement of Buyer’s rights under this Agreement, and (iv) any liabilities, obligations, debts, contracts, or other commitments of any kind or nature whatsoever, whether known or unknown and whether accrued, fixed, absolute, conditional, determined, determinable, or otherwise, of Seller existing on the ownershipClosing Date or arising out of, possession or operation resulting from, any transaction entered into, or any state of facts existing, prior to or at the Closing Date which are imposed on Buyer (and after Closing, the Company) as result of this Transaction; provided, however, that cancellation of the Acquired Assets by Escrowed Shares shall be the sole source of payment of any indemnified Loss and the aggregate amount of all such indemnified Losses shall not exceed 10% of the Purchase Price. No Individual Seller shall have any obligation or liability under this Article XV, and Seller shall be obligated and liable for any Action Loss attributable to any Individual Seller; provided, however, that each Individual Seller and the Seller shall have a separate contractual arrangement with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionall such Losses.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Utek Corp)
Indemnification by Seller. (a) From Without limiting or otherwise affecting the indemnity provisions of any Ancillary Agreement, from and after the ClosingClosing Date, Seller shall will indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) Acquiror Indemnitees from and against against, and will reimburse such Acquiror Indemnitee with respect to, any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out ofresult from, relate to or result from arise, whether prior to or as a consequence following the Closing, out of any of the following:following items (without duplication):
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) including the failure of Seller or any other member of its Affiliates the Seller Group or any other Person to comply with any Laws applicable pay, perform, fulfill, discharge and, to the import or export of the Acquired Software extent applicable, comply with, in the United States, Canada due course and the European Union.in full such Liabilities;
(b) Subject any breach by Seller or any other member of the Seller Group of any covenant to be performed by such Persons pursuant to this Agreement or the Ancillary Agreements at or after the Closing;
(c) any breach or inaccuracy of any of the representations and warranties of Seller contained in Article II of this Agreement or in any certificate delivered by Seller at the Closing; and
(d) any claim made by or in respect of any person employed or formerly employed by Seller or any member of the Seller Group, other than a Continuing Employee, that the employment of such person was required to transfer to the other terms and conditions Acquiror Group by the operation of this Article VIIAgreement or by operation of Law; provided, however, that nothing herein will be deemed to require Seller to indemnify any Losses that a Buyer Indemnified Person is entitled Acquiror Indemnitee for any claims made by or in respect of such person, relating to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance his or her continued employment with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonAcquiror Group after the Closing Date.
Appears in 2 contracts
Samples: Transaction Agreement (Kellogg Co), Transaction Agreement (Kellogg Co)
Indemnification by Seller. Without limiting any other rights that an Indemnified Party may have hereunder or under applicable law, and subject to Seller's right to cure as set forth in this Agreement, the Seller hereby agrees to pay on demand to the Purchaser and its parent, Subsidiaries and Affiliates and their directors, officers, employees and authorized agents Indemnified Amounts which may be imposed on, incurred by or asserted against an Indemnified Party as a result of any claim, action, demand, proceeding or suit, whether or not groundless, that in any way arises out of or results from:
(a) From and after Use by the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence proceeds of any Sale or in respect of the following:any Sold Program Contract;
(ib) Reliance by the breach or inaccuracy of Purchaser on any representation or warranty of made or deemed made by the Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement officers) under or in any Related connection with this Sale Agreement;
(iiic) Any material breach by Seller of its representations and warranties, covenants or obligations, or material failure by the Seller to comply with any Excluded Liabilityterm, provision or covenant, contained in this Sale Agreement or any agreement executed in connection with this Sale Agreement;
(ivd) The failure to vest and maintain vested in the ownershipPurchaser, possession or operation to transfer to the Purchaser, legal and equitable title to and ownership of the Acquired Assets by Seller Program Contracts that are, or are purported to be, Sold Program Contracts, together with all proceeds in respect thereof, free and clear of any Action with respect to Adverse Claim (except as permitted hereunder) whether existing at the time of the proposed sale of such Program Contract or arising from at any Acquired Intellectual Property deliveredtime thereafter, installed or used prior and without limitation to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as remedies set forth hereinin Section 4.4; or
(viie) the failure of Any act or omission by Seller or its agents, officers or employees or controlled Affiliates or by any Dealer arising out of its Affiliates or relating to the purchase by the Seller of any Contract, the sale by the Dealer of any Contract or the sale by the Dealer of a Financed Vehicle or related product or service to an Obligor, which results in a material loss by or claim against the Purchaser, including any claim by an Obligor or Governmental Authority that the form, terms or provisions of the Contract fail to comply with any Laws the requirements of applicable federal and state laws. If a claim for indemnification is tendered by an Indemnified Party to the import or export of Seller, the Acquired Software Seller may, at its option, repurchase the Program Contracts involved in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied such claim in accordance with the preceding sentence terms of Section 4.4 of this Agreement and the Repurchase Price for such Program Contracts actually paid by the Seller to the Purchaser shall be payable by taken into account in determining the amount of the loss that the Indemnified Party has incurred as a result of such claim. The Seller upon demand, by wire transfer acknowledges that the Purchaser may assign its rights of immediately available funds indemnity granted hereunder to an account designated assignee and upon such assignment, such assignee shall have all rights of the Purchaser hereunder and may in writing by turn assign such Buyer Indemnified Personrights. The Seller agrees that, upon such assignment, such assignee may enforce directly, without joinder of the Purchaser, the indemnities set forth in this Section.
Appears in 2 contracts
Samples: Contract Sale Agreement (National Auto Finance Co Inc), Contract Sale Agreement (National Auto Finance Co Inc)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnifyshall, defend subject to the provisions of this Article XII, indemnify and hold harmless each of Buyer, its Affiliates Parent and their respective successors and assigns and the respective Representatives of each of the foregoing Affiliates (collectively, the “Buyer Indemnified PersonsParties”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, that are suffered or accrued directly or indirectly by, such incurred by any Buyer Indemnified Person that arise Party arising out of, relate to or result resulting from or as a consequence of relating to any of the followingfollowing matters:
(ia) prior to their expiration in accordance with Section 12.01, the breach or inaccuracy of any representation or warranty made by Seller in Article IV (in each case, other than the Non-Healthcare Fundamental Seller Representations and the Healthcare Fundamental Seller Representations) as of the Closing Date, provided that each such representation or warranty shall be read disregarding any Company Material Adverse Effect or materiality qualification, except (i) for such qualifications in Section 4.07(a) and (b) and (ii) that materiality-based qualifiers that are included in a defined term shall not be so disregarded;
(b) prior to their expiration in accordance with Section 12.01, the inaccuracy of any of the Non-Healthcare Fundamental Seller contained Representations, as of the Closing Date, provided that each such representation or warranty shall be read disregarding any Company Material Adverse Effect or materiality qualification, except that materiality-based qualifiers that are included in a defined term shall not be so disregarded;
(c) prior to their expiration in accordance with Section 12.01, the inaccuracy of any of the Healthcare Fundamental Seller Representations, as of the Closing Date, provided that each such representation or warranty shall be read disregarding any Company Material Adverse Effect or materiality qualification, except (i) for such qualification in Section 4.11(g) and Section 4.11(h)(1) and (ii) that materiality-based qualifiers that are included in a defined term shall not be so disregarded;
(d) prior to their expiration in accordance with Section 12.01, the failure by Seller, Company or Company Subsidiary to perform any covenant or agreement made by Seller or, solely with respect to covenants or agreements that by their terms apply or are to be performed prior to the Closing, Company or Company Subsidiary in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(e) as a result of (i) any and all income Taxes imposed on Company or Company Subsidiary, or with respect to the Business, for any Tax period (and the portion of any Straddle Period) ending on or before the Closing Date; (ii) any and all Taxes of any Person (other than Company, Company Subsidiary or Parent or any of its Affiliates) imposed on Company or Company Subsidiary as a transferee or successor, by contract or pursuant to any law, rule or regulation (except, in each case, Taxes imposed pursuant to a contract the breach principal subject matter of which is not Taxes), which Taxes are due with respect to any Tax period (and the portion of any Straddle Period) ending on or non-fulfillment ofbefore the Closing Date and relate to an event or transaction occurring prior to the Closing, (iii) any Taxes of any member (other than Company or non-compliance withCompany Subsidiary) of any affiliated, consolidated, combined or unitary group (other than any agreement, obligation or covenant such group of Seller which Parent or any of its Affiliates contained in this Agreement is a member) for which Company or in Company Subsidiary is liable as a result of Company’s or Company Subsidiary’s being a member of such group before the Closing, including pursuant to Treasury Regulations
Section 1. 1502-6 (or under any Related Agreement;
(iii) any Excluded Liability;
similar provision of foreign, state or local Law); and (iv) any and all Taxes incurred that arise or result from the ownershipfailure of Company, possession Company Subsidiary or operation Seller to perform any of their covenants or agreements in Article IX or Section 6.01(a)(vi), provided, however, that in the Acquired Assets by Seller case of Company or any Action with respect Company Subsidiary this clause (iv) shall apply only to or arising from any Acquired Intellectual Property delivered, installed or used such failures occurring prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.and
Appears in 2 contracts
Samples: Stock Purchase Agreement (General Electric Co), Stock Purchase Agreement (Neogenomics Inc)
Indemnification by Seller. (a) From After the Closing and after subject to the Closingother provisions of this Article XIII and Section 14.01, Seller shall indemnify, defend and hold harmless Buyer, Buyer and its Affiliates (including the Acquired Companies) and their respective Representatives, successors and permitted assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsParties”) from and against any against, and pay and reimburse Buyer for, all Losses of every kind, nature that any Buyer Indemnified Party at any time suffers or description asserted againstincurs, or sustainedto which any Buyer Indemnified Party otherwise becomes subject to, incurred, suffered or accrued directly or indirectly byindirectly, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence result of any of the followingor in connection with:
(i) the inaccuracy or breach or inaccuracy of any representation or warranty made by Seller in Article IV or Article V of this Agreement except to the extent any such inaccuracy or breach results from any Requirement of the Rehabilitator;
(ii) any breach or failure by Seller to perform any of its covenants or obligations contained in this Agreement except to the extent any such breach or failure to perform results from any Requirement of the Rehabilitator;
(iii) the Specified Matter (the “Special Indemnity”); or
(iv) any Indemnification Agreement, .
(b) Notwithstanding any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in other provision to the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Lossescontrary, Seller shall not be obligated required to indemnify, defend or hold harmless any Buyer Indemnified Party against any Losses pursuant to Section 13.01(a)(i) (under other than Losses to the extent arising as a result of the inaccuracy or breach of any Fundamental Representation or representations or warranties contained in Section 5.20 or Section 5.21 made by Seller, as to which the limitations in this Section 7.2(a)(isentence shall not apply) (i) with respect to any claim or otherwise) series of related claims arising from the same underlying facts, events or circumstances unless such claim or series involves Losses in excess of $50,000 (nor shall any such claim, or series of related claims arising from the same underlying facts, events or circumstances, that does not meet the $50,000 threshold be applied to indemnify or considered for purposes of calculating the aggregate amount of the Buyer Indemnified Persons or otherwise be liable to Parties’ Losses for which Seller has responsibility under clause (ii) below), and (ii) until the aggregate amount of the Buyer Indemnified Parties’ Losses exceeds $500,000 (the “Deductible”), after which Seller shall, subject to the extent of immediately succeeding clause, be obligated to indemnify and hold harmless the Buyer Indemnified Parties against all such Losses that arise out ofof the Buyer Indemnified Parties that, relate in the aggregate, are in excess of the Deductible not to exceed the General Indemnification Cap (other than in respect of Losses arising from or result from (a) any combination by Buyer relating to the inaccuracy or breach of any Pre-Closing Product with any other product Fundamental Representation or servicerepresentations or warranties contained in Section 5.20 or Section 5.21 made by Seller, (bin which case Seller’s aggregate liability under Sections 13.01(a)(i) shall not exceed the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, Indemnification Cap).
(c) Notwithstanding any other provision to the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) contrary, Seller’s compliance with specifications obligation to indemnify and directions provided by hold harmless the Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation Indemnified Parties against all Losses of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(iParties under Sections 13.01(a)(i), 13.01(a)(ii), 13.01(a)(iii) and 13.01(a)(iv) shall be satisfied by reducing not exceed the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonIndemnification Cap.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ares Management Corp), Stock Purchase Agreement
Indemnification by Seller. (a) From Subject to the limitations set forth herein, from and after the Closing, Seller shall indemnifyindemnify and defend Buyer against, defend and shall hold Buyer harmless Buyerfrom, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (the collectively, “Buyer Indemnified PersonsLosses”) from and against any and all Losses of every kindresulting from, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise arising out of, relate to or result from incurred by Buyer in connection with, or as a consequence of otherwise with respect to: (a) any of the following:
(i) the breach or inaccuracy of any representation or and warranty of Seller contained in this Agreement; (b) any breach of any covenant of Seller contained in this Agreement; (c) any Excluded Liabilities; and (d) all Taxes (or the non-payment thereof) of Seller for all taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Closing Date. Seller shall not be liable for any Loss or Losses (x) unless the claim for such Loss or Losses is brought prior to expiration of the Escrow Period, and (y) unless and until the aggregate amount of all Losses incurred by Buyer exceeds $500,000 (the “Threshold”), whereupon Seller shall be liable for all such Losses from the first dollar thereof. Notwithstanding anything to the contrary contained herein, the foregoing Threshold shall not apply to a breach of any Related representation and warranty of Seller that constitutes Actual Fraud of Seller. Notwithstanding any provision in this Agreement or any exhibit or certificate delivered hereunder; provided, howeverto the contrary, in the event that Buyer timely submits an indemnification claim under Section 9.2(a) for a breach of representation or warranty under Section 2.22(a) related to a failure to pay Accounts Receivable by GDC Technics, Ltd. post-Closing, the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller Parties shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify cause the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation amount of the Acquired Assets by Seller or any Action with respect claimed Loss related to or arising from any Acquired Intellectual Property delivered, installed or used prior such claim to be held in the Closing;
Escrow Account for an additional seventy-five (v75) any Taxes of any kind relating to or arising in connection with days following the transfer expiration of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada Escrow Period and the European Union.
(b) Subject Parties shall cooperate in good faith and utilize commercially reasonable efforts to collect the other terms and conditions of this Article VIIunpaid Accounts Receivable from GDC Technics, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.Ltd.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Astronics Corp)
Indemnification by Seller. (a) From Subject to the limitations set forth in Section 8.1 and Section 8.5, from and after the Closing, Seller shall indemnify, defend defend, save and hold harmless BuyerPurchaser and its Representatives (collectively, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified PersonsPurchaser Indemnitees”) harmless from and against any all demands, claims, actions or causes of action, losses, damages, diminution in value, deficiencies, Liabilities, costs and expenses (including reasonable legal fees, interest, penalties, and all Losses reasonable amounts paid in investigation, defense or settlement of every kindany of the foregoing; collectively, nature or description asserted against, or sustained, incurred, “Damages”) suffered or accrued incurred by any Purchaser Indemnitee, directly or indirectly byindirectly, such Buyer Indemnified Person that arise in connection with or arising out of, relate to or result from or as a consequence of any of the following:
(i) the Seller’s breach of, or any inaccuracy of in, any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related certificate delivered by Seller pursuant to this Agreement;
(ii) Seller’s breach or nonfulfillment of any covenant or agreement made by Seller in this Agreement;
(iii) any Excluded Liabilitythe Retained Liabilities;
(iv) the ownership, possession or operation failure of the Acquired Assets by Seller Parties to comply with any bulk sales (including Section 6 of the Retail Sales Act (Ontario) and any other similar legislation of another province, as applicable) or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior fraudulent transfer laws that may be applicable to the Closing;Acquisition; or
(v) any Taxes of any kind relating to or arising and all actions, suits, proceedings, demands, judgments, damages, awards, costs and expenses (including reasonable legal fees, as well as reasonable third-party fees and expenses) incurred in connection with the transfer enforcement of the Acquired Assets rights of any such Purchaser Indemnitee with respect to Buyer;
clauses (vii) through (iv) above. Notwithstanding anything in this Agreement to the failure contrary, for the purposes of Article VIII, the representations and warranties of Seller to comply with, in this Agreement that are qualified by materiality or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) Material Adverse Effect shall be satisfied by reducing the Holdback Reserve Amount that would otherwise deemed to be payable to Seller pursuant to Section 2.3. Any Losses that become payable to made with such materiality or Material Adverse Effect qualifiers for purposes of determining whether a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence breach of any such representation or warranty has occurred, but shall be payable by Seller upon demand, by wire transfer deemed disregarded for purposes of immediately available funds to an account designated in writing by such Buyer Indemnified Persondetermining the amount of any related indemnifiable Damages.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Integrated Device Technology Inc), Asset Purchase Agreement (Integrated Device Technology Inc)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VIISection 8, Seller shall indemnify and defend each of Buyer and its Affiliates (including the Company and any Subsidiary) 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 that a incurred or sustained by, or imposed upon, the Buyer Indemnified Person is entitled Indemnitees based upon:
(a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in the Seller Transaction Documents or any certificate delivered to recover Buyer pursuant to Section 7.2(a)(i6.01(f), 6.01(h) or 6.01(i) (other than in respect of Section 2.21, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses 7), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that become payable expressly relate to a Buyer Indemnified Person specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller, the Company or any Subsidiary pursuant to any Seller Transaction Document (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Section 7, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to Section 7.2(a7); or
(c) that are (i) any Actions or Taxes related to or resulting from the redemption by the Company of any Company Shares or the Merger (defined below), including any Actions or Taxes arising under ERISA or the Code; or (ii) if the Company has not satisfied in accordance redeemed the Company Shares prior to or concurrently with the preceding sentence shall be payable by Seller upon demandClosing, by wire transfer the Company completing a merger (the “Merger”) under Section 253 of immediately available funds the Delaware General Corporation Law (“DGCL”) after the Closing to an account designated acquire 100% of the Common Stock of the Company, including, in writing by such Buyer Indemnified Personconnection therewith, the Company’s payment to former holders of Company Shares who exercise appraisal or dissenters’ rights under the DGCL.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lithia Motors Inc), Stock Purchase Agreement (Lithia Motors Inc)
Indemnification by Seller. (a) From Except as specifically provided in this Section 8.2 and after the Closingotherwise subject to this Article 8, Seller shall indemnifycovenants and agrees to defend, defend indemnify and hold harmless Buyer, its Affiliates the Company after the Closing and Purchaser and each of their respective successors officers, directors, employees, agents and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsIndemnitees” and individually each an “Indemnitee”) from and against any and all Losses of every kind, nature or description asserted against, or sustainedand shall compensate and reimburse each of the Indemnitees for, incurred, any Damages which are suffered or accrued incurred by any of the Indemnitees (regardless of whether or not such Damages relate to any third party claim) directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to arising or result resulting from or as a consequence of any of the following:
(i) the breach or inaccuracy any Breach of any representation or warranty of made by Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to SellerTransactional Agreement;
(ii) any Breach of any covenant or obligation by the breach Company or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in under this Agreement or in any Related other Transactional Agreement;
(iii) any Excluded LiabilityExcess Transaction Expenses;
(iv) the ownership(A) any and all unpaid Taxes which are imposed on, possession or operation of the Acquired Assets by Seller or any Action with respect to (x) the Company or arising from Seller for any Acquired Intellectual Property deliveredPre-Closing Period, installed and (y) the Transactions, including the Transfer Taxes as set forth in Section 7.6(c); (B) any Breach of any representation or used prior warranty made by Seller in this Agreement or any other Transactional Agreement with respect to Taxes; and (C) any Breach of any covenant or obligation by the Closing;Company or Seller under this Agreement or any other Transactional Agreement with respect to Taxes (collectively, “Tax Matters”); or
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionSpecified Indemnification Matters.
(b) Subject Purchaser agrees that, in the event of a claim for indemnification for Damages pursuant to Section 8.2(a)(i)-(v), as an application of payments, Purchaser shall seek to pay and satisfy such claim first from the Holdback Amount, and second, if the Holdback Amount is insufficient to satisfy such claim, to pay and satisfy such claim with amounts recovered from Seller (for the avoidance of doubt, Purchaser may commence a claim against Seller under Section 8.2 and this application of payments provision shall be applicable to payment and satisfaction of such claim). For the avoidance of doubt, the right to satisfy claims from the Holdback Amount is not the exclusive remedy of Purchaser for amounts due pursuant to the other terms and conditions of this Article VII8 nor shall that amount be considered as liquidated damages for any Breach under this Agreement or any of the Transactional Agreements.
(c) Seller is not required to make any indemnification payment hereunder unless he has received, prior to expiration of the applicable survival period set forth in Section 8.1(a), a written notice (“Claim Notice”) specifying: (1) to the extent known by Indemnified Party, Indemnified Party’s good faith estimate of the reasonably foreseeable maximum amount of the alleged Damages; and (2) a brief description, in reasonable detail (to the extent known by Indemnified Party), of the facts, circumstances or events giving rise to the alleged Damages based on Indemnified Party’s good faith belief thereof, including the identity and address of any Losses that third party claimant (to the extent known by the Indemnified Party), copies of any formal demand or complaint, and a Buyer statement as to whether the Damages relate to Company (including the Section of this Agreement under which such Indemnified Person Party is entitled seeking indemnification). Seller shall have a period of sixty (60) days from receipt of the Claim Notice, within which to recover respond to claims by an Indemnitee. If Seller does not respond within such sixty (60)-day period, Seller shall be deemed to have accepted such claim, in which event Purchaser may withhold the amount of such claim from the Holdback Amount, and, if the Holdback Amount has been exhausted and the claim may be satisfied directly against Seller, Seller shall promptly make payment to the Indemnitee. If Seller disagrees with any claim set forth in a Claim Notice, Seller and the Indemnified Party submitting such Claim Notice shall attempt to resolve such disagreement in good faith for a period of sixty (60) days or such longer period as they may mutually agree. If such disagreement cannot be resolved then it shall become an Arbitrable Dispute and shall be resolved in accordance with Section 9.9 hereof.
(d) No claims shall be made by any Indemnitee for indemnification pursuant to Section 7.2(a)(i8.2(a) shall unless and until the aggregate amount of Damages for which the Indemnitees seek to be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller indemnified pursuant to Section 2.3. Any Losses 8.2(a)(i) exceed One Hundred Thousand Dollars ($100,000) (the “Threshold Amount”), at which time the Indemnitees shall be entitled to seek indemnification for all such Damages (including all Damages included within the Threshold Amount starting from the first dollar); provided, however, that become payable this Section 8.2(d) shall not apply to a Buyer Indemnified Person any claims resulting from: any reduction to the Total Consideration pursuant to Section 7.2(a) that are not satisfied in accordance with 3.2(h), any Excess Transaction Expenses, any Known Breach, any Fraud Matter, any Tax Matters, or any of the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonSpecified Indemnification Matters.
Appears in 2 contracts
Samples: Membership Interests Purchase Agreement, Membership Interests Purchase Agreement (Saba Software Inc)
Indemnification by Seller. Seller hereby agrees to defend, indemnify and hold Purchaser and its Affiliates harmless from, against and in respect of (and shall on demand reimburse Purchaser for):
(a) From Any and after all losses, costs, expenses (including without limitation, reasonable attorneys fees and disbursements of counsel), Liabilities, damages, fines, penalties, charges, assessments, judgments, settlements, claims, causes of action, Proceedings, Orders and other obligations of any kind or nature (individually a “Loss” and collectively “Losses”) arising from, in connection with, or suffered or incurred by Purchaser (i) by reason of any untrue representation, breach of warranty or non-fulfillment of any covenant or other agreement by Seller contained herein or in any certificate, document or instrument delivered to Purchaser pursuant hereto or in connection herewith, or (ii) which would not have been suffered or incurred if such representation or warranty were true and not breached or if such covenant or other agreement were fully performed;
(b) Any and all Losses suffered or incurred by Purchaser by reason of or in connection with any claim for a finder’s fee or brokerage or other commission arising by reason of any services alleged to have been rendered to or at the Closinginstance of Seller or any Stockholder with respect to this Agreement or any of the transactions contemplated hereby;
(c) Any and all Losses incurred in connection with or that arises from any claim or Proceeding by any former shareholder of Seller;
(d) Any and all Proceedings, Seller shall indemnifyOrders, defend claims, demands, assessments, judgments, costs and hold harmless Buyerexpenses, its Affiliates including, without limitation, legal fees and their respective successors and assigns and the respective Representatives of each expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity. Notwithstanding the foregoing, neither Seller or the Stockholders shall be liable to Purchaser for any breaches of representations or warranties (i) if the aggregate amount of all the Losses of Purchaser based thereon or resulting therefrom is less than $100,000 (the “Buyer Indemnified PersonsLiability Exception”) from and against ); PROVIDED, HOWEVER, that such Liability Exception shall not apply to or include any and all Losses in excess of every kind$100,000 in the aggregate or those in respect of misrepresentations or breaches of warranty contained in Section 5.4, nature or description asserted againsthereof, as to which Seller is liable in full hereunder, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person (ii) for any amount that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, howeverexceeds, in the event aggregate, the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (Escrow Amount under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer Agreement (but only to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionexcess).
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Mentor on Call Inc), Stock Purchase Agreement
Indemnification by Seller. (a) From Subject to the provisions of this Article VII, from and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates (including the Acquired Companies and Related Consolidated Entities after the Closing) and its and their respective successors and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsParties”) from from, against and against in respect of any and all Losses of every kinddamages, nature losses (including reasonably foreseeable lost profits and future earnings), charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, Taxes, interest, penalties, and costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) (collectively, “Losses”), actually incurred or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such by any Buyer Indemnified Person that arise Party relating to, arising out of, relate resulting from, with respect to or result from or as a consequence of any of the followingby reason of:
(i) the breach or inaccuracy of any representation or warranty made in Article III (or the certificate delivered pursuant to Section 6.3(a)(iii) by or on behalf of Seller contained in this Agreement, any Related Agreement at or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer prior to the extent of such Losses Closing) that arise out of, relate to or result from is not (aA) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by a Seller Fundamental Representation or (dB) Seller’s compliance with specifications and directions provided by Buyer to Sellera representation or warranty made in Section 3.20 (Taxes);
(ii) the breach or inaccuracy of any Seller Fundamental Representation (or the certificate delivered pursuant to Section 6.3(a)(iii) by or on behalf of Seller at or prior to the Closing with respect thereto);
(iii) the breach or inaccuracy of any representation or warranty made in Section 3.20 (Taxes) (or the certificate delivered pursuant to Section 6.3(a)(iii) by or on behalf of Seller at or prior to the Closing with respect thereto);
(iv) any Acquired Companies Indebtedness or Unpaid Transaction Expenses not properly disclosed and included in the calculation of Acquired Companies Indebtedness, Unpaid Transaction Expenses, or Net Working Capital;
(v) the amount of any non-fulfillment ofordinary course adjustments made to capitation payments prior to, at or after the Closing from Payors to Seller or any Acquired Companies or Related Consolidated Entities by such Payors, CMS, or non-compliance withits contractors pursuant to an audit or claim brought by such Payors, any agreementCMS, obligation or covenant its contractors, as a result of or related to the billing or coding practices of Seller or any of its Affiliates the Acquired Companies or Related Consolidated Entities or their respective employees or employed or contracted Providers, including any adverse impact on management fees to be paid to the Acquired Companies and Related Consolidated Entities after the Closing;
(vi) any breach of any covenant or agreement contained in this Agreement to be performed or complied with by the Acquired Companies or Related Consolidated Entities prior to the Closing or Seller prior to or after the Closing;
(vii) any Indemnified Taxes; and
(viii) any liabilities associated with Tandigm Health, LLC, and, to the extent not properly disclosed and included in the calculation of Net Working Capital, the Pre-Acquisition and Litigation Liabilities.
(b) Notwithstanding any other provision in this Agreement to the contrary, the indemnification provided for in Section 7.2(a) shall be subject to the following limitations:
(i) Seller shall not have any liability under Section 7.2(a)(i) and Section 7.2(a)(v) unless the aggregate amount of all Losses relating to claims under Section 7.2(a)(i) and Section 7.2(a)(v) for which Seller would be liable to the Buyer Indemnified Parties pursuant to this Article VII exceeds, in the aggregate, $73,500,000 (the “Threshold”), and then only to the extent such Losses exceed the Threshold; provided, that this Section 7.2(b)(i) shall not apply to claims arising under Section 7.2(a)(v) to the extent arising from an audit or claim the proceeds of which are paid or payable directly to CMS or its designated contractor (excluding through any private health insurance payor or health maintenance organization participating in the Medicare Advantage program and having contracted with any of the Acquired Companies or Related AgreementConsolidated Entities);
(ii) Seller’s aggregate liability for Losses arising out of or resulting from claims under Section 7.2(a)(i), Section 7.2(a)(iii) and Section 7.2(a)(v) shall in no event exceed $367,500,000;
(iii) Except for claims arising out of or resulting from the Specified Representations, Seller shall not be required to indemnify the Buyer Indemnified Parties under Section 7.2(a) for any Excluded Liabilityclaim (or series of related claims) for which the amount that would otherwise be payable hereunder relating to such claim (or series of related claims) is less than $150,000 (the “Per Claim Amount”); provided that the amount of any such claim (or series of related claims) that is less than the Per Claim Amount shall nonetheless be Losses applied towards and aggregated for purposes of calculating the Threshold pursuant to Section 7.2(b)(i);
(iv) Except in the ownership, possession case of (A) fraud or operation of the Acquired Assets by Seller or any Action (B) claims under Section 5.13 with respect to Retained Litigation, Seller’s aggregate liability for Losses arising out of or arising resulting from any Acquired Intellectual Property delivered, installed or used prior to claims under this Agreement shall in no event exceed the ClosingPurchase Price;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;Seller’s limitations on liability set forth on Schedule 7.2(b)(v); and
(vi) Seller shall have no liability under Section 7.2(a)(iii) for any Losses relating to Taxes for a Tax period or portion thereof beginning after the failure Closing Date, except to the extent such Losses relate to a breach of Seller to comply with, or perform any of its obligations underthe representations and warranties contained in Section 3.20(c), (ae), (j), (k) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionl).
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Davita Inc.)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VIIARTICLE VIII, Seller shall indemnify and defend each of Buyer and its Affiliates (including the Acquired Companies) 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, or any third party allegation that if true would constitute a Buyer Indemnified Person is entitled breach or inaccuracy of any of the representations or warranties of Seller contained in this Agreement or in any certificate or instrument delivered by or on behalf of Seller pursuant to recover this Agreement (other than in respect of Section 3.21, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to ARTICLE VI), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in ARTICLE VI, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to ARTICLE VI);
(c) any Transaction Expenses or Indebtedness of an Acquired Company outstanding as of the Closing to the extent not deducted from the Initial Purchase Price in the determination of the Closing Date Payment pursuant to Section 7.2(a)(i2.04(a)(i); and
(d) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to matters set forth on Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a8.02(d) that are not satisfied in accordance of the Disclosure Schedule, with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personlimitations set forth therein.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Air Industries Group), Stock Purchase Agreement (Cpi Aerostructures Inc)
Indemnification by Seller. (a) From After the Closing and after subject to Section 9.6, the Closingother provisions of this Article XII and Section 13.1, Seller shall indemnify, defend indemnify and hold harmless Buyer, its Affiliates and its and their respective successors and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsParties”) from and against any and all Losses (regardless of every kind, nature whether or description asserted againstnot such Losses relate to a Third Party Claim) suffered or incurred by any Buyer Indemnified Party, or sustained, incurred, suffered or accrued directly or indirectly by, such to which any Buyer Indemnified Person that arise out ofParty otherwise becomes subject, relate to or result from or as a consequence result of any of the followingor in connection with:
(i) the (A) any inaccuracy in or breach or inaccuracy of any representation or warranty of Seller or Parent contained in Article V or Article VI of this Agreement , in each case, as of the Closing Date with the same force and effect as if made on and as of the Closing Date (excluding any such representations and warranties that are specifically made as of an earlier date) (clause (A), collectively, “Seller Closing Rep Breaches”) and (B) any inaccuracy in or breach of any representation or warranty of Seller or Parent contained in Article V or Article VI of this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; providedwhich is not recoverable under the R&W Insurance Policy as a result of the exclusions described in Sections 4(g) through 4(i) of the R&W Insurance Policy (clause (B), howevercollectively, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, “Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to SellerExcluded Rep Breaches”);
(ii) the any breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of failure by Seller or to perform any of its Affiliates covenants or agreements contained in this Agreement or in any Related Agreementto be performed after the Closing;
(iii) any Excluded Liability;; or
(iv) the ownership, possession or operation of the Acquired Assets by any Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionNote Liability.
(b) Subject to the other terms and conditions The cumulative aggregate liability of Seller under this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) XII shall be satisfied by reducing in no event exceed the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonBase Purchase Price.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Telephone & Data Systems Inc /De/), Securities Purchase Agreement (United States Cellular Corp)
Indemnification by Seller. (a) From Subject to the provisions of this Article XII and without limitation to Section 2.1(b), effective as of and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, Purchaser and its Affiliates and its and their respective directors, officers, employees, agents, successors and assigns and the respective Representatives of each of the foregoing representatives (collectively, the “Buyer Purchaser Indemnified PersonsParties”) from and against any and all Losses incurred or suffered by any of every kindthe Purchaser Indemnified Parties, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise to the extent arising out of, relate relating to or result from resulting from, without duplication, any: (i) breach or as a consequence violation of, or default in connection with, any covenant made by or to be performed by Seller in this Agreement, (ii) Retained Liabilities, (iii) Liabilities of any of the following:
Acquired Companies for Taxes of any member of the Seller Group (iother than any of the Acquired Companies) under Treasury Regulations Sections 1.1502-6 or 1.338(h)(10)-1(d)(2) (or any similar provision of state, local, or non-U.S. law), as transferee or successor, or by reason of having been a member of a consolidated, affiliated, combined or other group for Tax purposes at any time before the Closing, (iv) Liabilities set forth on Schedule 12.2(a)(iv) of the Seller Disclosure Schedule, (v) Liabilities set forth on Schedule 12.2(a)(v) of the Seller Disclosure Schedule, and (vi) Section 338(h)(10) Election Taxes. If a Purchaser Indemnified Party’s claim may be properly characterized in multiple ways in accordance with this Article XII such that such claim may or may not be subject to different time limitations and other limitations depending on such characterization, then such Purchaser Indemnified Party shall have the right to characterize such claim in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article XII; provided, however, that no Purchaser Indemnified Party shall be entitled to double recovery for any indemnifiable Losses even though such Losses may have resulted from the breach or inaccuracy of any representation or warranty more than one of Seller contained in this Agreementthe representations, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications warranties and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained covenants in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation be subject to indemnification pursuant to multiple clauses of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionthis Section 12.2.
(b) Subject Seller shall not be liable for any claim for indemnifiable Losses arising out of any claim under (i) Section 12.2(a)(i) relating to any Pre-Closing Covenant (other than the other terms covenants in Section 7.4(b) and conditions Section 8.2(a)) unless and until the aggregate amount of this Article VIIany and all such indemnifiable Losses with respect to Pre-Closing Covenants equals or exceeds the amount set forth in Schedule 12.2(b)(i) of the Seller Disclosure Schedule, any Losses that a Buyer in which case the Purchaser Indemnified Person is Parties shall be entitled to recover pursuant all such indemnifiable Losses with respect to Pre-Closing Covenants from the first dollar thereof or (ii) Section 7.2(a)(i12.2(a)(iv) unless and until the aggregate amount of any and all such indemnifiable Losses equals or exceeds the amount set forth in Schedule 12.2(b)(ii) of the Seller Disclosure Schedule (the “Initial Deductible”), in which case the Purchaser Indemnified Parties shall be satisfied by reducing entitled to recover fifty percent (50%) all indemnifiable Losses arising out of any claim under Section 12.2(a)(iv) in excess of the Holdback Reserve Amount that would otherwise be payable to Initial Deductible until the aggregate amount of any and all indemnifiable Losses arising out of any claim under Section 12.2(a)(iv) equals or exceeds the amount set forth in Schedule 12.2(b)(iii) of the Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Disclosure Schedule (the “Second Deductible”), in which case the Purchaser Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence Parties shall be payable by Seller upon demand, by wire transfer entitled to recover all indemnifiable Losses arising out of immediately available funds to an account designated any claim under Section 12.2(a)(iv) in writing by such Buyer Indemnified Personexcess of the Second Deductible.
Appears in 2 contracts
Samples: Transaction Agreement (DOVER Corp), Transaction Agreement (Terex Corp)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend indemnify against and hold harmless Parent, Buyer, its each of their Affiliates and their respective successors employees, officers and assigns directors (collectively, the "BUYER INDEMNIFIED PARTIES") harmless from, and the respective Representatives of each of the foregoing (the “agrees to promptly defend any Buyer Indemnified Persons”) Party from and against reimburse any Buyer Indemnified Party for, any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, that such Buyer Indemnified Person that arise out ofParty may at any time suffer or incur, relate to or result from or become subject to, as a consequence result of any of the followingor in connection with:
(i) the breach or inaccuracy any failure of any representation or warranty of Seller contained or the Majority Stockholder (whether made in or pursuant to this Agreement, any Related the Voting Agreement or in any exhibit instrument or certificate delivered hereunder; provided, howeverby Seller at the Closing in accordance herewith) to be true when made and at and as of the Closing Date as if made at and as of such date (except that representations and warranties that by their terms speak as of the date of this Agreement or some other date need be true only as of such specified date), in the event the Buyer Indemnified Persons would otherwise be entitled each case, determined without regard to indemnification for Lossesany materiality or Material Adverse Effect qualification contained in any representation or warranty (other than Section 3.15(b)(i)) (each such misrepresentation or breach of warranty, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer failure of any Pre-Closing Product with any other product representation or servicewarranty to be true, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellera "SELLER WARRANTY BREACH");
(ii) any failure by Seller, the breach Majority Stockholder or non-fulfillment ofXxxxxx Xxxxx to carry out, or non-compliance withperform, any agreement, obligation or covenant of Seller or satisfy and discharge any of its Affiliates contained in respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or in any Related Agreementthe Ancillary Agreements;
(iii) any the Excluded LiabilityAssets;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the ClosingExcluded Liabilities;
(v) any Taxes of any kind relating to Seller for periods or arising in connection with portions thereof ending on or before the transfer of the Acquired Assets to Buyer;Closing Date; and
(vi) the failure Business or the operation of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior Network to the Closing or (b) extent arising before the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or Effective Time other than any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionAssumed Liability.
(b) Subject Notwithstanding any other provision to the other terms contrary, Seller shall not be required to indemnify and conditions of this Article VII, hold harmless any Losses that a Buyer Indemnified Person is entitled to recover Party pursuant to Section 7.2(a)(i12.03(a)(i): (A) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a unless such Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied Party has asserted a claim in accordance with Section 12.04 below with respect to such matters within the preceding sentence applicable survival period set forth in Section 12.01 and (B) until the aggregate amount of the Buyer Indemnified Parties' Losses resulting from any single Seller Warranty Breach or set of related Seller Warranty Breaches exceeds $225,000; PROVIDED, 58 HOWEVER, that the cumulative indemnification obligation of Seller under this Article XII shall in no event exceed $15 million. Except with respect to fraud or willful breach, the rights and remedies of the Buyer Indemnified Parties for a Loss relating to a Seller Warranty Breach shall be payable by Seller upon demandlimited, by wire transfer of immediately available funds to an account designated for all purposes as set forth in writing by such Buyer Indemnified Personthis Article XII.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Stein Avy H), Asset Purchase Agreement (CTN Media Group Inc)
Indemnification by Seller. (a) From and after the Closing, and subject to the terms of this Agreement (including the applicable limitations set forth in this Article X), Seller shall indemnify, defend and hold harmless BuyerPurchaser, its Affiliates Affiliates, and their respective directors, officers, agents, employees, successors and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Purchaser Indemnified PersonsParties”) from against, and against reimburse any and Purchaser Indemnified Party for, all Losses of every kind, nature that such Purchaser Indemnified Party may suffer or description asserted againstincur, or sustainedbecome subject to, incurredwithout duplication, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the followingresult of:
(i) the breach or inaccuracy failure of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunderArticle III to be true and correct at and as of the Closing; provided, howeverthat any qualifications as to materiality, “Material Adverse Effect” or other similar materiality qualifications included in such representation or warranty shall be disregarded for purposes of the event determination of whether or not such breach has occurred and for purposes of calculating the Buyer Indemnified Persons would otherwise be entitled amount of any Losses subject to indemnification hereunder (it being understood and agreed that any reference as to materiality, “Material Adverse Effect” or other similar materiality qualifications shall be given effect for Lossespurposes of the definitions of “Material Adverse Effect”, Seller shall not be obligated (under this “Material Contracts” and “Permitted Liens” and the representations and warranties contained in Section 7.2(a)(i3.4, Section 3.5, Section 3.11(a), the second sentence of Section 3.11(h) or otherwise) to indemnify and the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent first sentence of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to SellerSection 3.12(a));
(ii) the any breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of failure by Seller or to perform any of its Affiliates covenants or agreements contained in this Agreement or in any Related Agreement;; and
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject Notwithstanding anything in this Agreement to the contrary, the rights of the Purchaser Indemnified Parties to indemnification pursuant to this Article X shall be subject to the following limitations (in addition to any other limitations set forth herein).
(i) The Purchaser Indemnified Parties shall not be entitled to recover for any particular Loss under Section 10.2(a)(i) that arises from any individual item, occurrence, circumstance, act or omission (or series of related items, occurrences, circumstances, acts or omissions) unless and until the amount of all Losses resulting therefrom exceeds $500,000 (the “De Minimis Threshold”), nor shall any Losses excluded pursuant to this Section 10.2(b)(i) be taken into account for purposes of determining whether the General Cap has been exceeded in respect of claims made by the Purchaser Indemnified Parties.
(ii) The Purchaser Indemnified Parties shall not be entitled to recover Losses under Section 10.2(a)(i) until the total amount of Losses for which the Purchaser Indemnified Parties would recover under Section 10.2(a)(i) (as limited by Section 10.2(b)(i)), exceeds $67,000,000, in which case the Purchaser Indemnified Parties shall only be entitled to recover Losses in excess of such amount, subject to the other terms limitations herein (including Section 10.2(b)(iii)).
(iii) The Purchaser Indemnified Parties shall not be entitled to recover Losses under Section 10.2(a)(i) in respect of representations and conditions warranties (other than those set forth in Section 3.18(a) and Section 3.18(b)) in excess of $804,000,000 in the aggregate (the “General Cap”).
(iv) The limitation set forth in Section 10.2(b)(iii) shall not apply to any Seller Specified Representations or the representations and warranties contained in Section 3.18.
(v) The Purchaser Indemnified Parties shall not be entitled to recover Losses under Section 10.2(a)(i) in respect of the representations and warranties set forth in Section 3.18(a) (when taken together with any other Losses recovered under Section 10.2(a)(i) in respect of the representations and warranties set forth in Section 3.18(b)) in excess of $2,010,000,000 in the aggregate, and the Purchaser Indemnified Parties shall not be entitled to recover Losses under Section 10.2(a)(i) in respect of the representations and warranties set forth in Section 3.18(b) (when taken together with any other Losses recovered under Section 10.2(a)(i) in respect of the representations and warranties set forth in Section 3.18(a)) in excess of $2,680,000,000 in the aggregate.
(vi) The Purchaser Indemnified Parties shall not be entitled to recover Losses under this Article VIIX (including, for the avoidance of doubt, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i10.2(a)(i) shall be satisfied by reducing (whether in respect of Seller Specified Representations or otherwise)) in the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) aggregate that are not satisfied in accordance with excess of, and in no event shall the preceding sentence shall be payable by indemnification obligations of Seller upon demandunder this Article X in the aggregate exceed, by wire transfer of immediately available funds an amount equal to an account designated in writing by such Buyer Indemnified Personthe Purchase Price.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Amgen Inc), Asset Purchase Agreement (Celgene Corp /De/)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VIIVIII, for a term beginning on the Closing Date and ending on the second anniversary of the Closing Date, Seller shall indemnify and defend each of Buyer and its Affiliates (including the Company) 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 that a (except as provided in this Section 8.02) incurred or sustained by, or imposed upon, the Buyer Indemnified Person is entitled Indemnitees based upon, arising out of, with respect to recover pursuant to Section 7.2(a)(ior by reason of:
(a) shall be satisfied any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement or in any certificate or instrument delivered by reducing the Holdback Reserve Amount that would otherwise be payable to or on behalf of Seller pursuant to this Agreement (other than in respect of Section 2.3. Any Losses 3.21, it being understood that become payable the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a Buyer Indemnified Person specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); or
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to Section 7.2(a) this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI, it being understood that are not satisfied in accordance with the preceding sentence sole remedy for any such breach, violation or failure shall be payable pursuant to Article VI).
(c) Buyer shall not satisfy any Loss by asserting a setoff, defense, or counterclaim against any obligation or indebtedness owed by Buyer to Seller, and Buyer waives all rights it otherwise might have to do so. Notwithstanding a contrary provision in this Agreement, Seller upon demandshall not be liable to Buyer, or have any obligation to indemnify Buyer, for any Loss arising out of (i) the actions or omissions of Waste Management or its agents, employees, officers, directors, or representatives or a breach by wire transfer Waste Management of immediately available funds any representation or warranty made by it or its agents, employees, officers, directors, or representatives; or (ii) any motor vehicle related claim to an account designated in writing by such Buyer Indemnified Personwhich Seller has no knowledge.
Appears in 2 contracts
Samples: Partnership Interest Purchase Agreement (National Waste Management Holdings, Inc.), Partnership Interest Purchase Agreement (National Waste Management Holdings, Inc.)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold Purchaser harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against shall reimburse Purchaser for any losses, damages, deficiencies, claims, causes of action or expenses of any nature (including, but not limited to, reasonable attorneys’ fees and all Losses of every kindlegal or other expenses associated with investigation, nature or description asserted against, or sustained, incurred, defense and discovery) suffered or accrued directly incurred by Purchaser before or indirectly by, such Buyer Indemnified Person that arise out of, relate to or after the Transfer Date which result from or as a consequence of any of the followingfrom:
(ia) Any misrepresentation made by Seller in this Agreement, the Servicing Agreements or in any schedule, written statement or certificate furnished by Seller pursuant to this Agreement or the Servicing Agreements (including, without limitation, the information included in the Exhibits hereto);
(b) Any breach or inaccuracy of any a representation or warranty by Seller, or the non-fulfillment of any term, covenant, condition or obligation of Seller contained in this Agreement, the Interim Servicing Agreement, the Servicing Agreements or in any Related schedule, written statement or certificate furnished by Seller pursuant to this Agreement, the Interim Servicing Agreement or the Servicing Agreements;
(c) Any breach of a representation or warranty in Section 4.14 hereof with respect to a Prior Servicer, regardless of whether or not Seller had knowledge of the breach;
(d) Any error in originating, closing, pooling or servicing any exhibit of the Mortgage Loans (including, without limitation, errors in determination of interest rate and monthly payment adjustments) prior to the Transfer Date including improper action or certificate delivered hereunderfailure to act when required to do so;
(e) Any defect in any Mortgage Loan existing as of the Transfer Date (including those defects subsequently discovered the basis for which occurred on or prior to the Transfer Date), or as a result of any act or omission of Seller or a Prior Servicer prior thereto;
(f) Seller’s failure to (i) permit Purchaser to examine records, (ii) comply with the provisions hereof or Purchaser’s reasonable instructions regarding the transfer of Servicing or (iii) provide accurate information reasonably requested by Purchaser regarding the Mortgage Loans or the Servicing;
(g) Any expenses and losses on any VA Mortgage Loan that is a VA “No-bid”, including those Mortgage Loans resulting in buydowns, as of the second anniversary of the Transfer Date or any VA Mortgage Loan referred to an attorney for foreclosure action on or before the second anniversary of the Transfer Date which becomes a VA “No-bid”; or
(h) Litigation, proceedings, governmental investigations, orders, injunctions or decrees the basis for which occurred on or prior to the Transfer Date involving the Servicing or any of the Mortgage Loans or resulting from any of the items described in Section 10.01(a)-(g) above; provided, however, that Purchaser has taken all reasonable and appropriate actions to mitigate any such losses, damages, deficiencies, claims, causes of action or expenses. Each party shall promptly notify the other of any litigation, proceedings, governmental investigations, orders, injunctions or decrees specified above (collectively, a “Claim”). Seller shall have the right to defend Purchaser against the Claim with counsel of its choice reasonably satisfactory to Purchaser. Purchaser may participate in the event defense of any such Claim with co-counsel of its choice; provided, however, that counsel for Seller shall be lead counsel and the Buyer Indemnified Persons would otherwise fees and expenses of Purchaser’s counsel shall be entitled at the expense of Purchaser unless (i) Seller has agreed in writing to indemnification pay such fees and expenses, (ii) Seller has failed to assume the defense and employ counsel as provided herein or (iii) a claim shall have been brought or asserted against Seller as well as Purchaser and Purchaser shall have been advised in writing by counsel that there may be one or more factual or legal defenses available to it that are in conflict with those available to Seller. Such co-counsel shall be at the expense of Seller; provided, however, that counsel for Losses, Seller shall be lead counsel and Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) required to indemnify pay the Buyer Indemnified Persons fees and expenses of more than one separate counsel. Seller shall not settle, compromise, decline to appeal or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer dispose of any Pre-Closing Product with any other product Claim without the prior written consent of Purchaser, which consent shall not be unreasonably withheld or servicedelayed, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would provided, however, that such consent shall not have occurred but be required for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Uniona Claim involving less than $100,000.00.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 2 contracts
Samples: Mortgage Servicing Purchase and Sale Agreement, Mortgage Servicing Purchase and Sale Agreement (Hibernia Corp)
Indemnification by Seller. (a) From and after Subject to the Closinglimitations of Section 11.2(b), Seller shall indemnifyagrees to indemnify in full Buyer and its officers, defend directors, employees, agents and stockholders (collectively, the "Buyer Indemnified Parties") and hold them harmless Buyeragainst any loss, its Affiliates and their respective successors and assigns and liability, deficiency, damage, expense or cost (including reasonable legal expenses), whether or not actually incurred or paid prior to the respective Representatives of each first anniversary of the foregoing Closing Date (the “collectively, "Losses"), which Buyer Indemnified Persons”) from and against any and all Losses of every kindParties may suffer, nature sustain or description asserted againstbecome subject to, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence result of (i) any misrepresentation in any of the following:
(i) the breach or inaccuracy of any representation or warranty representations and warranties of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any exhibits, schedules, certificates or other documents delivered or to be delivered by or on behalf of Seller pursuant to the terms of this Agreement or otherwise referenced or incorporated in this Agreement (collectively, the "Related Agreement;
Documents"), (ii) any breach of, or failure to perform, any agreement of Seller contained in this Agreement or any of the Related Documents, or (iii) any Excluded Liability;
"Claims" (ivas defined in Section 11.4(a) the ownership, possession hereof) or operation threatened Claims against Buyer arising out of the Acquired Assets by actions or inactions of Seller or any Action with respect to the Assets or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement Business prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United Statescollectively, Canada and the European Union"Buyer Losses").
(b) Subject Seller shall be liable to Buyer Indemnified Parties for any Buyer Losses (i) only if Buyer or another Buyer Indemnified Party delivers to Seller written notice, setting forth in reasonable detail the identity, nature and amount of Buyer Losses related to such claim or claims prior to the other terms first anniversary of the Closing Date and conditions (ii) only if the aggregate amount of this Article VIIall Buyer Losses exceeds $25,000 (the "Basket Amount"), any Losses that a in which case Seller shall be obligated to indemnify the Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) Parties only for the excess of the aggregate amount of all such Buyer Losses over the Basket Amount. So long as Seller retains the Buyer Shares, Seller's sole recourse and Buyer's sole remedy, shall be satisfied by reducing a return of the Holdback Reserve Amount that would otherwise be payable Buyer Shares in an amount equal to the liability of Seller. In no event shall Seller pursuant to Section 2.3. Any Losses that become payable have liability under this Agreement in excess of the Buyer Shares (or US$2,031,105 if Seller has disposed of the Buyer Shares to a party who has not agreed to accept the indemnification obligations hereunder). A Buyer Indemnified Person pursuant Party's failure to Section 7.2(aprovide the detail required by clause (i) that are not satisfied in accordance with the preceding sentence shall be payable not constitute either a breach of this Agreement by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such the Buyer Indemnified PersonParty or any basis for Seller to assert that the Buyer Indemnified Party did not comply with the terms of this Section 11.2 sufficient to cause the Buyer Indemnified Party to have waived its rights under this Section 11.2, unless Seller demonstrates that its ability to defend against any Claims with respect thereto has been materially adversely affected.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Infowave Software Inc), Asset Purchase Agreement (Trooien Gerald L)
Indemnification by Seller. (a) From Subject to the terms of this Article VIII, from and after the Closing, the Seller Parties shall indemnify, defend jointly and hold harmless Buyer, severally indemnify Buyer and its Affiliates and their respective officers, directors, employees, stockholders, Affiliates, agents and representatives, and each of the heirs, executors, successors and assigns and the respective Representatives of each any of the foregoing (collectively, the “Buyer Indemnified PersonsParties”) and defend and hold them harmless from and against any and all Losses of every kind, nature incurred or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such by a Buyer Indemnified Person that arise Party resulting from, arising out of, relate of or related to or result from or as a consequence of (a) any of the following:
(i) the breach or inaccuracy of any representation or warranty made by a Seller Party in this Agreement (it being agreed for purposes of determining any such breach or inaccuracy that such representations and warranties are deemed made as of the date of this Agreement and as of the Closing Date (except for such representations and warranties that are made as of a specific date which shall speak only as of such date)) (provided that for the purposes of this clause (a), qualifications as to materiality, Material Adverse Effect or other qualifiers of similar import contained in such representations and warranties shall not be given effect for determining whether a breach of such representations and warranties has occurred or for purposes of calculating any Losses), to the extent that a Buyer Indemnified Party provides written notice of such breach or inaccuracy (which notice shall describe the applicable breach or inaccuracy in reasonable detail and indicate a good faith estimated amount, if known and quantifiable, of Losses that have been or would reasonably be expected to be sustained by the applicable Buyer Indemnified Party in connection therewith) to Seller prior to the applicable Survival Date (or at any time permitted by law, in the case of the Fundamental Representations), (b) any breach of any covenant or agreement of a Seller Party contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionLiabilities.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hershey Co), Asset Purchase Agreement (B&G Foods, Inc.)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnifydefend, defend compensate, pay, reimburse, indemnify and hold harmless Buyer, (whether or not related to a Third Party claim) Purchaser and its Affiliates and their respective owners, members, directors, officers, managers, employees, insurers and, in each case, their respective successors and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsPurchaser Indemnitees”) from from, for and against any and all Losses of every kindDamages (individually, nature or description asserted againsta “Purchaser’s Indemnified Claim” and collectively, or sustained“Purchaser’s Indemnified Claims” and, incurredtogether with the Seller’s Indemnified Claims, “Indemnified Claims”) which are suffered or accrued directly incurred by any Purchaser Indemnitee or indirectly by, to which any Purchaser Indemnitee may otherwise become subject (regardless of whether or not such Buyer Indemnified Person that arise out of, Damages relate to any direct claim or result Third Party claim) and which arise from or as a consequence of any of the followingresult of, or are connected with:
(ia) the any inaccuracy in or breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed made by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreementthe certificate delivered pursuant to Section 2.7(b)(iii);
(iiib) any breach of any covenant or agreement made by Seller or the Company (in the case of the Company, solely to the extent such breach occurred prior to Closing) in this Agreement or the other Transaction Documents;
(c) any Indebtedness of the Company prior to the Closing other than (i) to the extent the Adjustment Amount was decreased pursuant to Section 2.3(g) with respect to such Indebtedness and (ii) Indebtedness incurred in accordance with Section 6.1(b);
(d) any Seller Taxes;
(e) any Excluded Liability;
(iv) Assets to the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect extent relating to or arising from any Acquired Intellectual Property delivered, installed or used matters occurring prior to the Closing;
(vf) the MIPA (including the Transition Services Agreement delivered pursuant thereto); and
(g) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionRetained Liability.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 2 contracts
Samples: Securities Purchase Agreement (WPX Energy, Inc.), Securities Purchase Agreement (WPX Energy, Inc.)
Indemnification by Seller. (a) From and after the Closing, and subject to this ARTICLE 8, Seller shall indemnifydefend, defend indemnify and hold harmless Buyer, its Buyers and each of their respective Subsidiaries and Affiliates and their respective successors officers, directors, employees and assigns and the respective Representatives of each of the foregoing agents (collectively, the “Buyer Indemnified PersonsIndemnitees”) from and against against, and pay or reimburse the Buyer Indemnitees for, any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
extent resulting from: (i) the any breach or inaccuracy of any representation or warranty made by Seller in ARTICLE 2; (ii) any breach by Seller of any of its covenants or agreements contained herein; or (iii) claims brought against MWV Industria Plastica Ltda. by any Governmental Authority in Brazil for underpayment of import duties for any period prior to the Closing, including, without limitation, with respect to the action described in Section 2.12 of the Seller contained Disclosure Letter; provided that Buyer Indemnitees shall not be entitled to recover under Section 8.2(a)(i) for an individual claim or group of related claims unless and until the amount of Losses that otherwise would be payable pursuant to Section 8.2(a)(i) with respect to such claim or group of related claims exceeds $200,000 (the “Per Claim Threshold”), provided, further, that no claims by Buyer Indemnitees shall be asserted under Section 8.2(a)(i) unless and until the aggregate amount of Losses that would otherwise be payable hereunder exceeds on a cumulative basis an amount equal to $10,000,000 (the “Indemnification Deductible”), and then only to the extent such Losses exceed the Indemnification Deductible. Any such individual claims or group of related claims for amounts less than the Per Claim Threshold shall be ignored in determining whether the Indemnification Deductible has been exceeded. The Per Claim Threshold and the Indemnification Deductible shall not apply with respect to any: (i) claims for indemnification for any breach of a Fundamental Representation; or (ii) claims with respect to Seller’s actual and intentional fraud with respect to any express provisions in this Agreement.
(b) Notwithstanding the limitations set forth above in Section 8.2(a), Seller shall not be liable for indemnification for any Related Agreement claims made pursuant to Section 8.2(a)(i) in excess of $102,500,000 (the “Cap”).
(c) Notwithstanding anything to the contrary herein, the Cap shall not apply with respect to any: (i) claims for indemnification for any breach of a Fundamental Representation; or (ii) claims with respect to Seller’s actual and intentional fraud with respect to any exhibit or certificate delivered hereunderexpress provisions in this Agreement; provided, however, in no event shall the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant aggregate monetary obligations of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of transactions contemplated by this Agreement exceed the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionFinal Purchase Price.
(bd) Subject to the other terms and conditions For purposes of this Article VIIcalculating Losses hereunder (but not for purposes of establishing whether a breach has occurred), any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) materiality or Material Adverse Effect qualifications in the representations and warranties in ARTICLE 2 shall be satisfied by reducing disregarded (other than in the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to definition of “Material Contract,” Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to 2.6, Section 7.2(a) that are not satisfied in accordance with the preceding sentence 2.8(a)(i), Section 2.9, Section 2.16(a), Section 2.20, Section 2.21 and Section 2.22(b), each of which shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by retain such Buyer Indemnified Personqualifications for all purposes).
Appears in 2 contracts
Samples: Purchase Agreement (Silgan Holdings Inc), Purchase Agreement (WestRock Co)
Indemnification by Seller. (a) From and after Subject to the limitations contained in this Section 9.2, following the Closing, Seller shall indemnify, defend indemnify the Buyer Indemnitees and hold them harmless Buyeragainst any Loss a Buyer Indemnitee may suffer, its Affiliates and their respective successors and assigns and sustain or become subject to prior to the respective Representatives of each expiration of the foregoing (survival period under Section 9.1, whether or not actually incurred or paid prior to the “Buyer Indemnified Persons”) from and against any and all Losses expiration of every kindsuch survival period, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence result of (i) any breach of any of the following:
(i) representations and warranties of the breach or inaccuracy of any representation or warranty of Seller Company contained in Article III of this Agreement, (ii) any Related Agreement breach of, or failure to perform, any exhibit or certificate delivered hereunder; providedagreement of the Company, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate breach or failure to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would perform is not have occurred but for such adaptation or modification waived in writing by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications under this Agreement, and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) event arising from the ownership, possession operation or operation ownership of or conditions occurring with respect to the Business or the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
, including the Retained Liabilities, but not including the Assumed Liabilities (v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply withcollectively, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union“Buyer Losses”).
(b) Subject Except with respect to the other terms and conditions of this Article VIIRetained Liabilities, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to no claim for indemnification under Section 7.2(a)(i9.1(a) shall be satisfied made by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant Indemnitee with respect to any breach resulting in an individual item of Loss, or related items of Losses arising out of substantially similar facts and circumstances, unless and until the amount of such Losses suffered by the Buyer Indemnitee exceeds $5,000, at which point a claim can be made for the entire amount of such Losses.
(c) Except with respect to the Retained Liabilities, no claim for indemnification under Section 7.2(a9.1(a) that shall be made by a Buyer Indemnitee unless and until the aggregate amount of all Losses for which claims are not satisfied allowed under Section 9.1(b) suffered by the Buyer Indemnittees exceeds $50,000 (the “Basket Amount”), in which case Seller shall be liable to the Buyer Indemnitees for the amount of all such Losses in excess of the Basket Amount.
(d) Except with respect to the Retained Liabilities, Buyer and all other Buyer Indemnitees shall have recourse only against the undisbursed Indemnification Escrow Deposit with respect to any Losses, in accordance with the preceding sentence terms of the Indemnification Escrow Agreement. For the avoidance of doubt, except with respect to the Retained Liabilities, Seller shall be payable by Seller upon demandhave no liability separate from, by wire transfer of immediately available funds to an account designated or in writing by such Buyer Indemnified Personaddition to, the undisbursed Indemnification Escrow Deposit.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Aventine Renewable Energy Holdings Inc), Asset Purchase Agreement (Nebraska Energy, L.L.C.)
Indemnification by Seller. (a) From Subject to the other terms and conditions of this Article 9, from and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, Buyer and its Affiliates (including, after the Closing, the Acquired Companies) and their respective Representatives, successors and permitted assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsIndemnitees”) from and against against, and shall pay and reimburse each of the Buyer Indemnitees for, any and all Losses of every kindthe Buyer Indemnitees, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise to the extent arising out of, relate to or result from or as a consequence of any of the following:
(a) any inaccuracy in, or breach or failure of (i) any representation or warranty made by Seller in Article 3 or any certificate delivered pursuant to this Agreement (other than any Seller Fundamental Representations except for Section 3.9(a), Section 3.9(c) and Section 3.13(b)(i) and (ii)) to be true and correct in all respects as of the date of this Agreement or the Closing Date (except for representations and warranties that expressly relate to a specified date, in which case the inaccuracy in or breach or failure of which will be determined with reference to such specified date) and (ii) any Seller Fundamental Representation (other than Section 3.9(a), Section 3.9(c) and Sections 3.13(b)(i) and (ii)) to be true and correct in all respects as of the date of this Agreement or the Closing Date (except for representations and warranties that expressly relate to a specified date, in which case the inaccuracy in or breach or failure of which will be determined with reference to such specified date), it being understood that this Section 9.2(a) shall not apply to any such breach or failure that is not covered by the R&W Insurance Policy as a result of the policy exclusions set forth on Section 9.2(h) of the Seller Disclosure Letter, which breaches and failures are exclusively the subject of Section 9.2(h) below;
(b) any breach or non-fulfillment of any covenant or agreement made or to be performed by Seller in this Agreement on or prior to the Closing Date;
(c) any Third-Party Claim against the Buyer Indemnitees to the extent related to the operation of the Retained Business and arising as a result of or relating to the former affiliation between the Business and the Retained Business, whether prior to, at or after the Closing;
(d) any Seller Taxes;
(e) as set forth in Section 5.6(d);
(f) as set forth in Section 5.13(a);
(g) as set forth in Section 5.22(b);
(h) any inaccuracy in, or breach or failure of any representation or warranty of made by Seller contained in this Agreement, any Related Agreement Article 3 or any exhibit or certificate delivered hereunder; provided, however, pursuant to this Agreement to be true and correct in all respects as of the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent date of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or the Closing Date (except for representations and warranties that expressly relate to a specified date, in any Related Agreement;which case the inaccuracy in or breach or failure of which will be determined with reference to such specified date) that is not covered by the R&W Insurance Policy as a result of the policy exclusions set forth on Section 9.2(h) of the Seller Disclosure Letter; and
(iiii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(vmatters set forth on Section 9.2(i) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionDisclosure Letter.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 2 contracts
Samples: Share Purchase Agreement (Amerisourcebergen Corp), Share Purchase Agreement (Walgreens Boots Alliance, Inc.)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII9, including the limitations set forth below, the Seller shall indemnify and defend each of Purchaser and its Affiliates (including the Group Companies) and their respective Representatives (collectively, the “Purchaser 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 that incurred or sustained by, or imposed upon, the Purchaser Indemnitees based upon, arising out of, with respect to or by reason of:
9.1.1 any inaccuracy in or a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied breach of any of the representations or warranties of the Seller contained in this Agreement or in any certificate or instrument delivered by reducing or on behalf of the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses this Agreement on and as of the Closing Date, except for representations and warranties that become payable expressly relate to a Buyer Indemnified Person specified date, the inaccuracy in or breach of which will be determined with reference to such specified date, and for the purpose of determining Losses in relation to a breach of a representation or warranty of the Seller contained in this Agreement in any case without regard to any materiality or similar qualification contained in or otherwise applicable to such representation or warranty;
9.1.2 any breach or non-fulfillment of any covenant, agreement and/or obligation to be performed by the Seller pursuant to Section 7.2(a) this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article 8.1, it being understood that are not satisfied in accordance with the preceding sentence sole remedy for any such breach, violation or failure shall be payable pursuant to Article 8.1); or
9.1.3 the Special Indemnification Events (for the avoidance of doubt, the Seller’s indemnification obligations with respect to Special Indemnification Events shall not be diminished or qualified in any respect by Seller upon demand, by wire transfer any disclosure set forth in the Disclosure Letter in respect of immediately available funds to an account designated in writing by such Buyer Indemnified PersonSeller’s Warranties).
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (G Iii Apparel Group LTD /De/)
Indemnification by Seller. (a) From and after Following the ClosingClosing until the applicable survival dates provided in Section 6.1(a) (but subject to the proviso set forth therein), Seller shall indemnify, defend and defend, hold harmless Buyer, and reimburse Buyer and its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing permitted assigns, in their capacity as such (collectively, the “Buyer Indemnified PersonsParties”) ), for, from and against any and all Losses of every kindimposed on, nature incurred or description suffered by or asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such against any Buyer Indemnified Person that arise Party in connection with or arising out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy failure of any Seller Representation (other than any Seller Fundamental Representation), as qualified by the Seller Disclosure Letter, to be true and accurate as of the Effective Date (or, in the case of any representation or and warranty that expressly speaks as of a different date, such date), it being understood that for purposes of this Section 6.2(a)(i) any qualifications relating to materiality (such as the terms “material” and “Material Adverse Effect”) set forth in such Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunderRepresentation shall be disregarded for purposes of determining whether such Seller Representation was not true and accurate as well as the amount of such Losses; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled that any qualifications relating to indemnification for Losses, Seller materiality shall not be obligated (under this disregarded for purposes of determining whether the Seller Representations set forth in Section 7.2(a)(i3.4(b) or otherwiseand Section 3.5(ix) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would were not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications true and directions provided by Buyer to Selleraccurate;
(ii) the breach or non-fulfillment offailure of any Seller Fundamental Representation, or non-compliance withas qualified by the Seller Disclosure Letter, to be true and accurate as of the Effective Date (or, in the case of any agreementrepresentation and warranty that expressly speaks as of a different date, obligation or covenant such date), it being understood that for purposes of this Section 6.2(a)(ii) any qualifications relating to materiality (such as the terms “material” and “Material Adverse Effect”) set forth in such Seller or any Fundamental Representation shall be disregarded for purposes of its Affiliates contained in this Agreement or in any Related Agreementdetermining whether such Seller Fundamental Representation was not true and accurate as well as the amount of such Losses;
(iii) the breach or failure of Seller to fully perform any Excluded Liabilitycovenant, agreement or obligation of Seller set forth in this Agreement;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the ClosingExcluded Assets;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;Excluded Liabilities; or
(vi) the any failure to collect in full any amount of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionAccounts Receivable.
(b) Subject Seller shall not have any liability pursuant to this Article VI in respect of any Losses of the type described in Section 6.2(a)(i) (i) for any single claim or related series of claims involving less than $[REDACTED]in the aggregate (the “Per Claim Amount”) and (ii) unless and until the aggregate amount of such Losses exceeds $[REDACTED] (the “Basket Amount”), in which event Seller shall be liable for all such Losses, including the Basket Amount.
(c) Notwithstanding any provision to the other terms and conditions of contrary contained in this Article VIIVI, except for Losses in connection with Taxes that are Excluded Liabilities, the amount of Losses for which Seller shall be liable at any time pursuant to this Article VI in respect of all claims that are not Third-Party Claims shall be limited to the aggregate amount of (i) Monthly Future Payments paid to Seller as of such time, plus (ii) [REDACTED], plus (iii) the Post-Closing Payment, if any, paid to Seller; provided, that this Section 6.2(c) shall not prevent Buyer from recovering the full amount of such Losses pursuant to Buyer’s offset right as set forth in Section 6.6(b).
(d) Notwithstanding any provision to the contrary contained in this Article VI (including, for the avoidance of doubt, Section 6.2(c)), except for Losses in connection with Taxes that a Buyer Indemnified Person is entitled to recover are Excluded Liabilities, the maximum amount of aggregate Losses for which Seller shall be liable pursuant to Section 7.2(a)(i6.2(a)(i) shall be satisfied by reducing $[REDACTED] (the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person“Cap Amount”).
Appears in 1 contract
Indemnification by Seller. (a) From Subject to the provisions of this Article X and except with respect to Closing Payment Adjustments (which shall be governed exclusively by Article II) and indemnification for Taxes (which shall be governed exclusively by Article VII), effective as of and after the Closing, Seller shall indemnify, defend indemnify and hold harmless BuyerPurchaser and its Affiliates, its Affiliates and each of their respective successors directors, officers, employees, agents and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Purchaser Indemnified PersonsParties”) ), from and against any and all Losses of every kind, nature incurred or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of by any of the followingPurchaser Indemnified Parties arising out of or related to:
(i) any breach of any representation or warranty of Seller, at and as of the breach or inaccuracy Closing as though made at and as of the Closing (unless made as of a specific date, in which case at and as of such date), contained in Article III (other than any representation or warranty of Seller contained in this AgreementSection 3.15, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination which is governed exclusively by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to SellerArticle VII);
(ii) the any breach of any covenant or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant agreement of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;; and
(iii) any Excluded Liability;
(ivthe matters set forth on Section 10.2(a)(iii) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionDisclosure Letter.
(b) Subject Notwithstanding any other provision to the other terms and conditions of this contrary (except with respect to indemnification for Taxes (which shall be governed exclusively by Article VII) and for Seller Benefit Plans and Business Employees (which shall be governed by Article VI)):
(i) for purposes of the determination of the existence or amount of any Losses (but not for the purposes of determining a breach) in respect of any such failure, any materiality or Business Material Adverse Effect standard or qualification contained in or otherwise applicable to such representation or warranty shall be disregarded;
(ii) Seller shall not be required to indemnify or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses: (A) to the extent the related Liabilities were reflected in, reserved for or taken into account in the determination of Working Capital on the Final Closing Statement or, with respect to indemnifiable Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i10.2(a)(i), were specifically reflected or reserved in the Business Financial Statements (but only to the extent such Liabilities are readily identifiable on the face of the Business Financial Statements as a breach of the applicable representation or warranty); (B) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any 10.2(a)(i), for any claim unless such claim or series of related claims involve Losses that become payable in excess of $750,000 (the “De Minimis Amount”) and if such Losses do not exceed the De Minimis Amount, such Losses shall not be applied to a Buyer or considered for purposes of calculating the aggregate amount of the Purchaser Indemnified Person Parties’ Losses under Section 10.2(a)(i); or (C) pursuant to Section 7.2(a10.2(a)(i), until the aggregate amount of the Purchaser Indemnified Parties’ Losses under Section 10.2(a)(i) that are not satisfied in accordance with exceeds one percent (1%) or the preceding sentence Purchase Price (the “Deductible”), after which Seller shall be payable obligated for the Purchaser Indemnified Parties’ Losses under Section 10.2(a)(i) for the amount of such Losses that exceeds the Deductible; provided that any claim for indemnification under Section 10.2(a)(i) resulting from a breach of a Seller Fundamental Representation shall not be subject to the De Minimis Amount or the Deductible (collectively, the “Fundamental Indemnification Matters”); and
(iii) the cumulative indemnification obligations of Seller under Section 10.2(a)(i) (other than the Fundamental Indemnification Matters) shall in no event exceed, in the aggregate, ten percent (10%) of the Purchase Price (the “Cap”), and the cumulative indemnification obligations of Seller for the Fundamental Indemnification Matters, together with all other indemnification by Seller upon demandunder this Agreement, by wire transfer of immediately available funds to an account designated shall in writing by such Buyer Indemnified Personno event exceed, in the aggregate, the Purchase Price.
Appears in 1 contract
Samples: Stock Purchase Agreement (Chesapeake Utilities Corp)
Indemnification by Seller. (a) From Subject to the provisions of this ARTICLE IX, from and after the Closing, Seller shall indemnify, defend indemnify and hold harmless Buyer, Purchaser and its Affiliates and their respective successors the directors, officers, managers and assigns employees of Purchaser and its Affiliates (including the respective Representatives of each of the foregoing Purchased Entities) (collectively, the “Buyer Purchaser Indemnified PersonsParties”) from and against any and all Losses of every kind, nature that any such Purchaser Indemnified Party actually suffers or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise incurs to the extent arising out of, relate relating to or result resulting from or as a consequence (i) any Excluded Liability, (ii) any breach by Seller of any of the following:
(i) the breach its covenants or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates agreements contained in this Agreement or in any Related Transaction Agreement (other than the Transition Services Agreement;
, Distribution Agreement and Supply Agreement), or (iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionRetained Businesses.
(b) Subject to any other limitations set forth in this ARTICLE IX, the indemnification provided for in Section 9.01(a)(ii) shall terminate (i) in the case of any covenant or agreement to be performed or complied with prior to the Closing, 12 months after the Closing Date or (ii) in the case of all other covenants or agreements (including this indemnity), in accordance with its terms or until fully performed (and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover no claims shall be made for indemnification pursuant to Section 7.2(a)(i9.01(a)(ii) shall be satisfied by reducing the Holdback Reserve Amount after such applicable date); provided, however, that would otherwise be payable to any claim for indemnity for any Losses for which Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied has received notice in accordance with Section 9.03(a) on or prior to the preceding sentence date the applicable indemnification would otherwise terminate in accordance with this Section 9.01(b) shall be survive solely for purposes of the specific matters in such claim until the liability of Seller shall have been determined pursuant to this ARTICLE IX and Seller shall have reimbursed the applicable Purchaser Indemnified Parties for the amount of such Losses that are payable with respect to such claim in accordance with this ARTICLE IX. For the avoidance of doubt, notwithstanding anything to the contrary, this ARTICLE IX is not intended to limit the survival periods contained in the R&W Policy, which contains survival periods that control for purposes thereunder. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall limit any claims or recoveries by Seller upon demand, by wire transfer of immediately available funds Purchaser with respect to an account designated in writing by such Buyer Indemnified PersonFraud.
Appears in 1 contract
Indemnification by Seller. Seller agrees, subject to the other terms, conditions and limitations of this Agreement (including the provisions of ARTICLE 10 hereof), to indemnify the Buyer and any Buyer Indemnitee against, and to hold the Buyer and each Buyer Indemnitee harmless from, all Loss arising out of:
(a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy failure of any representation or warranty of Seller contained in ARTICLE 4 of this Agreement or any certificate delivered pursuant to this Agreement, any Related Agreement to be true and correct as of the Closing Date or any exhibit the breach or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer violation of any Pre-Closing Product with any other product or service, covenant of Seller made herein;
(b) any of the adaptation Excluded Assets or modification by Buyer any of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, the Excluded Liabilities;
(c) the misuse operation of any Pre-Closing Product the Business or the use of any Pre-Closing Product in an application for which it was not designed Purchased Assets by Seller at any time or times on or prior to the Closing Date (including without limitation any and all Taxes arising out of, or payable with respect to, Seller’s business operations through the Closing Date);
(d) any failure of Seller to pay the Transaction Taxes;
(e) liability for noncompliance with any bulk sales, bulk transfer or similar laws applicable to the transactions contemplated by this Agreement (Seller’s compliance with specifications and directions which is hereby waived by the Buyer) or any claims asserting that any transactions contemplated by this Agreement constitute a fraudulent conveyance or similar claim;
(f) any demand, claim, debt, suit, cause of action, arbitration or other proceeding (including, but not limited to, a warranty claim, a product liability claim or any other claim) that is made or asserted by any third party that relates to any product or service that was sold, licensed or otherwise provided by Buyer to Seller;
(iig) the breach any demand, claim, debt, suit, cause of action or non-fulfillment ofproceeding made or asserted by a shareholder, creditor, receiver, or non-compliance withtrustee in bankruptcy of Seller, or of the property or assets of either, asserting that the transfer of the Purchased Assets to the Buyer hereunder constitutes a fraudulent conveyance, fraudulent transfer or a preference under any agreementapplicable state or federal law, obligation including but not limited to the United States Bankruptcy Code;
(h) any demand, claim, debt, suit, cause of action or covenant proceeding made or asserted by any employee or independent contractor of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to former employee or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure independent contractor of Seller or any of its Affiliates Affiliates, that relates in any manner to comply any termination by Seller or an Affiliate of Seller of such person’s employment or the services of such employee or independent contractor or any other matter relating to the employment of such employee or independent contractor by Seller or an Affiliate of Seller;
(i) Seller’s termination of the contractual relationship with any Laws applicable to the import or export of the Acquired Software in the United States, Canada Contractor and the European Union.employment of any of employees at any time prior to, on or after the Closing Date and any failure by Seller to pay or withhold any Taxes payable with respect to Seller’s employment of any employee; and
(bj) Subject to the any Liability under WARN or other terms and conditions applicable state or local statute or regulation affecting termination of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer employment of immediately available funds to an account designated in writing by such Buyer Indemnified Personemployees (“WARN Liability”).
Appears in 1 contract
Indemnification by Seller. (a) From Notwithstanding any investigation by Interland, from and after the Closing, Seller shall indemnify, defend and hold harmless Buyerand, to the extent provided in Section 8.5(a), defend Interland, its Affiliates and their respective subsidiaries, shareholders, affiliates, officers, directors, employees, agents, successors and assigns (collectively, the "Interland's Indemnified Persons") from and the respective Representatives of against, and reimburse each of the foregoing (the “Buyer Interland's Indemnified Persons”) from and against Persons with respect to, any and all Losses losses, damages, liabilities, costs and expenses, including interest from the date of every kindsuch loss to the time of payment, nature penalties, and reasonable attorneys' fees and costs, including without limitation fees and costs incurred in discovery, at trial, and in any post-trial or description asserted againstappellate proceeding (collectively, "Damages"), whether or sustainednot arising out of third-party claims and whether arising in contract, incurredtort or otherwise, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of incurred by any of the followingInterland's Indemnified Persons by reason of or arising out of or in connection with:
(i) the any breach or inaccuracy of any representation or warranty of Seller contained made in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or failure by Seller to perform any covenant of Seller or any of its Affiliates contained in required to be performed by it pursuant to this Agreement or in any Related the Services Agreement;, which failure has not been cured within 30 days of Seller's receipt of a notice of such failure from Interland, or if such failure cannot be cured within 30 days, Seller begins to cure such failure and diligently continues such efforts until cured; or
(iii) any Excluded liability or obligation other than an Assumed Liability;
(iv) , known or unknown, of Seller arising out of or in connection with the ownership, possession use, condition, maintenance or operation of the Acquired Business or the Transferred Assets by Seller on or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes , whether or not such liability or obligation is identified on a schedule hereto or otherwise constitutes or gives rise to a breach of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionthis Agreement.
(b) Subject This indemnification extends to any Damages suffered by any of the other terms and conditions Interland's Indemnified Persons, whether or not a claim is made against any of this Article VII, the Interland's Indemnified Persons by any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personthird party.
Appears in 1 contract
Indemnification by Seller. (a) From Subject to the provisions of this Article X and except with respect to Closing Payment Adjustments (which shall be governed exclusively by Article II) and indemnification for Taxes (which shall be governed exclusively by Article VII), effective as of and after the Closing, Seller shall indemnify, defend indemnify and hold harmless BuyerPurchaser and its Affiliates, its Affiliates and each of their respective successors directors, officers, employees, agents and assigns and the respective Representatives of each of the foregoing representatives (collectively, the “Buyer Purchaser Indemnified PersonsParties”) ), from and against any and all Losses of every kind, nature incurred or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of by any of the followingPurchaser Indemnified Parties arising out of or related to:
(i) any breach of any representation or warranty of Seller, at and as of the breach or inaccuracy Closing as though made at and as of the Closing (unless made as of a specific date, in which case at and as of such date), contained in Article III (other than any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller3.15);
(ii) the any breach of any covenant or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant agreement of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used be performed prior to the Closing;
(viii) any Taxes breach of any kind relating covenant or agreement of Seller contained in this Agreement to be performed, in whole or arising in part, after the Closing; and
(iv) any Excluded Liabilities (including any Losses suffered or Taxes incurred by any of the Purchaser Indemnified Parties in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionsuch Excluded Liabilities).
(b) Subject Notwithstanding any other provision to the other terms contrary (except with respect to indemnification for Taxes (which shall be governed exclusively by Article VII)):
(i) for the purposes of the determination of (A) whether there was a breach of any representation or warranty of Seller as of any particular date and conditions (B) the existence or amount of this Article VIIany Losses in respect of any such failure, any Losses that a Buyer materiality or Business Material Adverse Effect standard or qualification contained in or otherwise applicable to such representation or warranty shall be disregarded;
(ii) Seller shall not be required to indemnify or hold harmless any Purchaser Indemnified Person is entitled to recover Party against, or reimburse any Purchaser Indemnified Party for, any Losses: (A) except in respect of indemnification pursuant to Section 7.2(a)(i10.2(a)(iv), to the extent the related Liabilities were reflected in, reserved for or taken into account in the determination of Working Capital on the Final Closing Statement or were reflected or reserved for in the Business Financial Statements; (B) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any 10.2(a)(i), for any claim unless such claim or series of related claims involve Losses that become payable in excess of $195,000 (the “De Minimis Amount”) and if such Losses do not exceed the De Minimis Amount, such Losses shall not be applied to a Buyer or considered for purposes of calculating the aggregate amount of the Purchaser Indemnified Person Parties’ Losses under Section 10.2(b)(ii)(C); or (C) pursuant to Section 7.2(a10.2(a)(i), until the aggregate amount of the Purchaser Indemnified Parties’ Losses under Section 10.2(a)(i) that are not satisfied in accordance with exceeds $3,900,000 (the preceding sentence “Threshold”), after which Seller shall be payable obligated for the Purchaser Indemnified Parties’ Losses under Section 10.2(a)(i) for the amount of such Losses that exceeds the Threshold; provided, that any claim for indemnification under Section 10.2(a)(i) resulting from a breach of a Seller Fundamental Representation or the representations and warranties made pursuant to Section 3.17 or Section 3.21 (collectively, the “Fundamental Indemnification Matters”), shall not be subject to the De Minimis Amount or the Threshold; and
(iii) the cumulative indemnification obligations of Seller under Section 10.2(a)(i) (other than for Fundamental Indemnification Matters) shall in no event exceed, in aggregate, $25,000,000 (the “Cap”), and the cumulative indemnification obligations of Seller for the Fundamental Indemnification Matters, together with all other indemnification by Seller upon demand(other than any indemnification pursuant to Section 10.2(a)(iv), by wire transfer which indemnification, for avoidance of immediately available funds to an account designated doubt, shall be uncapped), shall in writing by such Buyer Indemnified Personno event exceed, in the aggregate, the Purchase Price.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless BuyerPurchaser, its Affiliates members, officers, directors, employees and their respective successors and assigns and agents after the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) Closing Date from and against any loss, liability, obligation, Lien, damage, cost and all Losses expense (including reasonable legal and accounting fees incurred in defending or prosecuting any claim for any such liability, loss or damage) ("Purchaser Losses") arising out of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the followingresulting from:
(ia) the breach untruth or inaccuracy as of the date hereof or on the Closing Date of any representation or warranty of Seller contained in this Agreement, any Related Agreement or the Schedules hereto (or in any exhibit document, writing, or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellerunder Article VIII of this Agreement);
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iiib) any Excluded Liability;
(ivc) the ownership, possession whether or operation of the Acquired Assets not disclosed by Seller in this Agreement or on Schedule 3.22, any Action obligation or liability of Seller related to any actual or alleged violation or liability arising under any Environmental Laws, including, without limitation, any Release or threatened Release of Hazardous Substances occurring prior to, or if as a result of Seller's activities, present, or if, not as a result of Seller's activities, to the extent present on, the Closing Date, and any Environmental Claims arising out of events or circumstances occurring prior to or continuing on the Closing Date;
(d) any obligation or liability arising from claims, proceedings or causes of action arising from product warranty or product liability claims with respect to products, materials or arising from any Acquired Intellectual Property deliveredservices produced, installed invoiced, sold, performed or used shipped by Seller on or prior to the ClosingClosing Date;
(ve) any Taxes action, suit or proceeding pending on the Closing Date, notwithstanding disclosure thereof in this Agreement or on the Most Recent Balance Sheet or any subsequent claim, action, suit or proceeding arising out of any kind or relating to or arising in connection with the transfer of the Acquired Assets to Buyersuch pending matters;
(vif) the failure by Seller to perform any of its covenants or obligations hereunder; or
(g) the failure of Seller Schering to comply with, or perform fully reimburse Purchaser for any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionUnbilled Reimbursable Expenses.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. Subject to the provisions of this Article IX, following the Closing, Purchaser and its Affiliates, and their respective officers, directors, employees, agents, successors and assigns (each, a “Purchaser Indemnified Party”) shall be indemnified and held harmless by Seller for and against all losses, Liabilities, damages, claims, costs and expenses, interest, awards, judgments, fines, fees, obligations and penalties (including reasonable attorneys’ and consultants’ fees and expenses) suffered, sustained or incurred by them (hereinafter, a “Loss”), arising out of or resulting from, without duplication: (a) From and after the Closing, any breach by Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of made by Seller contained in this Agreement, which shall be deemed made on the date of the Original Agreement and the Closing Date (other than any Related Agreement representation or any exhibit or certificate delivered hereunder; warranty that expressly relates to a specific date, which representation and warranty shall be made on the date so specified) (provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, that Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Purchaser Indemnified Persons or otherwise be liable Parties pursuant to Buyer this Section 9.02(a) for any Tax imposed with respect to a Post-Closing Tax period on the extent basis of such Losses that arise out of, relate to or result from (a) any combination by Buyer a breach of any Pre-Closing Product with any representation or warranty contained in Section 7.01 (Tax Representations) other product or servicethan the representations and warranties contained in the second sentence of Section 7.01(e), Section 7.01(h), and Section 7.01(k)), (b) the adaptation or modification by Buyer breach of any Pre-Closing Product where infringement would not have occurred but for such adaptation covenant or modification agreement contained in this Agreement requiring performance by BuyerSeller or any Company (prior to Closing), (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or Excluded Taxes, (d) Seller’s compliance with specifications an invalid or ineffective (for federal income Tax purposes and directions provided by Buyer to Seller;
(iithe extent applicable for state or local income Tax purposes) Section 338 Election solely to the extent Taxes are caused by, and would not have been incurred but for, a breach of any representation in Section 7.01 or non-fulfillment of, or non-compliance with, a breach of any agreement, obligation or covenant of Seller or any Company (other than covenants to be performed by a Company after the Closing unless performed at the direction and control of its Affiliates Seller, if and to the extent so exercised by the Seller) contained in this Agreement or in any Related Agreement;
other document contemplated hereby, (iiie) any Excluded Retained Assets, (f) any Liability;
(iv) , whether known or unknown as of the ownershipClosing Date, possession or with respect to the operation of the Acquired Assets by Seller Business or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement Companies prior to the Closing Date (whether such claim or Action is brought by a third party or otherwise), other than to the extent any such Loss arises under any Contract (b) the Surviving Existing License Agreement Provisions following other than under any Contract for any prior sales of business units by any Company or any Losses arising out of or resulting from any breach of any Contract by any Company prior to the Closing as set forth herein; or
Date), (viig) the failure of Seller or any of its Affiliates to comply with any Laws applicable Third Party Claim to the import extent of any punitive damages award where such Third Party Claim arises out of or export results from the operation or conduct of the Acquired Software in Business or the United States, Canada and the European Union.
(b) Subject Companies prior to the other terms Closing Date and conditions of this Article VIIany Environmental Liability, and (h) any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonEnvironmental Liability.
Appears in 1 contract
Samples: Stock Purchase Agreement (Entercom Communications Corp)
Indemnification by Seller. (a) From Subject to Section 7.3, from and after the Closing, Seller shall and the Shareholders will, jointly and severally, indemnify, defend and hold harmless Buyer, Buyer and its Affiliates and their Buyer’s and its Affiliates’ respective successors officers, directors, employees, parties, agents, and assigns and the respective Representatives of each of the foregoing attorneys (collectively, the “Buyer Indemnified PersonsParties”) harmless from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued incurred by Buyer Indemnified Parties, directly or indirectly indirectly, caused by, such Buyer Indemnified Person that arise out of, relate to or result resulting from or as a consequence arising out of any of the following:
(i) the failure of Seller to perform any covenant, obligation or agreement of Seller contained in this Agreement or in Seller’s Agreements, or (ii) any breach or inaccuracy by Seller of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related the documents delivered pursuant to the provisions of this Agreement;
, or (iii) any Excluded Liability;
suit, action, proceeding, claim or investigation (iva “Claim”) pending or threatened against or affecting the ownership, possession Business or operation any of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed matter or used state of facts existing prior to the Closing;
, including any Claim of any Governmental Authority or any party to any contract with Seller or who has otherwise, directly or indirectly through its agents or distributors, conducted business with Seller; (v) any Taxes Claim made or filed by any person claiming that any Intellectual Property violates any patent or other rights of such person, (vi) any kind relating to Claim arising from or arising in connection with any Excluded Assets or any liability that has not been expressly assumed by the transfer Buyer under this Agreement; (v) any Claim of a trustee or receiver or other interested party in connection with or as a result of or otherwise following the insolvency, reorganization or bankruptcy of Seller, whether made or filed as part of formal bankruptcy or reorganization proceedings or otherwise, which claim, demand, action, proceeding or lawsuit in any way challenges, seeks to set aside or deprive Buyer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export benefits of the Acquired Software in the United States, Canada and the European Uniontransaction contemplated by this Agreement.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From and after Subject to the Closinglimitations herein, Seller shall agrees to indemnify, defend and hold harmless Parent, Buyer, its each Company, their respective Affiliates (other than Seller) and their respective successors officers, directors, managers, employees, agents, representatives, members, partners and assigns and the respective Representatives of each of the foregoing stockholders (collectively, the “Buyer Indemnified PersonsParties”) from and against any and all Losses of every kindLoss arising from, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate relating to or result from constituting (i) any breach or as a consequence inaccuracy in any of the representations and warranties contained in Article III or IV or any instrument or any closing certificate delivered by or on behalf of Seller pursuant to this Agreement, (ii) any breach of any of the following:
(i) the breach covenants or inaccuracy of any representation or warranty other agreements of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
the Retained Liabilities (ivclauses (i) the ownershipthrough (iii), possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unioncollectively “Buyer Losses”).
(b) Subject to Section 8.1(c), Seller will be liable to the Buyer Indemnified Parties for Buyer Losses resulting from breaches or inaccuracies of any of the representations and warranties contained in Article IV (other terms than the Fundamental Representations) (“Buyer Basket Losses”) only if the sum of the aggregate amount of all Buyer Basket Losses exceeds $100,000 (the “Buyer Basket Amount”), in which case Seller will be liable for the aggregate amount of all Buyer Basket Losses; provided that this Section 8.1(b) shall not apply to any Buyer Losses arising from fraud or intentional misrepresentation. Seller will not be liable for Buyer Losses for any claim relating to any single matter or series of related matters under Section 8.1(a)(i) unless such claim results in Buyer Losses equal to or greater than Twenty-Five Thousand Dollars ($25,000.00).
(c) Notwithstanding anything to the contrary in this Agreement, except for Buyer Losses arising from fraud or intentional misrepresentation on the part of Seller, (i) in no event shall Seller be liable for aggregate Buyer Basket Losses in excess of $2,595,900 and conditions (ii) in no event shall Seller be liable for aggregate Buyer Losses in excess of this Article VII, any Losses that the Purchase Price.
(d) If a Buyer Indemnified Person is entitled to recover pursuant to Party has a claim for indemnification under this Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable 8.1, Buyer will deliver to Seller pursuant one or more written notices of Buyer Losses (i) in the case of a breach or inaccuracy of Article IV (other than the Fundamental Representations), prior to the date that is [*] immediately following the Closing, (ii) in the case of a breach or inaccuracy of the representations and warranties contained in Section 2.34.11 (Taxes), at any time prior to 60 days following the expiration of the applicable statute of limitations, (iii) in the case of a breach or inaccuracy of the representations and warranties contained in Section 4.17 (Environmental Matters), at any time prior to the date that is 24 months immediately following the Closing, and (iv) in the case of any Retained Liabilities or a breach or inaccuracy of the Fundamental Representations (other than the representations and warranties contained in Section 4.11 (Taxes) or Section 4.17 (Environmental Matters)) or any breach of any covenant or other agreement of any member of the Seller Group contained in this Agreement, at any time. Seller will have no liability under this Section 8.1 unless the written notices required by the preceding sentence are given by the applicable deadline. Any written notice will state in reasonable detail the basis for such Buyer Losses to the extent then known by Buyer and the nature of the Buyer Loss for which indemnification is sought, and the amount of the Buyer Loss claimed, if then known by any of the Buyer Indemnified Parties. If such written notice (or an amended notice) states the amount of the Buyer Loss claimed and Seller notifies Buyer that become payable Seller does not dispute the claim described in [*] Please refer to footnote 1 on page 1 of this Exhibit 2.1. such notice or fails to notify Buyer within 20 Business Days after delivery of such notice by Buyer whether Seller disputes the claim described in such notice, the Buyer Loss in the amount specified in Buyer’s notice will be deemed admitted by Seller, and Seller will indemnify the applicable Buyer Indemnified Parties for such Buyer Loss in accordance with Section 8.1(e). If Seller has timely disputed the liability of Seller with respect to such claim, Seller and Buyer will proceed in good faith to negotiate a resolution of such dispute for at least 30 days after delivery of Seller’s notice after which the Parties may pursue any remedies available to them under this Agreement. If a written notice does not state the amount of the Buyer Loss claimed, such omission will not preclude any Buyer Indemnified Party from recovering from Seller the amount of the Buyer Loss with respect to the claim described in such notice if any such amount is promptly provided after it is determined. In order to assert its right to indemnification under this Article VIII, Buyer will not be required to provide any notice except as provided in this Section 8.1(d).
(e) Following a Seller Liability Determination with respect to a Buyer Loss, Buyer (on behalf of the applicable Buyer Indemnified Person pursuant Party), shall recover such Buyer Loss in the following manner:
(i) If the amount of such Buyer Loss is less than or equal to Section 7.2(a) that are not satisfied the Escrow Fund Value, then Buyer shall receive a distribution from the Escrow Fund in an amount equal to such Buyer Loss in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer Escrow Agreement.
(ii) If the amount of immediately available funds to an account designated in writing by such Buyer Indemnified PersonLoss is greater than the Escrow Fund Value but less or equal to than the sum of (x) the Escrow Fund Value plus (y) the Parent Shares Value (determined as of the applicable Seller Liability Determination Date) (such sum, the “Indemnity Threshold Amount”), then (A) Buyer shall receive a distribution of the entire amount remaining in the Escrow Fund (if any) in accordance with the Escrow Agreement; and (B) Seller shall surrender to Buyer in accordance with Section 2.1(i) of the Subscription Agreement the number of Seller Parent Shares with a Parent Shares Value (determined as of the applicable Seller Liability Determination Date) equal to (1) such Buyer Loss minus (2) the Escrow Fund Value.
(iii) If the amount of such Buyer Loss is greater than the Indemnity Threshold Amount, then (A) Buyer shall receive a distribution of all of the remaining Escrow Fund (if any) in accordance with the Escrow Agreement; (B) Seller shall surrender to Buyer in accordance with Section 2.1(i) of the Subscription Agreement all of the Seller Parent Shares; and (C) the Seller shall pay Buyer, within 10 days following such Seller Liability Determination, an amount in cash equal to (a) such Buyer Loss minus (b) the Indemnity Threshold Amount.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend indemnify and hold save harmless BuyerPurchaser, its Affiliates and their respective successors directors, officers, agents, employees and assigns and the respective Representatives of each of the foregoing shareholders (collectively referred to as the “Buyer Purchaser Indemnified PersonsParties”) from and against any and all Losses of every kind, nature Claims which may be made or description asserted againstbrought against the Purchaser Indemnified Parties, or sustainedwhich they may suffer or incur, incurred, suffered or accrued directly or indirectly byindirectly, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence result of any of the followingor in connection with:
(ia) the any misrepresentation or any incorrectness in or breach or inaccuracy of any representation or warranty of Seller contained in this the Transaction Documents or in any certificate or other document furnished by or on behalf of Seller pursuant to the Transaction Documents;
(b) any non-fulfilment or breach of any covenant or agreement on the part of Seller contained in the Transaction Documents or in any certificate or other document furnished by or on behalf of Seller pursuant to the Transaction Documents, including for greater certainty any non-fulfilment or breach of any covenant or agreement on the part of Seller contained in the Transaction Documents or in any certificate or other document furnished by or on behalf of Seller pursuant to the Transaction Documents to be performed or fulfilled by Seller during the Contract Period or Outsourcing Period, as the case may be;
(c) the termination or non-renewal by Seller of the Marketing Agreement, the Residual Generating Agreements or agreements with respect to the matters described in Section 2.1(iii) to the extent that such termination or non-renewal affects the Purchased Rights;
(d) all liabilities, debts and obligations of Seller, other than the Assumed Liabilities;
(e) the imposition of any Related Agreement statutory trust or any exhibit lien on the Purchased Rights not arising through Purchaser relating to Taxes that is not removed or certificate delivered hereunder; providedfor which a bond has not been posted within 90 days of such lien. Provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable Purchaser for any Claim including any Claim for Contribution Margin Shortfalls pursuant to Buyer Section 2.4 to the extent of such Losses that arise out of, relate to or result Claim results from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) SellerPurchaser’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionTransaction Documents.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend agrees to indemnify and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) Group Member from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, and Expenses incurred by such Buyer Indemnified Person that arise out of, relate to Group Member in connection with or result from or as a consequence of any of the followingarising from:
(i) any breach of any warranty or the breach or inaccuracy of any representation or warranty of Seller and the Company contained or referred to in this Agreement, any Related Agreement or any exhibit or the certificate delivered hereunder; provided, however, in by or on behalf of Seller and the event the Buyer Indemnified Persons would otherwise be entitled Company pursuant to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller9.1(a);
(ii) any breach by Seller and the breach or non-fulfillment Company of, or non-compliance withfailure by Seller and the Company to perform, any agreement, obligation of their respective covenants or covenant of Seller or any of its Affiliates obligations contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liabilityclaim brought by an ERISA Client who is or was prior to the Closing Date a Related Client for events that occurred in whole or in part on or prior to the Closing Date;
(iv) the ownership, possession any Taxes imposed on or operation in respect of the Acquired Assets by Seller Company, the Subsidiary or any Action of the Funds in respect of any Pre-Closing Tax Period (including as a result of the Company, the Subsidiary or any of the Funds being treated prior to the Closing as a member of any consolidated, combined, unitary or similar group with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior which the Company is not the common parent pursuant to the Closing;laws of the United States, any foreign jurisdiction or any state or locality), as reasonably determined in accordance with the Company’s ordinary and customary Tax reporting practices, and based on a closing of the books of the Company, the Subsidiary or any of the Funds at the end of the Closing Date, and
(v) any Taxes of any kind Losses or Expenses relating to or arising in connection with the transfer of claims against the Acquired Assets to Buyer;
(vi) Company by Xxxxxx X. Xxxx Technology Licensing, L.P. or its Affiliates, successors or assigns, including the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software matter described in the United States, Canada and the European UnionSchedule 5.12.
(b) Subject Notwithstanding anything in Section 11.1(a) to the other terms contrary, Seller shall be required to indemnify and conditions hold harmless each Buyer Group Member in respect of this Article VIIclaims for indemnification made under Section 11.1(a)(i) for breaches of representations and warranties only to the extent that:
(i) the amount of Loss and Expense suffered by Buyer Group Members related to such individual claim under Section 11.1(a)(i) exceeds $25,000 (it being understood that such $25,000 shall be a deductible for which Seller shall bear no indemnification responsibility);
(ii) the aggregate amount of all Losses and Expenses for claims under Section 11.1(a)(i) exceeds one percent (1%) of the Final Cash Purchase Price; provided that once such Losses and Expenses equal or exceed such threshold, subject to Sections 11.1(b)(i) and 11.1(b)(iii), Seller shall be liable for all Losses and Expenses (including any Losses that a Buyer Indemnified Person is entitled to recover and Expenses previously not indemnified pursuant to this Section 7.2(a)(i11.1(b)(ii); and
(iii) the aggregate amount required to be paid by Seller related to such claims under Section 11.1(a)(i) shall not exceed ten percent (10%) of the Final Cash Purchase Price. Notwithstanding anything to the contrary herein, the limitations contained in clauses (i), (ii) and (iii) shall not apply to any Loss or Expense incurred by any Buyer Group Member: (A) in connection with or arising from fraud, (B) any breach of any representation or warranty in Sections 5.2(b), 5.3, 5.4(a), 5.7 and 5.24(g) or (C) for claims pursuant to Sections 11.1(a)(ii), 11.1(a)(iii), 11.1(a)(iv) and 11.1(a)(v). In no event shall the aggregate amount required to be satisfied paid by reducing Seller without such limitations pursuant to this Section 11.1(a) exceed the Holdback Reserve Amount Final Cash Purchase Price.
(c) The indemnification provided for in Section 11.1(a)(i) shall terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.1(a)(i) thereafter), except that would otherwise be payable the indemnification by the Company under Section 11.1(a)(i) shall continue as to:
(i) the representations and warranties of Seller and the Company set forth in Sections 5.2, 5.3, 5.4(a), 5.7, 5.9(g), 5.14, 5.17(c), 5.24(d), and 5.24(g), which shall survive until the expiration of the relevant statutory period of limitations applicable to the underlying claim, giving effect to any waiver, mitigation or extension thereof;
(ii) the representations and warranties of Seller and the Company set forth in Sections 5.9 (other than 5.9(g)), 5.17 (other than 5.17(d)), 5.21 and 5.24 (other than 5.24(d) and 5.24(g)), which shall survive until the earlier of (x) the fifth anniversary of the Closing Date and (y) the relevant statutory period of limitations applicable to the underlying claim, giving effect to any waiver, mitigation or extension thereof;
(iii) any Losses or Expenses of which any Buyer Group Member has validly given a Claim Notice to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence requirements of Section 11.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 11.1(c), as to which the obligation of Seller shall continue solely with respect to the specific matters in such Claim Notice until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer Group Members for the full amount of such Losses and Expenses that are payable with respect to such Claim Notice in accordance with this Article XI; and
(iv) claims for indemnification based on fraud.
(d) The indemnification provided for in Section 11.1(a)(ii) shall survive the execution and delivery of this Agreement and the Closing until such obligations and covenants identified therein are performed or the obligation to so perform shall have expired and for a period of ninety (90) days thereafter, except the covenants of Seller set forth in Articles II and III and Section 8.2 shall survive until the expiration of the relevant statutory period of limitations applicable to the underlying claim, giving effect to any waiver, mitigation or extension thereof; and, provided, that any Losses or Expenses of which any Buyer Group Member has validly given a Claim Notice to Seller in accordance with the requirements of Section 11.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 11.1(d), as to which the obligation of Seller shall continue solely with respect to the specific matters in such Claim Notice until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer Group Members for the full amount of such Losses and Expenses that are payable with respect to such Claim Notice in accordance with this Article XI.
(e) The indemnification provided for in Section 11.1(a)(iii) shall survive until the expiration of the relevant statutory period of limitations applicable to the underlying claim (and no claims shall be payable made by any Buyer Group Member under Section 11.1(a)(iii) thereafter).
(f) The indemnification provided for in Section 11.1(a)(iv) shall survive the Closing Date and continue until thirty (30) days following the expiration of the statute of limitations on assessment of any Taxes. Notwithstanding the foregoing, any claim for indemnification shall survive such termination date if any Buyer Group Member, prior to such termination date, shall have advised Seller upon demand, by wire transfer in writing of immediately available funds facts that constitute or may give rise to an account designated alleged claim for indemnification under Section 11.1(a)(iv), specifying in writing by reasonable detail the basis under this Agreement for such Buyer Indemnified Personclaim.
(g) The indemnification provided for in Section 11.1(a)(v) shall survive the Closing Date and continue until the liability of Seller shall have been determined pursuant to this Article XI.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amr Corp)
Indemnification by Seller. (a) From Seller and after the Closing, Seller shall indemnify, defend Principals jointly and severally hereby agree to indemnify Buyer against and hold it harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses losses, liabilities, costs, damages, claims and expenses (including, without limitation, attorneys fees and expenses incurred by Buyer in any action or proceeding between Buyer and Seller and/or the Principals or between Buyer and any third party or otherwise) ("Damages") which Buyer may sustain at any time by reason of every kind(i) noncompliance with any applicable bulk sales or transfer law, nature (ii) any liability or description asserted contract of, or claim against, Seller, whether contingent or sustainedabsolute, incurreddirect or indirect, suffered known or accrued directly unknown, matured or indirectly unmatured (including but not limited to liabilities for taxes), except for Assumed Liabilities, (iii) any liability or claim arising in any way from any service rendered, or action taken by, such Buyer Indemnified Person that arise out or relating to the operations of, relate Seller prior to the Closing Date, except for the Assumed Liabilities, (iv) any liability or result from claim under any environmental laws relating to any event, action or as a consequence of any of failure to act which occurred prior to the following:
Closing Date, or (iv) the breach or inaccuracy of or failure to comply with, or the existence of any representation or warranty of Seller contained facts resulting in this Agreementthe inaccuracy of, any Related Agreement of the warranties, representations, conditions, covenants or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant agreements of Seller or any of its Affiliates the Principals contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownershipagreement or document delivered pursuant hereto or in connection herewith, possession or operation arising out of the Acquired Assets consummation of the transactions contemplated hereby. Buyer shall have the right to set-off and deduct any Damages incurred by it under this Agreement from any payments required to be made by Buyer under the Note or under any other obligation of Buyer to Seller; provided, however, that prior to making any offset from any payment, Buyer shall give at least 10 days' prior written notice thereof to the holder of the Note. If the holder objects to such set-off and the parties are unable to resolve such dispute within 10 days, the Buyer may place the amount in dispute into an escrow account until the dispute is ultimately resolved. In addition, at Seller's election, Seller shall have the right to reimburse Buyer for Damages by returning to Buyer Shares having an aggregate Market Value equal to the amount of the Damages. The Seller and the Principals shall not have any liability to indemnify the Buyer except to the extent that the aggregate of the Damages exceeds $25,000 and in no event shall Seller or the Principals have any Action with respect to or arising from liability for any Acquired Intellectual Property delivered, installed or used prior to Damages which exceed the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer amount of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionPurchase Price.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Samples: Asset Purchase Agreement (Esquire Communications LTD)
Indemnification by Seller. (a) From and after the Closing, and subject to the terms of this Agreement, Seller shall indemnify, defend indemnify and hold harmless Buyer, Buyer and its Affiliates and each of their respective successors officers, directors, employees, agents and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsParties”) from and against against, and compensate and reimburse any Buyer Indemnified Party for, any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, that such Buyer Indemnified Person that arise Party may suffer or incur, or become subject to, without duplication, as a result of, relating to or arising out of, relate to or result from or as a consequence of any of the following:
(i) the any breach of or inaccuracy of in any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, contained in the event certificate required to be delivered pursuant to Section 10.03(c) (without giving effect to any “Material Adverse Effect” or other similar materiality qualifier contained therein; provided that the Buyer Indemnified Persons would otherwise word “material” in the definitions of “Material Adverse Effect”, “Material Contract,” “Material Supplier” and “Material Customer” shall be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellergiven effect);
(ii) the any breach or non-fulfillment of, failure by Seller to perform or non-compliance with, any agreement, obligation or covenant of Seller or comply with any of its Affiliates contained covenants or agreements in this Agreement or in any Related Agreementthat by their terms contemplate performance following the Closing;
(iii) any Excluded LiabilityAsset or Excluded Liability (including any Excluded Liability of any Transferred Entity);
(iv) the ownership, possession or operation any Seller Portion of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;Shared Contract; or
(v) any Taxes of any kind relating to or arising the matter set forth in connection with the transfer Section 12.02 of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionDisclosure Schedules.
(b) Subject Notwithstanding anything in this Agreement to the contrary:
(i) no Buyer Indemnified Party shall have any claim for indemnification from Seller under Section 12.02(a)(i) based upon, arising out of, with respect to, or by reason of any breach of or inaccuracy in any representation or warranty other terms than any Seller Fundamental Representation; provided that this Section 12.02(b)(i) shall not apply to any Losses based upon, arising out of, with respect to or by reason of Fraud;
(ii) subject to Section 12.07(c), with respect to any claim for indemnification under Section 12.02(a)(i) based upon, arising out of, with respect to or by reason of any breach of or inaccuracy in any Seller Fundamental Representation, the Buyer Indemnified Parties shall (A) first, recover for all or any portion of Losses with respect to such claim directly from Seller, up to an amount equal to the Retention, (B) second, seek recovery for such Losses from the R&W Policy, to the extent available, and conditions (C) third, recover for all or any portion of such Losses in excess of the then-remaining amount of coverage under the R&W Policy available for such Losses directly from Seller;
(iii) the cumulative indemnification obligation of Seller under this Article VII, XII (other than Section 12.02(a)(iii)) shall in no event exceed 100% of the Purchase Price; provided that this Section 12.02(b)(iii) shall not apply to any Losses that a based upon, arising out of, with respect to or by reason of Fraud;
(iv) no Buyer Indemnified Person is Party shall be entitled to recover pursuant to indemnification for Losses resulting from such claim or series of related claims where the Losses resulting therefrom are less than $50,000 (the “Claim Threshold”); provided that this Section 7.2(a)(i12.02(b)(iv) shall not apply to any Losses based upon, arising out of, with respect to or by reason of (x) any breach of or inaccuracy in any Seller Fundamental Representation, (y) breach or failure by Seller to perform or comply with any of its covenants or agreements in Section 7.04, Section 7.05 or Section 7.12, or (z) Fraud; and
(v) Seller shall not be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable required to Seller pursuant to Section 2.3. Any Losses that become payable to a indemnify or hold harmless any Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied Party for any Losses reflected in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonFinal Closing Statement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Elanco Animal Health Inc)
Indemnification by Seller. (a) From and after the Closing, subject to Section 9.1, Section 9.2(b) and Section 9.5, Seller shall indemnify, defend indemnify and hold harmless BuyerPurchaser and its Affiliates, its Affiliates Representatives and their respective successors and permitted assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Purchaser Indemnified PersonsParties”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of incurred by any of the following:Purchaser Indemnified Parties based upon or arising from (without duplication):
(i) the any breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to SellerArticle V;
(ii) the any breach of any covenant or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant agreement of Seller or any of its Affiliates contained in this Agreement or in any Related Agreementthat occurs from and after the Closing;
(iii) any Excluded Liability;
(iv) the ownership, possession breach of any covenant or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used agreement contained in Section 7.2 that occurred prior to the Closing;
(iv) the implementation of the Pre-Signing Reorganization or the Acquired Assets, to the extent not related to the Business;
(v) any Taxes (A) incurred by the Acquired Company for any Pre-Closing Tax Period (with respect to any Straddle Period, the portion of any kind such Straddle Period ending on the Closing Date, as determined in accordance with Section 7.16(c)) or (B) relating to or arising in connection with the transfer of the Acquired Assets for any Pre-Closing Tax Period (with respect to Buyerany Straddle Period, the portion of such Straddle Period ending on the Closing Date, as determined in accordance with Section 7.16(c)), in each case, except to the extent of the amount of such Taxes were reflected in the calculation of the Purchase Price;
(vi) the failure of Seller to comply with, any Taxes (excluding any interest or perform penalties) imposed on Purchaser or any of its obligations underAffiliates as a result of a failure to withhold the correct amount of Taxes from any payment of the Purchase Price;
(vii) Taxes, (a) if any, imposed on the Existing License Agreement Acquired Company by reason of being a member of an affiliated, consolidated, combined or unitary Tax group or fiscal unity at any time prior to the Closing, as a transferee or successor as a result of a transaction occurring prior to the Closing or by reason of being party to any Tax Sharing Agreement that was entered into prior to the Closing;
(bviii) the Surviving Existing License Agreement Provisions an Assumption Order not being entered, or a Ground Lease Adverse Order being entered; provided that (A) following the Closing and at the time that the Ground Lease Adverse Order is entered, no Event of Default (as set forth hereindefined in the Ground Lease) giving the lessor under the Ground Lease a right to terminate the Ground Lease pursuant to Section 14.2(a) thereof shall have occurred and remain uncured pursuant to the terms of the Ground Lease following receipt by the Acquired Company of the applicable notice under the Ground Lease and expiration of the applicable cure period under the Ground Lease, except to the extent that a Ground Lease Adverse Order has been entered prior to the end of the applicable cure period, and at the time of the entry of such Ground Lease Adverse Order, such Event of Default remains uncured, and (B) for the avoidance of doubt, to the extent Seller or its Affiliates has complied with its obligations under the second sentence of Section 7.21, Purchaser shall not be entitled to indemnification for the Bestwall Lease Discharge Costs; orand
(viiix) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.[*******]
(b) Subject Purchaser shall, and shall cause its Affiliates to, take all reasonable steps to the other terms and conditions mitigate any Loss contemplated by Section 9.2(a) upon becoming aware of this Article VII, any Losses event that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Persongives rise thereto.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VIIARTICLE 9, from and after the Closing, Seller shall 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 as a result of:
(a) any breach of any of the representations or warranties of Seller or the Company contained in this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date;
(b) any breach or non-fulfillment of (i) any covenant, agreement or obligation to be performed by Seller following the Closing pursuant to this Agreement and (ii) any Surviving Pre-Closing Covenant;
(c) any and all Seller Taxes;
(d) the Compensation Claim;
(e) the Stratford Claim;
(f) the Xxxxxx Claim; and
(g) any Plan Claims, to the extent not paid at the Closing. Notwithstanding anything to the contrary contained in this Agreement, Seller’s indemnification obligations set forth in Section 9.2(g) shall only survive the Closing and shall only remain in full force and effect until the date that a Buyer Indemnified Person is entitled to recover three (3) months from the Closing Date, provided that (i) any claims pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a9.2(g) that are not satisfied asserted in accordance good faith with reasonable specificity (to the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated extent known at such time) and in writing by notice from Buyer to Seller prior to the end of such Buyer Indemnified Personthree (3) month period shall survive until finally resolved, and (ii) the expiration of such three (3) month survival period with respect to Section 9.2(g) shall not impair Buyer’s right to make claims (including Plan Claims) under the other subsections of Section 9.2.”
4. Amendment to Section 9.4(j). Section 9.4(j) of the Agreement shall be deleted in its entirety and replaced with the following:
Appears in 1 contract
Indemnification by Seller. (a) From Subject to the terms and after the Closingconditions of this Article XI, Seller shall agrees to indemnify, defend and hold harmless BuyerPurchaser Indemnitees from, its Affiliates against, and their respective successors shall compensate and assigns reimburse each Purchaser Indemnitee for and the respective Representatives in respect of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, relating to, imposed upon or sustainedincurred by any Purchaser Indemnitee by reason of, incurredresulting from, suffered based upon or accrued directly or indirectly by, such Buyer Indemnified Person that arise arising out of, relate to whether directly or result from or as a consequence of any of the following:
indirectly, (i) the breach breach, inaccuracy, untruth or inaccuracy incompleteness of any representation or warranty of Seller contained in or made pursuant to this Agreement, any Related Ancillary Agreement or any certificate, schedule or exhibit delivered by Seller in connection with this Agreement or certificate delivered hereunderany Ancillary Agreement, (ii) the breach of any covenant or obligation of Seller set forth in this Agreement or any Ancillary Agreement, (iii) any Liability of Seller other than the Assumed Liabilities, (iv) any matter identified or referred to in Schedule 11.2, (v) any Liability to which Purchaser Indemnitees may become subject and that arises from or relates to the failure to comply with any bulk transfer law or similar Laws in connection with the Transaction, or (vi) any Proceeding relating to any breach, alleged breach, Liability or matter of the type referred to above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Article XI) (collectively, "Purchaser Indemnifiable Losses").
(b) Notwithstanding anything to the contrary contained in this Agreement, no claim for Purchaser Indemnifiable Losses shall be made under this Article XI: (i) unless Seller receives a Claim Notice during the Indemnification Period, (ii) unless the aggregate of Purchaser Indemnifiable Losses shall exceed $50,000 (at which point Seller shall become liable for the aggregate Losses, and not just amounts in excess of $50,000), (iii) for any Losses to the extent that the Purchaser Indemnitees have received payments in respect of claims made under this Article XI in excess of $3,300,000 in the aggregate, (iv) to the extent the Purchaser had a reasonable opportunity, but failed, in good faith to mitigate the Losses, including but not limited to the failure to use commercially reasonable efforts to recover under a policy of insurance or under a contractual right of set-off or indemnity, or (v) with respect to any Losses suffered, incurred or sustained by any Purchaser Indemnitee or to which any of them becomes subject to the extent such Losses arise from or were directly caused by actions taken or failed to be taken by Purchaser or any of its Affiliates after the Closing. The Purchaser Indemnitees' sole and exclusive remedy against Seller for Losses shall be indemnification under this Article XI; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates nothing contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i11.2(b) shall limit any remedy at law or equity to which Purchaser may be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to entitled against Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personfor fraud or intentional misrepresentation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Applied Microsystems Corp /Wa/)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnifyindemnify Purchaser and its affiliates and each of their respective officers, defend directors, employees, stockholders, agents and representatives against, and hold them harmless Buyerfrom, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing any Losses (the “Buyer Indemnified Persons”) from and against any and all Losses of every kindas defined in Section 9.05), nature as incurred (payable promptly upon written request), arising from, in connection with or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the followingotherwise with respect to:
(i) the any breach or inaccuracy of any representation or warranty of Seller that survives the Closing and is contained in this Agreement, in any Related Ancillary Agreement or in any exhibit or certificate document delivered hereunder; provided, however, in connection herewith (it being agreed and acknowledged by the event the Buyer Indemnified Persons would otherwise be entitled parties that for purposes of Purchaser's right to indemnification for Losses, pursuant to this Section 8.01 the representations and warranties of Seller shall be deemed not be obligated (under this Section 7.2(a)(i) qualified by any references therein to materiality generally or otherwise) to indemnify the Buyer Indemnified Persons whether or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to not any breach results or may result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by a Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to SellerMaterial Adverse Effect);
(ii) the any breach or non-fulfillment of, or non-compliance with, of any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Ancillary Agreement;
(iii) any Excluded Liability;Liability (including any Excluded Liability for which Purchaser would otherwise be liable due to its waiver of compliance with bulk transfer laws); and
(iv) the ownershipany fees, possession expenses or operation of the Acquired Assets other payments incurred or owed by Seller to any brokers, financial advisors or any Action with respect to comparable other persons retained or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising employed by it in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Uniontransactions contemplated by this Agreement.
(b) Subject Seller shall not be required to indemnify any person, and shall not have any liability:
(i) under clause (i) of Section 8.01(a) unless the aggregate of all Losses for which Seller would, but for this clause (i), be liable exceeds on a cumulative basis an amount equal to $2,250,000 (the "THRESHOLD AMOUNT"), and then only to the other terms and conditions extent of any such excess, PROVIDED, that (A) for purposes of this Article VIIclause (i), Losses shall not include any Losses that a Buyer Indemnified Person is entitled to recover amounts paid or payable by Purchaser pursuant to Section 7.2(a)(ithe SARCA and (B) shall be satisfied by reducing after the Holdback Reserve aggregate of all Losses exceeds on a cumulative basis the Threshold Amount that would otherwise be payable to Seller pursuant after giving effect to Section 2.3. Any 8.01(b)
(ii) Purchaser may assert its right to indemnification hereunder to the full extent of Losses that become payable arising from the breach of a particular representation or warranty (which, for the purposes hereof, shall mean all breaches of the representations and warranties within a particular Section in the aggregate) if such Losses exceed $250,000 (in addition to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied recovering the aggregate amount of Losses in accordance with excess of the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to Threshold Amount but in no event in an account designated in writing by such Buyer Indemnified Person.amount greater than the actual Losses); and
Appears in 1 contract
Indemnification by Seller. (a) From After the Closing Date, and after subject to the Closinglimitations set forth herein and except with respect to the matters that are the subject of Section 9.5, Seller shall agrees to indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) Group Member from and against any and all Losses losses, Liabilities, damages, costs and expenses, including costs of every kindinvestigation and defense and reasonable fees and expenses of lawyers, nature or description asserted againstexperts and other professionals (collectively, or sustained“Indemnifiable Damages”), incurred, suffered or accrued directly or indirectly by, incurred by such Buyer Indemnified Person that arise out of, relate to Group Member in connection with or result from or as a consequence of any of the following:
arising from: (i) any breach of any warranty or the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunderby or on behalf of Seller pursuant hereto, (ii) the IDS Transaction, (iii) any breach by Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement, (iv) the Excluded Liabilities, or (v) any noncompliance with any bulk sales Laws or fraudulent transfer Laws in respect of the transactions contemplated hereby. Notwithstanding the foregoing, Seller shall not be required to indemnify and hold harmless Buyer Group Members in respect of any claim under clause (i) of this Section 9.1 (a) (and that does not involve fraud or willful breach by Seller) or pursuant to a breach of the covenant set forth in Section 5.3(b)(xix), (A) unless and until Indemnifiable Damages in an aggregate amount greater than ten million dollars ($10,000,000) (the “Deductible”) have been incurred, paid or accrued, in which case the applicable Buyer Group Member(s) may make claims for indemnification for only Indemnifiable Damages that exceed the Deductible or (B) for any individual claim for which Indemnifiable Damages do not exceed fifteen thousand dollars ($15,000) (the “De Minimis Amount”), which shall not be applied against the Deductible (if a claim exceeds the De Minimis Amount, the entire amount of such claim is applied against the Deductible); provided, however, that the De Minimis Amount limitation shall be applied collectively to repetitive or multiple claims from the same source; and provided, further, that the aggregate amount required to be paid by Seller pursuant to Section 9.1(a)(i) or pursuant to a breach of the covenant set forth in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller Section 5.3(b)(xix) shall not be obligated exceed one hundred million dollars (under this Section 7.2(a)(i$100,000,000) (the “Maximum Amount”). Notwithstanding the foregoing, the Deductible and the Maximum Amount shall not apply to a claim to recover Indemnifiable Damages arising out of any breach of any warranty or the inaccuracy of any representation contained in Sections 3.5, 3.8, 3.12(a), 3.13, 3.14(b)(i) and 3.14(c) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action covenant set forth in Section 5.3(b)(xix) with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionsuch representations.
(b) Subject The period for making claims under Section 9.1(a)(i) and Section 5.3(b)(xix) shall terminate eighteen (18) months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 9.1(a)(i) or Section 5.3(b)(xix) thereafter), except that the indemnification by Seller shall continue as to (i) the representations and warranties of Seller set forth in Sections 3.5, 3.14(b)(i) and 3.14(c), until thirty (30) days after the expiration of the relevant statutory period of limitations applicable to the other terms underlying claim, giving effect to any waiver, mitigation or extension thereof, (ii) the representations and conditions warranties of this Article VIISeller set forth in Sections 3.12(a), until seven (7) years after the Closing Date, (iii) the representation and warranty of Seller set forth in Section 3.13, indefinitely, (iv) the covenant set forth in Section 5.3(b)(xix), until the expiration of the period to bring claims with respect to the relevant representation and warranty, and (v) any Losses that a claims asserted by Buyer Indemnified Person is entitled prior to recover pursuant to Section 7.2(a)(ithe expiration of such eighteen (18) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personmonth period.
Appears in 1 contract
Samples: Asset Purchase Agreement (Boeing Co)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend indemnify and hold harmless BuyerBuyer and its Affiliates, and the directors, officers, employees and other agents and representatives of Buyer and its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses liabilities, judgments, claims, settlements, losses, damages, fees, Liens, Taxes, penalties, obligations and expenses (including reasonable attorney’s fees and expenses and costs and expenses of every kindinvestigation) (collectively, nature “Losses”) incurred or description asserted againstsuffered, or sustained, incurred, suffered or accrued directly or indirectly byindirectly, by any such Buyer Indemnified Person that arise out ofarising from, relate to by reason of or result from or as a consequence of any of the followingin connection with:
(ia) the any breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit certificate, instrument or certificate other document delivered hereunder; provided, however, by Seller hereunder or in connection with the event consummation of the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) transactions contemplated hereby or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, thereby;
(b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, breach of any agreementcovenant, obligation or covenant of agreement made by Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vic) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws relating to Tax applicable to the import transactions contemplated by this Agreement; and
(d) any inaccuracy, non-fulfillment or export breach by Communications of its representations, warranties, covenants, agreements or other obligations under the Communications Purchase Agreement; provided, however, that Seller shall have no obligation pursuant to this Section 8.1 with respect to Losses arising from a breach of representations and warranties until the aggregate amount of such Losses exceeds $25,000, and then only for Losses in excess of such amount. Seller acknowledges that Buyer is relying upon the representations and warranties of Seller hereunder in purchasing shares of stock of the Acquired Software in the United States, Canada and the European Union.
(b) Subject Company from Communications pursuant to the other terms Communications Purchase Agreement, and conditions Seller further acknowledges that a Loss suffered by Buyer by reason of such reliance constitutes a “Loss” for purposes of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person8.1.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; , provided, howeverthat for purposes hereof, in such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to “materiality” (including the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(iword “material”) or otherwise) to indemnify the Buyer Indemnified Persons any similar limitations or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellerqualifications;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;; and
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, including any Taxes payable under any “bulk sales law” or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionother similar Laws.
(b) Subject to the other terms and conditions of this Article VII, including the Cap and Basket, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing from the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3Escrow Amount, in accordance with the terms of the Escrow Agreement. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From and after the ClosingSubject to Section 8.1, Seller shall indemnify, defend indemnify and hold harmless BuyerBuyer and its employees, its Affiliates officers, directors and their respective successors and assigns and agents (collectively, the respective Representatives of each of the foregoing (the “"Buyer Indemnified Persons”Parties") harmless from and against against, and agree promptly to defend any Buyer Indemnified Party from and reimburse any Buyer Indemnified Party for, any and all Losses of every kind, nature which any Buyer Indemnified Party may at any time suffer or description asserted againstincur, or sustainedbecome subject to, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence result of or in connection with: (i) any breach or inaccuracy as of the date of this Agreement or the Closing Date of any of the following:
representations and warranties made by Seller in or pursuant to this Agreement, or in any instrument or certificate delivered by Seller at the Closing in accordance herewith (i) it being understood and agreed that, notwithstanding anything to the contrary contained in this Agreement, to determine if there had been an inaccuracy or breach or inaccuracy of any a representation or warranty of Seller contained and the Losses arising from such inaccuracy or breach, such representation and warranty shall be read as if it were not qualified by materiality, including, without limitation, qualifications indicating accuracy in this Agreementall material respects, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer accuracy except to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would inaccuracy will not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
a Material Adverse Effect); (ii) the breach or non-fulfillment ofany failure by Seller to carry out, or non-compliance withperform, any agreement, obligation or covenant of Seller or satisfy and discharge any of its Affiliates contained in covenants, agreements, undertakings, liabilities or obligations under this Agreement or in under any Related of the Transaction Documents delivered by Seller pursuant to this Agreement;
; (iii) any Excluded Liability;
the Non-Assumed Liabilities (iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations underother than for Environmental Losses except Environmental Losses under Sections 2.4(b)(i), (a) the Existing License Agreement prior to the Closing or vii), and (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.xi));
Appears in 1 contract
Samples: Asset Purchase Agreement (Olin Corp)
Indemnification by Seller. (a) From and after the ClosingSubject to Section 8.1 hereof, Seller shall indemnify, defend indemnify and hold harmless BuyerBuyer and its employees, its Affiliates officers, directors and their respective successors and assigns and agents (collectively, the respective Representatives of each of the foregoing (the “"Buyer Indemnified Persons”Parties") harmless from and against against, and agree promptly to defend any Buyer Indemnified Party from and reimburse any Buyer Indemnified Party for, any and all Losses of every kind, nature which any Buyer Indemnified Party may at any time suffer or description asserted againstincur, or sustainedbecome subject to, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence result of any of the followingor in connection with:
(i) the any breach or inaccuracy as of the date of this Agreement or the Closing Date of any representation of the representations, warranties or warranty of covenants made by the Company, the LLC, or Seller in or pursuant to this Agreement, or in any instrument or certificate delivered by the Company, the LLC, or Seller at the Closing in accordance herewith (it being understood and agreed that, notwithstanding anything to the contrary contained in this Agreement, any Related Agreement to determine if there had been an inaccuracy or any exhibit breach of a representation, warranty or certificate delivered hereundercovenant of the Company, the LLC, or Seller and the Losses arising from such inaccuracy or breach, such representation, warranty or covenant shall be read as if it were not qualified by materiality, including, without limitation, qualifications indicating accuracy in all material respects, or accuracy except to the extent the inaccuracy will not have a Material Adverse Effect); provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled that Seller and Clarx xxxll have no liability for Taxes relating to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer taxable periods of any Pre-the Company commencing on or after the Closing Product with any other product or serviceDate, including, without limitation, the Company's "C short year" (within the meaning of Section 1362(e)(1)(B) of the Code and the corresponding provisions of state and local law), (b) taxable periods of the adaptation or modification by Buyer LLC commencing after the Closing Date, including without limitation, the taxable period of any Pre-the LLC beginning on the day following the Closing Product where infringement would not have occurred but for such adaptation or modification by BuyerDate, and (c) further in the misuse case of any Pre-the LLC, Taxes attributable to operations of the LLC on the Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided Date by Buyer to Sellerfollowing the Closing;
(ii) any failure by the breach or non-fulfillment ofCompany, the LLC, or non-compliance withSeller to carry out, any agreementperform, obligation or covenant of Seller or satisfy and discharge any of its Affiliates contained in or his covenants, agreements, undertakings, liabilities or obligations under this Agreement or in under any Related of the other Transaction Documents delivered by the Company, the LLC, or Seller pursuant to this Agreement;; and
(iii) any Excluded Liability;
(iv) failure by the ownershipCompany, possession the LLC or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates Date to comply with the WARN Act with respect to any Laws applicable to employee of either the import Company or export of the Acquired Software in the United States, Canada and the European UnionLLC.
(b) Subject Notwithstanding any other provision herein to the other terms contrary, (i) Seller shall not be required to indemnify and conditions of this Article VII, hold harmless any Losses that a Buyer Indemnified Person is entitled to recover Party pursuant to Section 7.2(a)(i8.2(a)(i), unless the applicable Buyer Indemnified Party has asserted a claim with respect to such matters within the applicable survival period set forth in Section 8.1 hereof and (ii) Seller shall not be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller required, pursuant to Section 2.38.2(a)(i), to indemnify and hold harmless any Buyer Indemnified Party until the aggregate amount of Buyer Indemnified Parties' Losses under Section 8.2(a)(i) exceeds $25,000 (the "Basket Amount"), after which Seller shall be obligated for all Losses of Buyer Indemnified Parties in excess of the Basket Amount up to an aggregate amount of $3,000,000; provided, however, that such $3,000,000 limitation shall not be applicable to Losses of Buyer Indemnified Parties resulting from intentional or fraudulent misrepresentations of the Company, the LLC, Seller or Clarx.
(c) Further notwithstanding any other provision herein to the contrary, Buyer shall be entitled to offset any Losses of Buyer Indemnified Parties under Section 8.2(a)(i) against amounts owing and unpaid to Seller under this Agreement without regard to the $3,000,000 limitation contained in Section 8.2(b).
(d) Notwithstanding anything to the contrary contained herein, for purposes of computing any liability of Seller for indemnification under this Article 8, the parties shall first submit any prospective claims for indemnification to insurers under any applicable insurance policies (including title insurance policies) of the Company and/or Buyer, and any Losses suffered by Buyer shall be offset by any insurance recovery to the extent received under (i) any policies of the Company owned (or paid for) at or prior to Closing, and (ii) any pre-Closing or post-Closing policies of Buyer or any policies of the Company procured after the Closing, but (in the case of any policies of the type specified in this clause (ii)) net of (x) an allocable portion of the premiums paid on such policies and (y) any increase in premiums that Buyer or the Company may incur as a result of the claim; provided, however, that Buyer need not submit any claim under any of its policies or any post-Closing policies of the Company if in the reasonable judgment of Buyer's Chief Executive Officer such claim would result in a termination of such policies. Any Losses Buyer shall, in connection with any claim for indemnity, (i) first seek recovery against any insurance policies as provided above, subject to the limitations set forth above; (ii) second offset the claim against the Deferred Purchase Price; and (iii) seek recourse against Seller personally; provided, however, that become payable if pursuant to a final arbitration award or judgment, Seller becomes liable to Buyer Indemnified Person pursuant for an indemnifiable claim, and insurance proceeds are insufficient to satisfy such claim, then Buyer may immediately pursue the balance against Seller personally, subject to any limitations set forth in paragraph (b) of this Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person8.2.
Appears in 1 contract
Samples: Stock and Membership Interest Purchase Agreement (Saxton Inc)
Indemnification by Seller. (a) From and after the ClosingClosing Date, Seller shall indemnifydefend, defend indemnify and hold harmless Buyer, Purchaser and its Affiliates affiliates and each of their respective officers, directors, employees, stockholders, agents, consultants, affiliates and representatives, and successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kindloss, nature liability, damage, claim, obligation, deficiency, cost or description asserted againstexpense (including reasonable legal fees and expenses), but excluding consequential damages, lost profits or sustainedpunitive damages (individually a "Loss" and collectively "Losses"), incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or Purchaser actually incurs as a consequence result of any of the following:
(i) the any breach or inaccuracy of any representation or warranty of Seller that survives the Closing for the survival periods set forth in Section 16.1; (ii) any Retained Liabilities; (iii) any breach of any covenant contained in this Agreement; (iv) the failure to comply with statutory provisions relating to bulk sales and transfers, if applicable; and (v) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or compatible other persons retained or employed by it in connection with the transactions contemplated by this Agreement. The materiality standards contained in the various representations and warranties in Article VIII hereof shall not be interpreted or otherwise used by Seller to negate or eliminate the Indemnification Deductible.
(i) The amount of any Losses incurred by Purchaser shall be reduced as follows:
(a) by the net amount Purchaser recovers (after deducting all attorneys' fees, expenses and other costs of recovery) or could have recovered had the claim been timely filed, from any insurer or other third party liable for such Losses;
(b) where and to the extent the issue giving rise to any such Losses was provided or reserved for in the Closing Statement of Net Assets or gave rise to the payment to Purchaser of a post- closing adjustment amount as described in Section 4.4; and
(c) by an amount calculated by applying the applicable corporate tax rate to the portion of any such Losses which can be treated as a deductible expense by Purchaser to the extent such deduction actually reduces Purchaser's Tax liability.; and
(ii) the amount of any Losses incurred by Purchaser shall be increased to take into account any net Tax cost incurred by Purchaser arising from the receipt of any indemnity payments hereunder (grossed up for such increase).
(c) Purchaser shall be entitled to indemnification under this Section 16.2 only (x) to the extent that the aggregate amount of such Losses (adjusted as provided in paragraph (b) of this Section 16.2 exceeds a deductible amount of U.S. $1,000,000 (the "Indemnification Deductible"), in which event the Losses shall be the amount, if any, which exceeds the Indemnification Deductible; and (y) to the extent that each and any specific, individual Loss which counts towards the Indemnification Deductible exceeds U.S. $10,000 (the "Deminimus Amount"), provided the aggregate amount payable in respect of indemnification under this Section 16.2 shall not exceed a cap of U.S. $100,000,000. Seller acknowledges and agrees that none of the Indemnification Deductible, the Deminimus Amount or the cap shall apply in respect of (i) the Surviving Representations (except with respect to the representations and warranties contained in Section 8.13 regarding Environmental Matters towards which the Indemnification Deductible, the Deminimus Amount and the cap shall apply) (ii) Retained Liabilities, (iii) Pre-Closing Taxes, and (iv) the Covenants contained in Section 13.6.
(d) The indemnity provided in this Section 16.2 shall be the sole and exclusive remedy of Purchaser after the Closing Date with respect to any and all claims relating to the subject matter of this Agreement. In furtherance of the foregoing, Purchaser hereby waives, from and after the Closing, to the fullest extent permitted under applicable law, any Related and all rights, claims and causes of action it may have against Seller relating to the subject matter of this Agreement arising under or based upon any exhibit federal, state, local or certificate delivered hereunderforeign statute law, ordinance, rule or regulation or otherwise; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification that Purchaser does not hereby waive any tort claims it may have against Sellers for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications intentional and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionfraudulent misrepresentation.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cincinnati Milacron Inc /De/)
Indemnification by Seller. (a) From and after the Closing, The Seller shall indemnify, defend indemnify and hold harmless Buyerthe Purchaser, its Affiliates the Companies, and their respective successors directors, officers, employees, agents, attorneys and assigns shareholders (excluding the Seller and the respective Representatives of each of the foregoing his affiliates) (collectively, the “Buyer Indemnified PersonsPurchaser Group”) from and against in respect of any and all Losses of every kindClaims incurred by the Purchaser Group, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any in connection with each and all of the following:
(ia) the Any breach or inaccuracy of any representation or warranty of made by the Seller contained in this Agreement, any Related Agreement as of the date of this Agreement or any exhibit or certificate delivered hereunderas of the Closing Date; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, and
(b) the adaptation or modification by Buyer The breach of any Pre-Closing Product where infringement would not have occurred but for such adaptation covenant, agreement or modification by Buyer, (c) obligation of the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or any other instrument delivered at the Closing, including, the agreement and covenants of the Seller set forth in any Related Section 5.8 of this Agreement;.
(iiic) Any liability (including any Excluded Liability;
(ivTax liability) incurred in connection with the ownership, possession or operation of the Acquired Assets by Seller or failure to administer any Action Company Plans in accordance with respect applicable Law prior to or arising from on the Closing Date, and any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or liability arising in connection with the transfer of Company Plan described on Schedule 10.1(c) (including, but not limited to, any liability or Claim arising in connection with the Acquired Assets termination thereof pursuant to Buyer;Section 7.9(f) or otherwise, including the Termination Obligation).
(vid) Any liability arising in connection with the Pre-Closing Restructuring (including but not limited to any liability arising from a failure to obtain any required Consent and any Tax liability).
(e) Any liability arising from the failure of Seller the Companies to comply with, hold or perform obtain following Closing any of its obligations under, (a) License required under applicable Law for the Existing License Agreement prior Companies to the Closing or (b) the Surviving Existing License Agreement Provisions conduct following the Closing as set forth hereinthe business conducted by the Heath Group Entities prior to Closing; or
(viiprovided that, without limiting any other rights under this Section 10.1, this specific indemnity under 10.1(e) shall no longer apply in respect of an individual License following the failure first issuance of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionsuch License following Closing.
(bf) Subject to the other terms and conditions Any Pre-Closing Operational Liability.
(g) Any Operating Cash Shortfall.
(h) Any liabilities of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonJLH.
Appears in 1 contract
Samples: Purchase Agreement (Hallmark Financial Services Inc)
Indemnification by Seller. (a) From and after the ClosingSubject to Section 10.01 hereof, Seller shall indemnify, defend indemnify and hold harmless BuyerPurchaser, its Affiliates and their respective successors employees, officers and assigns and directors (collectively, the respective Representatives of each of the foregoing (the “Buyer "Purchaser Indemnified Persons”Parties") harmless from and against against, and agrees to promptly 24 30 defend any Purchaser Indemnified Party from and reimburse any Purchaser Indemnified Party for, any and all Losses of every kind, nature which such Purchaser Indemnified Party may at any time suffer or description asserted againstincur, or sustainedbecome subject to, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the followingresult or in connection with:
(i) the breach inaccuracy as of the date of this Agreement or inaccuracy the Closing Date of any representation representations and warranties made by Seller in or warranty of Seller contained in pursuant to this Agreement, any Related Agreement or in any exhibit instrument or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellerat the Closing in accordance herewith;
(ii) the breach or non-fulfillment ofany failure by Seller to carry out, or non-compliance withperform, any agreement, obligation or covenant of Seller or satisfy and discharge any of its Affiliates contained in covenants, agreements, undertakings, liabilities or obligations under this Agreement or in under any Related of the documents and/or other instruments delivered by Seller pursuant to this Agreement;
(iii) any Excluded Liability;liabilities not expressly assumed by Purchaser pursuant to Section 2.02(b) hereof, or
(iv) the ownership, possession events or operation of the Acquired Assets by Seller circumstances occurring on or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;Closing Date, arising out of, relating to or resulting from the business of Seller, or relating to or resulting from the Assets or the business or operations of the Station prior to the Closing Date; or
(v) any Taxes of any kind relating Any Losses incurred by a Purchaser Indemnified Party arising from Seller's election to or arising in connection with effect the transfer acquisition and disposition of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply a like-kind-exchange in accordance with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionSection 10.05 hereof.
(b) Subject Notwithstanding any other provision to the other terms contrary, Seller shall not be required to indemnify and conditions of this Article VII, hold harmless any Losses that a Buyer Purchaser Indemnified Person is entitled to recover Party pursuant to Section 7.2(a)(i9.02(a) (x) unless Purchaser has asserted a claim with respect to such matters within the applicable survival period set forth in Section 10.01, and (y) until the aggregate amount of Purchaser Indemnified Parties' Losses exceeds an amount equal to Three Hundred Five Thousand Dollars ($305,000) after which Seller shall be obligated for all Losses of Purchaser Indemnified Parties in excess of such amount; provided, however, that the cumulative indemnification obligation of Seller under this Article X shall in no event exceed Twelve Million Dollars ($12,000,000).
(c) For purposes of calculating the amount of Losses subject to indemnification pursuant to Sections 9.01 and 9.02, it is understood and agreed between the parties hereto that to determine if there has been an inaccuracy or breach of a representation or warranty (i) which is qualified as to materiality by the party making such representation or warranty or contains an exception for matters that would not have a Material Adverse Effect, then such representation or warranty shall be read as if it were not so qualified or contained no such exception, or (ii) which is qualified as to knowledge by the Seller (except those representations and warranties made (x) in Sections 3.05, 3.07 and 3.15 as to threatened litigation or proceedings, and (y) those made in Section 3.16) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are read as if it were not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personso qualified.
Appears in 1 contract
Samples: Asset Purchase Agreement (Chancellor Media Corp of Los Angeles)
Indemnification by Seller. (a) From and after the Closing, and subject to the other provisions of this Article VIII, Seller shall indemnify, defend and hold harmless Buyer, Acquiror and its Affiliates and their respective directors, officers, stockholders, partners, members, employees and agents and their heirs, successors and assigns and the respective Representatives of permitted assigns, each of the foregoing in their capacity as such (collectively, the “Buyer Acquiror Indemnified Persons”) from against, and against reimburse any and Acquiror Indemnified Person for, all Losses of every kind, nature that such Acquiror Indemnified Person may suffer or description asserted againstincur, or sustainedbecome subject to, incurred, suffered or accrued directly or indirectly byarising out of or resulting from, such Buyer Indemnified Person that arise out ofwhether in respect of Third Party Claims, relate to or result from or as a consequence of claims between any of the followingparties hereto, or otherwise:
(i) the breach or inaccuracy any failure of any representation or warranty of made by Seller contained in this AgreementAgreement (determined with respect to all such representations and warranties other than Excluded Representations without giving effect to any materiality (e.g., any Related Agreement “material”, “materiality” or any exhibit or certificate delivered hereunder; provided“Material Adverse Effect”)), however, in the event the Buyer Indemnified Persons would otherwise to be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications true and directions provided by Buyer to Sellercorrect;
(ii) the any breach or non-fulfillment offailure by Seller to perform any of its covenants or agreements made in this Agreement, or non-compliance withany other instrument, any agreement, obligation certificate or covenant of document delivered by Seller or any of its Affiliates contained in pursuant to this Agreement or in any Related Agreement;
(iii) any Excluded LiabilityLiabilities of the type described in clauses (i) and (ii) of the definition of Excluded Liabilities or the failure of Seller and its Affiliates (other than the Company) to pay, perform and discharge when due the same;
(iv) the ownership(A) any Third Party Claims relating to any Excluded Liabilities not covered in Section 8.01(a)(iii) and (B) any Special Non-Third Party Liability Losses, possession or operation but in each case, excluding any Loan Liabilities (it being understood that any claims in respect of the Acquired Assets Loan Liabilities pursuant to this Section 8.01 will be governed solely and exclusively by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;Sections 8.01(a)(i) and ((v); and
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionLoan Liabilities Losses.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (EverBank Financial Corp)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend indemnify Purchaser against and hold it harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses liabilities, loss, claims, counterclaims, cross-claims, set-offs, recoupments, damages and expenses whatsoever, including, without limitation, all attorneys' fees and other costs and expenses of every kind, nature litigation (hereinafter in this Section 6.1 "Loss") that Purchaser may at an time suffer or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence incur by reason of any of the following:
(i) the breach Seller's failure to pay, discharge or inaccuracy of perform any representation and all liabilities and obligations incurred or warranty arising from actions of Seller contained prior to the Closing Date pertaining in any way or affecting the Purchased Assets that are not expressly assumed by Purchaser under this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach Purchaser's defense of any claim, suit or non-fulfillment of, proceeding made or non-compliance with, commenced against it arising out of any agreement, liability or obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
that is not expressly assumed by purchaser hereunder; (iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply withwith the provisions of any tax statute relating to notice of the sale of assets hereunder and payment of taxes due upon such sale, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates Purchaser to comply with any Laws applicable to the import or export bulk transfer provisions of the Acquired Software Uniform Commercial Code of New Jersey; (iv) any unpaid taxes due and owing by Seller; and (v) any material breaches of or inaccuracies in the United Statesagreements, Canada covenants, representations and the European Unionwarranties made by Seller in or pursuant to this Agreement.
(b) Subject Without limitation of the foregoing undertakings by Seller in this Article VI, Seller shall further indemnify Purchaser against and hold it harmless from any and all loss that purchaser may at any time suffer or incur by reason of Seller's failure for whatever reason to pay, discharge or perform any and all judgments, liabilities or obligations that may arise out of or relate in any manner to the other terms pending proceedings and conditions actions against Seller, if any, and all new proceedings or actions based upon, or in any way arising out of this Article VII, or related to any Losses that a Buyer Indemnified Person is entitled of the facts or claims alleged in any of said pending proceedings and actions and existing at any time prior to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonClosing Date.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnifyAon and Seller, defend jointly and severally, agree to indemnify and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) Group Member from and against any and all Losses losses, costs, settlement payments, awards, judgments, fines, penalties, damages, deficiencies or other charges, claims, liabilities, lawsuits, demands and expenses, including reasonable fees and disbursements of every kindcounsel (whether or not arising out of third-party claims), nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result and all amounts arising from or as a consequence relating to investigation, defense or settlement of any of the followingforegoing (collectively, “Damages”) incurred by such Buyer Group Member in connection with, arising out of or resulting from:
(i) the any breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, by or on behalf of Seller shall not be obligated (under this Section 7.2(a)(i) hereunder at or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer prior to the extent of such Losses that arise out ofClosing (without giving effect to any materiality, relate to Material Adverse Effect or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellersimilar qualification contained therein);
(ii) the any breach by Aon or non-fulfillment Seller of, or non-compliance withfailure by Aon or Seller to perform, any agreement, obligation or covenant of Seller or any of its Affiliates covenants or obligations contained in this Agreement or in any Related Agreementthat are required to be performed prior to the Closing Date;
(iii) any Excluded Liabilitybreach by Aon or Seller of, or failure by Aon or Seller to perform, any of its covenants or obligations contained in this Agreement that are required to be performed on or following the Closing Date, including Sections 8.1 and 8.2;
(iv) the ownership, possession or operation of Specified Lawsuit and the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closingother matters listed on Schedule 5.12;
(v) any Taxes the charging or collecting from the Clients of any kind relating Broker Fees by the Company, APRM (solely with respect to the Business) or arising in connection with the transfer Subsidiaries prior to the Closing Date or from the eligibility of the Acquired Assets Company, APRM (solely with respect to Buyerthe Business) or the Subsidiaries to collect Broker Fees from Clients prior to the Closing Date;
(vi) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the failure of Company or any Seller to comply with, (or perform any of its obligations under, (aPerson acting on their behalf) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; orin connection with any transactions contemplated by this Agreement;
(vii) the failure of Seller Undisclosed and Retained Liabilities;
(viii) any Damages arising from or any of its Affiliates to comply with any Laws applicable related to the import or export operation of ASPN prior to the Closing Date; or
(ix) in connection with the assignment and assumption of any lease with respect to any Change of Control Consent relating to Leased Real Property, (A) any consent fee, (B) any increase in rent relating to such existing lease for the remainder of the Acquired Software term of such lease, (C) any reasonable increase in rent by any new lease for comparable space in excess of the current rent contemplated under the current lease for the remainder of the term of the currently existing lease, and (D) any reasonable moving costs incurred by Buyer, in the United Statescase of (C) and (D), Canada in the event Buyer is evicted from any properties leased pursuant to such lease as a result of a failure by Sellers to obtain any consent required to assign such lease to Buyer; provided, however, that Aon and Seller shall be required to indemnify and hold harmless under Section 11.1(a)(i), 11.1(a)(ii) and 11.1(a)(vii) with respect to Damages incurred by Buyer Group Members only to the European Union.extent that:
(bx) Subject to the other terms and conditions aggregate amount of such Damages resulting from any single claim or aggregated claims arising out of the same facts, events or circumstances (provided, that individual claims based upon the same act, event, omission or set of facts shall be deemed a single individual claim for purposes of this Article VII, any Losses Section 11.1(a)(i)) exceeds $10,000 (the “Per Claim Deductible”) (it being understood that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) such amount shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to a deductible for which Aon and Seller pursuant to shall bear no indemnification responsibility under Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a11.1(a)(i), 11.1(a)(ii) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.and 11.1(a)(vii) above);
Appears in 1 contract
Indemnification by Seller. (a) From Subject to the provisions of this Article VIII, from and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, Purchaser and its Affiliates and their respective equityholders, partners, members, officers, directors, managers, employees, agents and representatives and successors and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Purchaser Indemnified PersonsParties”) ), from and against any and all Losses incurred or suffered by any of every kindPurchaser Indemnified Parties to the extent, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly indirectly, caused by, such Buyer Indemnified Person that arise resulting from or arising out of, relate to or result from or as a consequence of any of the following:
(i) any breach by Seller of any of its representations or warranties contained in Article III or the breach certificate delivered by Seller pursuant to Section 2.5(b)(viii) without giving effect to any “Material Adverse Effect,” “material,” “in all material respects” or inaccuracy other similar materiality qualifications (it being understood that for purposes of this Section 8.2(a)(i) such representations and warranties shall be deemed to have been made both as of the date of this Agreement and as of the Closing Date (except that any representation or warranty that speaks as of Seller contained in the date of this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise other date shall only be entitled deemed to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent have been made as of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellerdate));
(ii) the any breach of any covenant or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant agreement of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;; or
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionLiabilities.
(b) Subject Notwithstanding anything in this Agreement to the contrary:
(i) Seller shall not be required to indemnify, defend or hold harmless any Purchaser Indemnified Party against any Losses pursuant to Section 8.2(a)(i) (i) for any individual Loss unless the amount with respect to such Loss (together with all other terms Losses arising from the same or similar set of facts, conditions or events) exceeds $150,000 (the “De Minimis Threshold”), and conditions (ii) until and unless the aggregate amount of all Purchaser Indemnified Parties’ Losses under Section 8.2(a)(i) that exceed the De Minimis Threshold for which Purchaser has delivered a notice pursuant to Section 8.4 exceeds $25,000,000 (the “Deductible”), after which Seller shall be obligated for all Purchaser Indemnified Parties’ Losses under Section 8.2(a)(i) in excess of the Deductible, subject to the provisions of this Article VIIVIII; provided, however, that Losses resulting from any Losses that a Buyer Indemnified Person is entitled breach of Seller Fundamental Representations or Section 3.22 shall not be subject to recover pursuant to the Deductible;
(ii) the maximum indemnification obligation of Seller under Section 7.2(a)(i8.2(a)(i) shall in no event exceed $251,250,000 (the “Cap”); provided, however, that Losses resulting from any breach of Seller Fundamental Representations or the representations and warranties set forth in Section 3.22 shall not be satisfied by reducing subject to the Holdback Reserve Amount that would otherwise be payable Cap; and
(iii) notwithstanding anything to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied the contrary contained in accordance with this Agreement, Seller’s aggregate indemnification obligations under this Agreement, other than in respect of the preceding sentence Excluded Liabilities, shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personno event exceed the Purchase Price.
Appears in 1 contract
Samples: Asset Purchase Agreement (CF Industries Holdings, Inc.)
Indemnification by Seller. (a) From and after the ClosingClosing and subject to the terms hereof, Seller shall indemnifyagrees to defend, defend indemnify and hold harmless BuyerPurchaser and its shareholders, its directors, officers, Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Purchaser Indemnified PersonsParties”) harmless from and against any claim, liability, expense, loss or other damage (including reasonable fees and all Losses expenses relating to attorneys’ and the enforcement of every kindthe indemnification rights hereunder) (collectively, nature or description “Losses”) asserted against, imposed upon or sustainedincurred by any Purchaser Indemnified Party by reason of, incurred, suffered resulting from or accrued directly or indirectly by, such Buyer Indemnified Person that arise arising out of, relate to or result from or as a consequence of any of the following:
(ia) the any breach or inaccuracy by Seller of any representation or warranty of made by Seller contained in this Agreement, any Related Agreement or any exhibit or certificate other document executed and delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled by Seller to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer Purchaser at Closing with respect to the extent of such Losses that arise out of, relate to or result from (a) any combination transactions contemplated by Buyer of any Pre-Closing Product with any other product or service, this Agreement;
(b) the adaptation any breach or modification non-performance by Buyer Seller of any Pre-covenant or agreement made by Seller in this Agreement or any other document executed and delivered by Seller to Purchaser at Closing Product where infringement would not have occurred but for such adaptation or modification with respect to the transactions contemplated by Buyer, this Agreement;
(c) the misuse any imposition (including, but not limited to, imposition by operation of any Pre-Closing Product bulk sales or other Law) or attempted imposition by a third party upon any of the use Purchaser Indemnified Parties of any Pre-Closing Product in Liability of Seller which is not an application for which it was not designed by Seller or Assumed Liability;
(d) Seller’s compliance with specifications and directions provided any brokerage or finders’ fees arising out of the transaction contemplated hereby owing to any party engaged by Buyer to Seller;
(iie) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant obligations of Seller or any of its Affiliates contained in this Agreement or in any Related Agreementunder Section 5.13 hereof with respect to the Phase I Remediation;
(iiif) any Excluded Liability;
(iv) the ownershipLiability under any applicable federal, possession provincial or operation of the Acquired Assets by Seller or any Action with respect to or arising local Law resulting from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer employment by Seller of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement Employees prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover Date except for obligations assumed by Purchaser hereunder including pursuant to Section 7.2(a)(i2.2(d) shall be satisfied and Sections 5.2 through 5.6;
(g) any obligations of Seller under Sections 5.2 through 5.6 hereof;
(h) any Environmental Liability due to the condition of the Transferred Real Property on the Closing Date regardless of whether the condition was disclosed in this Agreement or any schedule hereto; and
(i) any Liability resulting from Seller’s breach of that certain Offre de contribution financiere non remboursable between Investissement Quebec and Rxxxx Xxxx Multifoods Inc. dated May 1, 2003; provided that such breach (i) is not caused by reducing or related to Purchaser’s communications to Employees prior to the Holdback Reserve Amount that would otherwise be payable Closing, and (ii) relates to actions of Seller pursuant prior to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonClosing.
Appears in 1 contract
Indemnification by Seller. (a) From and after the ClosingSubject to Section 8.4, Seller shall indemnify, defend and hold harmless Buyeragrees to indemnify Purchaser, its Affiliates and their respective its officers, directors, employees, successors and permitted assigns and the respective Representatives of each of the foregoing (the “Buyer Purchaser Indemnified PersonsParties”) from after the Closing against and against in respect of, and agrees to hold the Purchaser Indemnified Parties harmless from, any and all Losses imposed on, incurred by or suffered by any Purchaser Indemnified Party arising out of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result resulting from or as a consequence of any of the following:
(ia) the any breach of or any inaccuracy of in any representation or warranty of made by Seller contained in this Agreement, Agreement other than any Related Agreement breach of or any exhibit or certificate delivered hereunderinaccuracy in an Excluded Representation; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, that Seller shall not be obligated (have any liability under this Section 7.2(a)(i8.2(a) for any breach of or otherwise) inaccuracy in any representation or warranty unless a notice of the Purchaser Indemnified Party’s claim is given to indemnify Seller at any time in the Buyer future promptly following discovery of such breach; provided, that the failure of the Purchaser Indemnified Persons or otherwise be liable Party to Buyer give such prompt written notice shall not relieve Seller of its obligations under this Article 8 except to the extent of such Losses (if any) that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, Seller has been prejudiced thereby;
(b) the adaptation any breach of or modification by Buyer of any Pre-Closing Product where infringement would inaccuracy in any Excluded Representation; provided, that Seller shall not have occurred but any liability under this Section 8.2(b) for such adaptation any breach of or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or inaccuracy in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession representation or operation warranty unless a notice of the Acquired Assets by Purchaser Indemnified Party’s claim is given to Seller or at any Action with respect to or arising from any Acquired Intellectual Property deliveredtime in the future promptly following discovery of such breach; provided, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) that the failure of the Purchaser Indemnified Party to give such prompt written notice shall not relieve Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior under this Article 8 except to the Closing or extent (bif any) the Surviving Existing License Agreement Provisions following the Closing as set forth hereinthat Seller has been prejudiced thereby; or
(viic) the any breach of or failure by (excluding any breach or inaccuracy covered by Sections 8.2(a) and 8.2(b) above) Seller to perform any agreement, covenant, obligation or undertaking of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software set out in the United States, Canada and the European Unionthis Agreement.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Residential Capital, LLC)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, Seller shall indemnify and defend each of Buyer, Buyer’s Affiliates, and each of their respective Representatives (collectively, the “Buyer Indemnitees”) from and 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, any of the Buyer Indemnitees or that any of the Buyer Indemnitees may incur as a Buyer Indemnified Person is entitled result of, based upon, arising out of, with respect to recover or by reason of any one or more of the following: (i) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement, the Ancillary Documents or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement; (ii) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement, the Ancillary Documents or any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement; (iii) any Excluded Asset or any Excluded Liability; (iv) any claim or Liability asserted by a Person who is not a party to this Agreement (a “Third Party Claim”) based upon, resulting from or arising out of (a) the Facility, the Purchased Assets, the Assumed Liabilities, operations, properties, assets or obligations of Seller or any of Seller’s Affiliates conducted, existing or arising on or prior to the Closing Date, or (b) Section 7.2(a)(i7.02(iii), Section 7.02(v) or Section 7.02(vi) without regard to whether existing or arising on, prior to or after the Closing Date; (v) the failure to obtain consent from the counterparty or counterparties to an Assigned Contract as of the Closing Date; (vi) any orders, Actions, compliance reports or information requests, subpoenas or production requests, settlement agreements or conciliation agreements arising from the Facility or the Purchased Assets prior to the Closing or from facts in existence relating to the Facility or the Purchased Assets prior to the Closing, or (vii) any fraud, willful misconduct or criminal acts of (a) Seller, or (b) the Affiliates, Representatives and any other officers, directors, agents, independent contractors and employees of Seller. Losses payable by Seller to Buyer Indemnitees for an Indemnification Claim pursuant to this Section 7.02 shall be satisfied first from the Escrow Account, and then by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personproceeding directly against Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bellicum Pharmaceuticals, Inc)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend agrees to indemnify and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) Group Member from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, and Expenses incurred by such Buyer Indemnified Person that arise out of, relate to Group Member in connection with or result from or as a consequence of any of the followingarising from:
(i) any breach of any warranty or the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreementagreement or document required to be delivered by Seller hereunder or any certificate delivered by or on behalf of Seller pursuant hereto;
(ii) any breach by Seller of any of its covenants or agreements, or any failure of Seller to perform any of its obligations, in this Agreement or in any agreement or document required to be delivered by Seller hereunder after timely noticed;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply withpay, perform or discharge any Excluded Liability; and
(iv) any and all claims from or on behalf of any former, current or future (A) holder of capital stock of, or perform any other rights or interests in Seller or (B) creditor of its obligations underSeller, (a) the Existing License Agreement prior in either case, arising from or relating to the Closing or execution, delivery and performance of this Agreement and/or the transactions contemplated hereby; provided, however, that Seller shall not be required to indemnify and hold harmless under clause (bi) the Surviving Existing License Agreement Provisions following the Closing of this Section 9.1(a) with respect to Losses and Expenses incurred by Buyer Group Members (other than Losses and Expenses incurred as set forth herein; or
(vii) the failure a result of Seller or any of its Affiliates to comply with any Laws applicable to the import or export inaccuracies of the Acquired Software representations and warranties contained in Sections 5.1 (Organization and Authority), 5.4 (Title and Sufficiency) and 5.15 (Broker) (the United States“Seller Fundamental Representations), Canada as to which this proviso shall have no effect) unless the aggregate amount of such Losses and Expenses subject to indemnification by Seller exceeds $50,000.00, and once such amount is exceeded, Seller shall indemnify the European UnionBuyer Group Members only for the amount in excess of such amount; and provided further, however, that the aggregate amount that Seller shall be required to indemnify and hold harmless pursuant to Section 9.1(a) (other than the Seller Fundamental Representations which shall not exceed $4,000,000.00) shall not exceed $1,200,000.00.
(b) Subject The indemnifications provided for in Section 9.1(a) shall terminate on the date that is ninety (90) days following the Closing Date (and no claims shall be made by any Buyer Group Member under Section 9.1(a) thereafter, other than claims made under Section 5.18 (Intellectual Property) and Section 8.10 (License of Intellectual Property) which shall terminate on the date that is twelve months following the Closing Date, but only if any current director or officer of Seller has a beneficial ownership interest in Seller’s capital stock and, other than claims made under Section 8.2 (Non-Competition) which shall terminate on the date that is three years following the Closing Date, except that the indemnifications shall continue as to the other terms and conditions of this Article VII, any Losses that Loss or Expense arising under or related to a Buyer Indemnified Person is entitled to recover claim pursuant to Section 7.2(a)(i9.1(a) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to of which any Buyer Group Member has notified Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence requirements of Section 9.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 9.1(b), as to which the obligation of Seller shall be payable by continue until the liability of Seller upon demandshall have been determined pursuant to this Article IX, by wire transfer and Seller shall have reimbursed all Buyer Group Members for the full amount of immediately available funds to an account designated such Loss and Expense in writing by such Buyer Indemnified Personaccordance with this Article IX.
Appears in 1 contract
Indemnification by Seller. (a) From and after Subject to the Closinglimitations set forth herein, Seller shall indemnifyhereby agrees with respect to Investment Interests transferred by Seller, defend to defend, indemnify and hold harmless BuyerPurchaser and its affiliates, its Affiliates and their respective partners, members, officers, directors, employees, agents, successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified PersonsPurchaser Indemnitees”) from and against any and all Losses of every kindclaim, nature damage, liability, loss, cost or description asserted againstexpense (including reasonable attorneys’ fees) (collectively, “Losses”) caused by, resulting from, related to, or sustainedarising out of (i) any material failure by Seller to perform its covenants or obligations as set forth in this Agreement, incurred, suffered the Escrow Agreement or accrued directly in any other certificate or indirectly by, such Buyer Indemnified Person that arise out of, relate instrument delivered pursuant to this Agreement; (ii) any inaccuracy in or result from or as a consequence breach of any of the following:
(i) the breach representations or inaccuracy of any representation or warranty warranties of Seller contained in this Agreement, any Related Agreement or any exhibit document or certificate required to be delivered hereunderat a Closing by Seller pursuant to this Agreement; provided(iii) any taxes, howeverfees or other governmental charges attributable to the ownership or sale by Seller of any Investment Interest, including any Transfer Taxes; (iv) any claim by any Person with whom Seller has, directly or indirectly, dealt for any finder’s or broker’s fee or commission or similar payment in connection with the transactions contemplated by this Agreement; and (v) any and all actions, suits, litigations, arbitrations, proceedings, investigations, claims or liabilities brought by a Purchaser Indemnitee to enforce the provisions of this Section 9.2(a). For clarity, the parties hereby acknowledge and agree that following the Closing, any Losses to any Company caused by, resulting from, related to, or arising out of the foregoing clauses (i) through (iv) shall be considered Losses to Purchaser for purposes of this Article IX.
(b) Seller shall not be liable for any Loss or Losses pursuant to Section 9.2(a), (i) unless the claim for such Loss or Losses is brought within the Applicable Survival Period, and (ii) unless and until the aggregate amount of all Losses incurred by Purchaser exceeds two hundred fifty thousand dollars ($250,000) (the “Deductible”), and then only to the extent that the amount of such Losses exceeds the Deductible.
(c) Seller’s aggregate liability to all Purchaser Indemnitees under this Article IX shall in no event exceed the Buyer Indemnified Persons would otherwise be entitled Escrow Reserve; except for Seller’s liability to indemnification Purchaser Indemnitees under this Article IX for Lossesbreaches of Seller’s representations and warranties in Sections 3.4, 3.5, 3.12 and 4.3. Seller’s aggregate liability to all Purchaser Indemnitees under this Agreement shall in no event exceed the Purchase Price.
(d) In addition to the limitations set forth in Sections 9.2(b) and (c), Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons Purchaser Indemnitees with respect to (i) any covenant or otherwise be liable condition waived by Purchaser in writing on or prior to Buyer any Closing, or (ii) any indirect, special, incidental, consequential or punitive damages claimed by Purchaser resulting from Seller’s breach of any representation or warranty, covenant or agreement (except to the extent that Purchaser’s loss is indemnifiable hereunder and is in the form of such a liability of Purchaser or any Company to pay a third party special, incidental, consequential or punitive damages).
(e) In addition to the indemnification obligations of Seller set forth in Section 9.2(a), Seller shall indemnify the Purchaser Indemnitees against any Losses that arise caused by, resulting from, related to, or arising out ofof claims by current or former employees, relate to directors, officers or result from (a) any combination by Buyer shareholders of any Pre-Closing Product Company with any other product or service, respect to: (bi) the adaptation or modification by Buyer fairness to such Persons of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyerthe transactions contemplated hereby, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment ofviolation of such person’s rights under any Contract, or non-compliance with, any agreement, obligation or covenant of Seller Operative Document or any Charter Document of its Affiliates contained in this Agreement any Company as a result of the transactions contemplated hereby; or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession adequacy or operation sufficiency of the Acquired Assets payment received or to be received by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising such persons in connection with the transfer or as a result of the Acquired Assets to Buyer;
(vi) the failure transactions contemplated hereby. The indemnification obligations of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to this Section 2.3. Any Losses that become payable 9.2(e) shall not be subject to a Buyer Indemnified Person pursuant to the limitations set forth in Section 7.2(a9.2(d) that are not satisfied in accordance with and the preceding first sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonSection 9.2(c).
Appears in 1 contract
Indemnification by Seller. (ai) From Subject to this Article XI, from and after the Closing, Seller shall indemnify, defend indemnify and hold harmless Buyer, Buyer and its Affiliates and their respective owners, officers, directors, employees, agents, successors and assigns and (including, after the respective Representatives of each of Closing Date, the foregoing Target Companies) (collectively, the “Buyer Indemnified PersonsParties”) from and against any and all Covered Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, by any such Buyer Indemnified Person that arise Party resulting from or arising out of, relate to or result from or as a consequence : (A) the failure of any Fundamental Representations to be true and correct on and as of the following:
Closing Date (ior with respect to any Fundamental Representations made as of a specific date, the failure of such representations and warranties to be true and correct as of such date); (B) the breach failure of any Tax Representations to be true and correct on and as of the Closing Date (or inaccuracy with respect to Tax Representations made as of a specific date, the failure of such representations and warranties to be true and correct as of such date); (C) the failure of any representation or warranty set forth in Article IV (other than any Seller Fundamental Representations) to be true and correct as of the Closing Date (or with respect to any such representation or warranty made as of a specific date, the failure of such representations and warranties to be true and correct as of such date), in each case solely due to a Seller contained Fraudulent Misrepresentation; (D) the failure of any representation or warranty set forth in Article III to be true and correct as of the Closing Date (or with respect to any such representation or warranty made as of a specific date, the failure of such representations and warranties to be true and correct as of such date), in each case solely due to a Company Fraudulent Misrepresentation; (E) any nonfulfillment or breach of any Post-Closing Covenant made by the Seller in this Agreement, any Related Agreement or (F) any exhibit or certificate delivered hereunderApplicable Proceeding.
(ii) The Buyer Indemnified Parties shall not be entitled to assert any indemnification pursuant to this Section 11.2 after the expiration of the applicable survival periods referenced in Section 11.1 (including the proviso to Section 11.1(a)); provided, however, that if, on or prior to such expiration of the applicable survival period, a notice of claim shall have been given to the Seller in the event accordance with Section 11.4 for such indemnification, the Buyer Indemnified Persons would otherwise Parties shall continue to have the right to be entitled indemnified with respect to such indemnification claim until such claim for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons indemnification has been satisfied or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions resolved as provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;Article XI.
(iii) any Excluded Liability;
(iv) the ownership, possession Any indemnification of a Buyer Indemnified Party pursuant to this Section 11.2 shall be effected by wire transfer or operation transfers of the Acquired Assets by Seller or any Action with respect to or arising immediately available funds from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, an account or perform any of its obligations under, accounts designated in writing by the applicable Buyer Indemnified Party to Seller within five (a5) Business Days after the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionfinal determination thereof.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover Seller shall have no liability for indemnification pursuant to Section 7.2(a)(i11.2(a)(i) with respect to Covered Losses for Tax Representations for which indemnification is provided thereunder unless such Covered Losses exceed in the aggregate $1,000,000, in which case Seller shall be satisfied liable for all Covered Losses in respect of any Tax Representation Claim; provided, however, that the aggregate amount of all payments by reducing the Holdback Reserve Amount that would otherwise be payable to Seller in satisfaction of claims for indemnification pursuant to Section 2.311.2(a)(i)(B) in respect of Tax Representations shall not exceed $89,000,000. Any Losses that become payable Notwithstanding anything to a Buyer Indemnified Person the contrary herein, the aggregate amount of all payments by Seller in satisfaction of claims for indemnification pursuant to Section 7.2(a11.2(a)(i), including for Tax Representations and any claims based on Fraud, shall not exceed the Purchase Price.
(c) Except as otherwise specifically provided in this Agreement, each of the Buyer Parties hereby acknowledges and agrees that are not satisfied its sole and exclusive remedy with respect to any and all claims relating to this Agreement, the Contemplated Transactions or any of the Target Companies, in accordance with each case, arising from and after the preceding sentence Closing, shall be payable by pursuant to the indemnification provisions set forth in this Article XI and none of the Buyer Parties will have any other rights or remedies against the other Parties from or in connection with this Agreement, the Contemplated Transactions, or any of the Target Companies, including any remedies at law, in equity, in contract, in tort, for strict liability, or under securities laws or for fraud. In furtherance of the foregoing, each of the Buyer Parties and the Company hereby waives, from and after the Closing, to the fullest extent permitted under Legal Requirements, any and all rights, claims and causes of action it may have against Seller and its Affiliates arising under, based upon demandor relating to this Agreement, by wire transfer of immediately available funds any document or certificate delivered in connection herewith, any applicable Legal Requirement or otherwise (except pursuant to an account designated the indemnification provisions set forth in writing by such Buyer Indemnified Personthis Article XI).
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (NGL Energy Partners LP)
Indemnification by Seller. (a) From and after the ClosingClosing Date and subject to Purchaser's relevant notice obligation contained herein, Seller shall indemnifydefend, defend indemnify and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) Purchaser from and against any and all Losses loss, liability, damage or expense (including reasonable legal and accounting fees and expenses and expenses reasonably incurred in investigating, preparing, defending against or prosecuting any litigation or claim, action, suit, proceeding or demand) but excluding consequential damages, lost profits or punitive damages (individually a "Loss" and collectively "Losses"), which Purchaser actually incurs as a result of every kind(i) a breach of representation and warranty contained in Article III, nature and (ii) the matters set forth on Schedule 7.2 hereof. In addition to the foregoing, Purchaser and Seller hereby each indemnify the other against any Loss which the other actually incurs as a result of the failure of the indemnifying party to perform or description asserted againstobserve, or sustainedhave performed or observed, incurred, suffered any covenant or accrued directly agreement to be performed or indirectly by, such Buyer Indemnified Person that arise out of, relate to observed by it under this Agreement or result from or as a consequence the Related Documents.
(b) The amount of any of the followingLosses incurred by Purchaser or Seller hereunder shall be reduced as follows:
(i) by the breach net amount Purchaser or inaccuracy Seller recovers (after deducting all attorneys' fees, expenses and other costs of recovery) from any representation third party, from any insurer or warranty of Seller contained in this Agreementother third party liable for such Losses, and
(ii) where and to the extent the matter at issue giving rise to any Related Agreement such Losses was provided or any exhibit or certificate delivered hereunder; provided, however, reserved for in the event Closing Balance Sheet or gave rise to the Buyer Indemnified Persons would payment of a post-Closing adjustment as described in Section 1.6, or was otherwise resolved in the preparation of the Closing Balance Sheet;
(c) Except as otherwise provided in subsection (d) below, Purchaser or Seller (as the case may be) shall be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i7.2 only (x) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent that the aggregate amount of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, adjusted as provided in Paragraph (b) of this Section 7.2) exceeds a deductible amount of U.S. $500,000 (the adaptation "Indemnification Deductible"), in which event the Losses shall be the amount, if any, which exceeds the Indemnification Deductible; and (y) to the extent that each and any specific, individual Loss (including a series of Losses which arises from the same event, transaction or modification by Buyer occurrence) which counts toward the Indemnification Deductible exceeds U.S. $25,000, provided the aggregate amount payable in respect of any Pre-Closing Product where infringement would indemnification under this Section 7.2 shall not have occurred but for such adaptation or modification by Buyer, exceed a cap of U.S. $15,000,000. Notwithstanding anything to the contrary contained in this subsection (c), the Indemnification Deductible shall not apply to any claim for indemnification under this Section 7.2 which arises out of (i) the misuse matters set forth on Schedule 7.2 ("Specific Items of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
Indemnification"), (ii) the any breach of representations or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates warranties contained in this Agreement or in any Related Agreement;
Sections 3.1 - 3.4 hereof, and (iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller either party to comply with, perform or perform observe or have performed or observed any of its obligations under, (a) covenant or agreement to be performed or observed under this Agreement or the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionRelated Documents.
(bd) Subject Notwithstanding any provisions to the contrary contained herein, the parties covenant and agree as follows with respect to any Notice of Claim by Purchaser hereunder relating to the representations or warranties contained in Section 3.12(a) hereof. To the extent that Purchaser elects to undertake further post-closing investigation of the Owned Real Property or Leased Real Property within the applicable survival period for Section 3.12 set forth above, Purchaser shall select an environmental consultant from a list of consultants mutually acceptable to the parties to undertake such investigation. Purchaser shall keep Seller apprised as to the progress and results of the investigation as it proceeds and shall furnish Seller with copies of all material correspondence and work product. The full cost of such investigation shall be borne by Purchaser and such cost shall not be applied against the Indemnification Deductible. In the event that the investigation results in a delivery by Purchaser of a Notice of Claim in accordance with Section 7.3 below, for which Seller is obligated to indemnify Purchaser hereunder, Seller shall satisfy such indemnification obligation by promptly developing a remediation work plan, acceptable to Purchaser, and undertake such remediation or other terms corrective actions necessary in order to bring the Owned Real Property and/or Leased Real Property into full compliance with the representations and conditions warranties contained in Section 3.12 (the "Remediation Effort"). Purchaser may appoint such outside consultants and advisors as it deems appropriate to review Seller's work plan, and to oversee Seller's Remediation Effort. Purchaser shall be responsible for the first Fifty Thousand Dollars ($50,000) of this Article VII, any Losses that a Buyer Indemnified Person is entitled costs related to recover pursuant to Section 7.2(a)(ithe Remediation Effort. All the cost of the Remediation Effort in excess of Fifty Thousand Dollars ($50,000) shall be satisfied fully borne by reducing Seller without application to the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3Indemnification Deductible. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied The costs of Purchaser's outside consultants or advisors used in accordance connection with the preceding sentence review and oversight of Seller's work plan, and Remediation Effort shall be payable by applied against the Indemnification Deductible. Completion of any Remediation Effort hereunder, shall release Seller upon demandfrom any further obligation under this Article VII with respect to the specific items identified in Purchaser's Notice of Claim.
(e) The indemnity provided in this Section 7.2 shall be the sole and exclusive remedy of Purchaser with respect to any and all claims relating to the subject matter of this Agreement, by wire transfer except as specifically set forth in the Asset Transfer Agreement among Xxxxxx Properties, Seller and MegaTech of immediately available funds to an account designated in writing by such Buyer Indemnified Personeven date herewith (the "Asset Transfer Agreement").
Appears in 1 contract
Indemnification by Seller. (a) From Seller and after the Closingits successors in interest shall reimburse, Seller shall indemnify, defend indemnify and hold harmless BuyerBuyer and the Company, its Affiliates and their respective successors and assigns as provided in this Article 10, at all times on and after the respective Representatives date of each this Agreement, against and in respect of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses claims, causes of every kindaction, nature or description asserted againstsuits, or sustainedproceedings, incurreddemands, suffered or accrued directly or indirectly byassessments, such Buyer Indemnified Person that arise judgments, losses, damages, costs, expenses and liabilities whatsoever (individually a "Loss" and collectively "Losses") arising out of, relate to or result related to, resulting from or as a consequence of based upon any of the following:
(i) the Seller-Assumed Liabilities;
(ii) the Basket Liabilities; and
(A) Any breach or inaccuracy non-fulfillment of any representation of the covenants or warranty agreements of Seller or, for any period prior to Closing, the Company, contained in or made pursuant to this Agreement or any of the agreements required to be delivered by Seller under paragraph 8.2(a)(iii) and (B) any inaccuracy or breach of any of the representations and warranties of Seller that is contained in this Agreement, any Related Agreement of the agreements required to be delivered by Seller under paragraph 8.2(a)(iii) or in any exhibit certificate or certificate delivered hereunderother instrument furnished to Buyer hereunder or thereunder (all Losses arising under this paragraph 10.1(a)(iii)(B) are collectively referred to herein as "Seller Contract Claims"); provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, that Seller shall not be obligated (required to indemnify Buyer and the Company under this Section 7.2(a)(i) Article 10 in respect of any Basket Liability or otherwise) Seller Contract Claim until the aggregate amount of all Basket Liabilities and Seller Contract Claims exceeds the Aggregate Basket Amount, whereupon Seller shall be required to indemnify Buyer and the Buyer Indemnified Persons or otherwise be liable to Buyer Company in respect of Basket Liabilities and Seller Contract Claims to the extent (but only to the extent) Losses in respect of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) Basket Liabilities and Seller Contract Claims exceed the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained Aggregate Basket Amount. Any provision in this Agreement to the contrary notwithstanding, (A) Seller shall only be liable for individual claims (or a series or group of related claims arising from the same set of facts or circumstances) in respect of Basket Liabilities and Seller Contract Claims that exceed $10,000 and (B) Seller shall only be liable under this Article 10 for Losses in respect of Category 2 Liabilities, Category 3 Liabilities and Seller Contract Claims (other than for any Related inaccuracy or breach of any of the representations and warranties of Seller that is contained in paragraph 5.24 of this Agreement;
) up to an aggregate amount equal to $117,250,000. Seller's indemnification obligation in respect of any Losses in respect of (iiiW) paragraph 10.1(a)(iii)(A), (X) Category 1 Liabilities, (Y) Seller-Assumed Liabilities and (Z) any Excluded Liability;
(iv) the ownership, possession Seller Contract Claim for any inaccuracy or operation breach of any of the Acquired Assets by representations and warranties of Seller that is contained in paragraph 5.24 of this Agreement) up to an aggregate amount equal to $117,250,000. Seller's indemnification obligation in respect of any Losses in respect of (W) paragraph 10.1(a)(iii)(A), (X) Category 1 Liabilities, (Y) Seller-Assumed Liabilities and (Z) any Seller Contract Claim for any inaccuracy or breach of any Action with respect to or arising from any Acquired Intellectual Property deliveredof the representations and warranties of Seller that is contained in paragraph 5.24 of this Agreement shall be unlimited in amount, installed or used prior subject, in the case of Category 1 Liabilities, to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as $10,000 minimum set forth herein; or
in clause (viiA) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionabove.
(b) Subject Subparagraphs 10.1
(a) (i) through 10.1(a)(iii) above shall be deemed to the other terms be independent bases for indemnification and conditions of this Article VII, any Losses that a Buyer Indemnified Person is shall be entitled to recover pursuant indemnification regardless of whether the basis for indemnity is excluded or included under another subparagraph; provided, that such treatment is not intended to Section 7.2(a)(ipermit Buyer or the Company to be indemnified for amounts in excess of Losses actually incurred. The indemnification provided by this paragraph 10.1 shall be interpreted and construed as broadly as possible and shall encompass claims by Buyer against Seller for any Loss sustained by Buyer and its successors and assigns whether or not involving any claim, action, suit, demand or proceeding by a third party.
(c) The results of any investigation by Buyer or its representatives shall not limit the effectiveness of Seller's or the Company's representations, warranties or covenants herein or the right of Buyer to obtain indemnification as provided by this Agreement.
(d) Seller acknowledges that Buyer may after the Closing Date sell a portion of the Acquired Business to one or more third Persons (a "Third Party Purchaser"). All indemnification costs payable to such Third Party Purchaser resulting from Losses arising out of, related to, resulting from or based upon such representations, warranties, covenants and indemnities ("Third 95 103 Party Indemnity Costs") shall be satisfied paid by reducing Buyer directly to such Third Party Purchaser and any such payment by Buyer shall be treated as Indemnifiable Losses under this Article 10. Notwithstanding any such subsequent sale, Buyer shall retain all rights to indemnification provided to it pursuant to this Article 10, including indemnification rights with respect to any portion of the Holdback Reserve Acquired Business that is sold to a Third Party Purchaser, including the right to be indemnified for any amounts paid by Buyer to any such subsequent purchaser with respect to such portion of the Acquired Business to the extent any such amounts constitute an indemnifiable Loss to Buyer under this Article 10.
(e) Buyer agrees that, from time to time, to the extent Buyer receives any Antitrust Litigation Amount that would otherwise be payable and (i) Losses previously applied against the Aggregate Basket Amount have exceeded the Aggregate Basket Amount and (ii) Buyer has received from Seller indemnification payments under this paragraph 10.1 in respect of Basket Liabilities or Seller Contract Claims, Buyer shall pay to Seller pursuant the lesser of (A) the indemnification payments received to Section 2.3such time or (B) such Antitrust Litigation Amount. Any For the avoidance of doubt, the intention of this paragraph 10.1(e) is to put the parties in the same place independent of the timing of receipt of any Antitrust Litigation Amount and the incurrence of, and reimbursement for, indemnifiable Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(aunder paragraph 10.1(a) that are not satisfied in accordance with the preceding sentence shall be payable by respect of Basket Liabilities or Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonContract Claims.
Appears in 1 contract
Samples: Stock Purchase Agreement (Martin Marietta Materials Inc)
Indemnification by Seller. (a) From Without limiting any other rights that Buyer, any assignee of Buyer, including but not limited to the Noteholders and after the ClosingIndenture Trustee, or any of such Persons’ respective shareholders, officers, employees, agents, or Affiliates (each an “Indemnified Party”) may have hereunder or under applicable law, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of hereby agrees to indemnify each of the foregoing (the “Buyer Indemnified Persons”) Party from and against any and all Losses damages, losses, claims, liabilities and related costs and expenses, including attorneys’ fees and disbursements (all of every kindthe foregoing being collectively referred to as “Indemnified Amounts”), nature awarded against or description asserted againstincurred by such Indemnified Party or non–monetary damages of any such Indemnified Party excluding, however, Indemnified Amounts to the extent resulting from the gross negligence or sustainedwillful misconduct on the part of the applicable Indemnified Party, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate relating to or result from or as a consequence of any of the followingresulting from:
(i) the breach or inaccuracy of any representation or warranty made or deemed made by Seller, or any of Seller contained its officers, under or in connection with this Agreement, any Related Agreement which shall have been false, incorrect or any exhibit misleading when made or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) deemed made or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellerdelivered;
(ii) the breach or non-fulfillment offailure by Seller to comply with any term, or non-compliance with, any agreement, obligation provision or covenant of Seller or any of its Affiliates contained in this Agreement or any agreement executed in connection with this Agreement, or with any Related Agreementapplicable law, including with respect to any Mortgage Loans or the nonconformity of any Mortgage Loans with any such applicable law;
(iii) the failure to vest and maintain vested in Buyer, an undivided ownership interest in the Mortgage Loans and all related assets free and clear of any Excluded LiabilityEncumbrance whether existing at the time of any Purchase or at any time thereafter (including, without limitation, as a result of the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable law, whether at the time of any Purchase or at any subsequent time);
(iv) any dispute, claim, offset or defense (other than the ownership, possession or operation discharge in bankruptcy of any Mortgagor Customer) of any Mortgagor Customer to the Acquired Assets by Seller or any Action payment with respect to any Mortgage Loans (including, without limitation, a defense based on the Mortgage Loans not being a legal, valid and binding obligations of the related Mortgagor Customer enforceable against it in accordance with its terms), or arising from any Acquired Intellectual Property delivered, installed or used prior other claim related to the Closingsuch Mortgage Loans;
(v) any Taxes failure of Seller to have performed its duties under any kind relating to or arising in connection with the transfer of the Acquired Assets to BuyerMortgage;
(vi) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which a Mortgagor Customer may be located as a result of the failure of Seller to comply withqualify to do business or file any notice or business activity report or any similar report;
(vii) any claim, suit or perform action of any kind arising out of or in connection with Environmental Laws, including any vicarious liability;
(viii) the failure by Seller to pay when due any taxes for which Seller is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Mortgage Loans;
(ix) the commingling of collections on the Mortgage Loans at any time with other funds of Seller;
(x) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases by Seller or the security interest in the Mortgage Loans;
(xi) any failure by Buyer to give at least reasonably equivalent value to Seller in consideration for the transfer to Buyer of any of its obligations underthe Mortgage Loans or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, (a) the Existing License Agreement prior to the Closing including, without limitation, any provision of any federal or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth hereinstate bankruptcy, insolvency or similar law; or
(viixii) the failure of Seller or any of its Affiliates agents or representatives to comply with remit to Buyer collections on the Mortgage Loans remitted to Seller or any Laws applicable to the import such agent or export of the Acquired Software representative as provided in the United States, Canada and the European Unionthis Agreement.
(b) Subject Any amounts subject to the other terms and conditions indemnification provisions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) 12.1 shall be satisfied paid by reducing Seller to the Holdback Reserve Amount that would otherwise be Indemnified Party within five Business Days following such Person’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 12.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to Seller pursuant to reflect not only the relative benefits received by such Indemnified Party on the one hand and Seller, on the other hand, but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) Indemnification under Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence 12.1 shall be in an amount necessary to make the Indemnified Party whole after taking into account any tax consequences to the Indemnified Party of the receipt of the indemnity provided hereunder, including the effect of such tax or refund on the amount of tax measured by net income or profits that is or was payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer the Indemnified PersonParty.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, subject to the provisions of this Article XII, Seller shall indemnify, defend and hold harmless Buyerindemnify Purchaser, its Affiliates (including the Companies), and each of their respective successors Representatives, successors, and assigns and the respective Representatives of each of the foregoing (the each, a “Buyer Purchaser Indemnified PersonsParty”) against, be liable to the Purchaser Indemnified Parties for, and hold each Purchaser Indemnified Party harmless from and against any and all Losses of every kindsuffered, nature sustained or description asserted againstincurred by such Purchaser Indemnified Party as a result of, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise arising out of, relate with respect to or result from or as a consequence of any of the followingrelating to:
(i) the any breach of or inaccuracy of in any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed made by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellerin Article IV;
(ii) the any breach or non-fulfillment of, failure by Seller or non-compliance with, Seller Parent to perform any agreement, obligation covenant or covenant agreement of Seller or any of its Affiliates Seller Parent contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;Closing Date Indebtedness, to the extent not paid at Closing pursuant to Section 2.3(a)(iii), or any Transaction Expense incurred by or on behalf of any Company prior to Closing that was not paid prior to Closing; and
(iv) the ownership, possession or operation matters set forth on Section 12.2(a)(iv) of the Acquired Assets Seller Disclosure Schedule;
(b) From and after the Closing, subject to the provisions of this Article XII, Seller shall indemnify the Purchaser Indemnified Parties against, be liable to the Purchaser Indemnified Parties for, and hold each Purchaser Indemnified Party harmless from and against any and all Losses suffered or incurred by Seller such Purchaser Indemnified Party as a result of, arising out of, or relating to:
(i) any breach of or inaccuracy in any representation or warranty made by the Companies in Article V;
(ii) any breach of or failure by a Company to perform any covenant, agreement or obligation of such Company contained in this Agreement or any Action with respect other Related Agreement that was to be performed at or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;; and
(viii) any Liability for Taxes imposed on a Company for Indemnifiable Taxes (for the avoidance of any kind relating to or arising in connection with the transfer doubt, without duplication of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover amounts paid pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person9.1(d)).
Appears in 1 contract
Samples: Stock Purchase Agreement (Bright Health Group Inc.)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend hereby agrees to indemnify and hold harmless Buyer, its Affiliates affiliates and its and their respective successors officers, directors, employees, and assigns agents, (individually, an “Indemnified Party” and the respective Representatives of each of the foregoing (the collectively, “Buyer Indemnified PersonsParties”) from against and against in respect of all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, orders, judgments, costs and expenses (including the reasonable fees, disbursements and expenses of attorneys and consultants) of any and all Losses of every kindkind or nature whatsoever (collectively, nature or description asserted against“Damages”), or to the extent sustained, incurred, suffered or accrued directly incurred by or indirectly bymade against any Indemnified Party, such Buyer Indemnified Person that arise based upon, arising out of, relate to of or result from or as a consequence of any of the followingin connection with:
(i) the any breach of any covenant or inaccuracy agreement made by Seller in this Agreement; or
(ii) any breach of any representation or warranty of made by Seller contained in this Agreement.
(b) Buyer will give prompt written notice to Seller of any claim for indemnification hereunder, specifying to the extent known the amount and nature of the claim, and any Related Agreement matter which in Buyer’s opinion is likely to give rise to an indemnification claim. The failure of Buyer to so notify Seller of any such action shall not relieve Seller from any liability which it may have to Buyer (i) other than pursuant to this Section 4.1 or (ii) under this Section 4.1 unless, and only to the extent that, such failure to notify results in the forfeiture of substantive rights or defenses or otherwise materially and adversely affects Seller. Seller will have the right to control the defense through counsel of their choosing. Buyer will have the right to the extent of its interests to participate on its own behalf and at its own expense in such matter or its settlement through counsel of its choosing. Seller agrees that it will not, without the prior written consent of Buyer, which consent shall not be unreasonably withheld, settle, compromise or consent to the entry of any exhibit judgment in any pending or certificate delivered hereunderthreatened claim, action or proceeding relating to the matters contemplated hereby (if Buyer is a party thereto) unless such settlement, compromise or consent includes an unconditional release of Buyer from all liability arising or that may arise out of such claim, action or proceeding. Seller shall not be liable for any settlement of any claim, action or proceeding affected against Buyer without the prior written consent of Seller, which consent shall not be unreasonably withheld. The rights accorded to Buyer hereunder shall be in addition to any rights Buyer may have at common law, by separate agreement or otherwise.
(c) Seller shall not be liable for any Loss or Losses pursuant to this section (i) unless and until the aggregate amount of all Buyer Losses incurred by the Buyer Indemnitees exceeds $25,000, in which event Seller shall be liable for all Buyer Losses in excess of $25,000, and (ii) to the extent that Buyer Losses exceed $291,000 in the aggregate; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates nothing contained in this Agreement section shall be deemed to limit or restrict in any Related Agreement;
(iii) manner any Excluded Liability;
(iv) the ownership, possession rights or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply withremedies which Buyer has, or perform any of its obligations undermight have, (a) the Existing License Agreement prior to the Closing at Law, in equity or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United Statesotherwise, Canada and the European Unionbased on fraud.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From and after Subject to the Closinglimitations set forth below, Seller shall indemnify, defend and the Principals jointly and severally hereby agree to indemnify Buyer against and hold it harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses losses, liabilities, costs, damages, claims and expenses (including, without limitation, reasonable attorneys fees and expenses) ("Damages") which Buyer may sustain at any time by reason of every kind(i) noncompliance with any bulk sales or transfer law applicable to the transactions contemplated hereby, nature (ii) any liability or description asserted contract of, or claim against, Seller, whether contingent or sustainedabsolute, incurreddirect or indirect, suffered known or accrued directly unknown, matured or indirectly unmatured (including but not limited to liabilities for taxes), except for Assumed Liabilities, (iii) any liability or claim arising in any way from any service rendered, or action taken by, such Buyer Indemnified Person that arise out or relating to the operations of, relate Seller prior to the date hereof, except for the Assumed Liabilities, (iv) any liability of or result from claim against Seller under any environmental laws relating to any event, action or as a consequence of any of failure to act which occurred prior to the following:
date hereof, or (iv) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled failure to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product comply with any other product of the warranties, representations, conditions, covenants or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant agreements of Seller or any of its Affiliates the Principals contained in this Agreement or in any Related Agreement;
(iii) agreement or document delivered pursuant hereto or in connection herewith. If Buyer is indemnified for any Excluded Liability;
(iv) the ownershipaccounts receivable of Seller which are not collected, possession or operation of the Acquired Assets by Seller or any Action with respect then Buyer shall assign such accounts to or arising from any Acquired Intellectual Property delivered, installed or used prior Seller. Notwithstanding anything above to the Closing;contrary:
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) Seller and the Existing License Agreement prior Principals shall be required to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software indemnify and hold Buyer harmless from and against only those Damages which in the United States, Canada and the European Unionaggregate exceed $75,000.
(b) Subject In no event shall the aggregate liability of Seller and the Principals for Damages hereunder exceed $1,000,000, except for any liability arising by reason of any intentional breach or misstatement or intentional failure to comply with any of the other terms warranties, representations, conditions, covenants or agreements of Seller or the Principals contained in this Agreement or any document delivered pursuant hereto or in connection herewith.
(c) In no event shall the aggregate liability of Seller and conditions the Principals for Damages hereunder exceed the amount of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover cash paid pursuant to Section 7.2(a)(i3.1(a) shall be satisfied by reducing hereof and the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with aggregate fair market value of the preceding sentence shall be payable Shares received by Seller hereunder. For purposes hereof, the fair market value of the Shares shall mean the lesser of the last sale price of a share of Buyer's Common Stock on the Nasdaq Stock Market on (i) the date hereof or (ii) the date or dates upon demandwhich Buyer makes any claim for indemnification hereunder.
(d) At Seller's election, Seller shall have the right to reimburse Buyer for Damages by wire transfer returning to Buyer Shares having an aggregate fair market value equal to the amount of immediately available funds to an account designated in writing by such Buyer Indemnified Personthe Damages.
Appears in 1 contract
Samples: Asset Purchase Agreement (Esquire Communications LTD)
Indemnification by Seller. (a) From Subject to the provisions of this Article IX, effective as of and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their each of the Buyer’s and such Affiliate’s respective officers, directors, agents, successors and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsParties”) ), from and against any and all Covered Losses of every kind, nature incurred or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of by any of the following:
Buyer Indemnified Parties, to the extent arising out of or resulting from (i) the any breach or inaccuracy of any representation Fundamental Representation (in each case, without giving effect to any "Material Adverse Effect", "materiality", "Knowledge" or warranty similar qualifications), (ii) any breach of any covenant or agreement of Seller contained in this Agreement, (iii) any Related Agreement or Retained Liabilities, (iv) any exhibit or certificate delivered hereunder; provided, however, in of the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated following Liabilities (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses the following Liabilities are not Retained Liabilities): (A) any Liabilities that relate to, or arise out of, relate to directly or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) indirectly Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller 's or any of its Affiliates contained Affiliates' operation of any business or division (including any business or division previously sold or discontinued), other than the Business, and any sale, divestiture or other disposition of any such business or division, and any Taxes associated therewith, to the extent amounts in this Agreement or respect of such Liabilities are not recovered using commercially reasonable efforts pursuant to the insurance policies of the Purchased Company and its Subsidiaries (and such Liabilities shall include any Liabilities associated with denied claims and any out of pocket costs (including but not limited to deductibles) incurred in connection with any Related Agreement;
(iiisuch recovery efforts),(B) any Excluded Liability;
(iv) the ownership, possession or operation Liabilities arising out of the Acquired Assets by Seller or any Action failure to comply with Environmental Laws solely with respect to any discontinued activities or arising from operations of any Acquired Intellectual Property deliveredformerly owned, installed leased or used prior to operated properties associated with the Closing;
Purchased Assets or the Business, or (vC) any Taxes of any kind relating to or arising in connection with the transfer Liabilities of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller Purchased Company or any of its Affiliates to comply with Subsidiaries in respect of any Laws applicable to Seller Benefit Plan other than the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied Benefit Plan transferred in accordance with Section 5.14(b); provided however, notwithstanding any provision of this Agreement, no claim for indemnification hereunder may be made after the preceding sentence shall be payable by Seller upon demand, by wire transfer three year anniversary of immediately available funds to an account designated in writing by such Buyer Indemnified PersonClosing.
Appears in 1 contract
Indemnification by Seller. Seller agrees to and shall indemnify the Buyer Parties and hold each of them harmless against any Losses which the Buyer Parties may suffer, sustain or become subject to, as a result of: (a) From and after the Closing, any breach by Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of made by Seller contained in this Agreement; (b) any breach of any covenant or agreement made by Seller in this Agreement; or (c) any Excluded Liability; provided, that Seller shall not have any Related Agreement liability under Section 8.1(a) or any exhibit or certificate delivered hereunderSection 8.1(b) (other than with respect to fraud by Seller) unless the aggregate amount of all Losses relating thereto for which Seller would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $200,000 (the “Threshold Amount”), at which xxxx Xxxxxx shall be liable for all such Losses in excess of the Threshold Amount; provided, further, that the aggregate amount that the Buyer Parties shall be entitled to under Section 8.1(a) and Section 8.1(b) shall not exceed $6,000,000 (the “Cap”) (provided, however, that neither the Threshold Amount or the Cap shall be applicable (i) in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent case of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed fraud by Seller or (dii) Seller’s compliance with specifications and directions provided by respect to any Excluded Liability. For the avoidance of doubt, in the event that (i) Seller is required to indemnify any Buyer Party due to Seller;
a breach of Section 6.14 with respect to the Transferred Real Property, (ii) Remediation is required to correct the breach or non-fulfillment ofcondition giving rise to such breach, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
and (iii) Seller, either itself or through a third party, undertakes all or some portion of such Remediation, then any Excluded Liability;
(iv) the ownership, possession amounts paid or operation of the Acquired Assets costs incurred by Seller in connection with such Remediation shall be considered in determining whether the Threshold Amount or any Action the Cap have been reached with respect to Seller’s obligations under this Section 8.1. Additionally, Seller shall have no responsibility for the conduct or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes cost of any kind relating to or arising in connection with the transfer Remediation required as a result of Buyer’s use of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, Hollister Property for any purpose other than as a chemical manufacturing or perform any of its obligations under, (a) the Existing License Agreement prior to chemical warehousing facility after the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionDate.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VIIVIII, Seller shall indemnify and defend each of Buyer and its Affiliates (including the Target Companies) 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 that a incurred or sustained by, or imposed upon, the Buyer Indemnified Person is entitled Indemnitees based upon, arising out of, with respect to recover pursuant or by reason of:
(a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement or in any certificate, instrument or agreement delivered to Section 7.2(a)(i) shall be satisfied Buyer by reducing the Holdback Reserve Amount that would otherwise be payable to or on behalf of Seller pursuant to this Agreement (other than in respect of Section 2.3. Any Losses 3.22, it being understood that become payable the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article VI), as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a Buyer Indemnified Person specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or in any certificate, instrument or agreement delivered to Buyer by or on behalf of Seller pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VI, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to Article VI);
(c) the Unfunded Retirement Plan, including but not limited to all contributions or benefits accrued or are owed as of the Closing Date or that accrue or become owed after the Closing Date with respect to such plan;
(d) the matters (x) described in Section 7.2(a8.02(d)(x) that are not satisfied of the Disclosure Schedules or (y) listed in accordance Section 3.17 of the Disclosure Schedules (including those matters included in Section 3.17 of the Disclosure Schedules by cross-reference to other Sections of the Disclosure Schedules);
(e) the termination of the Contracts and other relationships and arrangements with the preceding sentence sales agents, representatives and distributors listed in Section 5.17 of the Disclosure Schedules;
(f) any of the Excluded Assets, including, without limitation, the presence of any Hazardous Materials on, under or at the 5151 Gasmer Property or the Corpus Christi Property; provided, however, Seller shall have no obligation to indemnify Buyer for any Release of Hazardous Materials on, under or at the 5151 Gasmer Property caused by the Company’s operation during the term of the lease described in Section 5.21 of this Agreement; provided, further, however, absent gross negligence or willful misconduct on the part of the Buyer or the Target Company, Buyer shall not, for purposes of this provision, be payable by deemed to have caused any Release of Hazardous Materials on, under or at the 5151 Gasmer Property that results from the continuation of operations in a manner consistent with those of the Target Companies prior to the Closing; or
(g) any Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonTransaction Expenses.
Appears in 1 contract
Indemnification by Seller. (a) From After the Closing Date, and after subject to the Closinglimitations set forth herein and except with respect to the matters that are the subject of Section 9.5, Seller shall agrees to indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) Group Member from and against any and all Losses losses, Liabilities, damages, costs and expenses, including costs of every kindinvestigation and defense and reasonable fees and expenses of lawyers, nature or description asserted againstexperts and other professionals (collectively, or sustained"Indemnifiable Damages"), incurred, suffered or accrued directly or indirectly by, incurred by such Buyer Indemnified Person that arise out of, relate to Group Member in connection with or result from or as a consequence of any of the following:
arising from: (i) any breach of any warranty or the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunderby or on behalf of Seller pursuant hereto, (ii) the IDS Transaction, (iii) any breach by Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement, (iv) the Excluded Liabilities, or (v) any noncompliance with any bulk sales Laws or fraudulent transfer Laws in respect of the transactions contemplated hereby. Notwithstanding the foregoing, Seller shall not be required to indemnify and hold harmless Buyer Group Members in respect of any claim under clause (i) of this Section 9.1(a) (and that does not involve fraud or willful breach by Seller) or pursuant to a breach of the covenant set forth in Section 5.3(b)(xix), (A) unless and until Indemnifiable Damages in an aggregate amount greater than ten million dollars ($10,000,000) (the "Deductible") have been incurred, paid or accrued, in which case the applicable Buyer Group Member(s) may make claims for indemnification for only Indemnifiable Damages that exceed the Deductible or (B) for any individual claim for which Indemnifiable Damages do not exceed fifteen thousand dollars ($15,000) (the "De Minimis Amount"), which shall not be applied against the Deductible (if a claim exceeds the De Minimis Amount, the entire amount of such claim is applied against the Deductible); provided, however, that the De Minimis Amount limitation shall be applied collectively to repetitive or multiple claims from the same source; and provided, further, that the aggregate amount required to be paid by Seller pursuant to Section 9.1(a)(i) or pursuant to a breach of the covenant set forth in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller Section 5.3(b)(xix) shall not be obligated exceed one hundred million dollars (under this Section 7.2(a)(i$100,000,000) (the "Maximum Amount"). Notwithstanding the foregoing, the Deductible and the Maximum Amount shall not apply to a claim to recover Indemnifiable Damages arising out of any breach of any warranty or the inaccuracy of any representation contained in Sections 3.5, 3.8, 3.12(a), 3.13, 3.14(b)(i) and 3.14(c) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action covenant set forth in Section 5.3(b)(xix) with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionsuch representations.
(b) Subject The period for making claims under Section 9.1(a)(i) and Section 5.3(b)(xix) shall terminate eighteen (18) months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 9.1(a)(i) or Section 5.3(b)(xix) thereafter), except that the indemnification by Seller shall continue as to (i) the representations and warranties of Seller set forth in Sections 3.5, 3.14(b)(i) and 3.14(c), until thirty (30) days after the expiration of the relevant statutory period of limitations applicable to the other terms underlying claim, giving effect to any waiver, mitigation or extension thereof, (ii) the representations and conditions warranties of this Article VIISeller set forth in Sections 3.12(a), until seven (7) years after the Closing Date, (iii) the representation and warranty of Seller set forth in Section 3.13, indefinitely, (iv) the covenant set forth in Section 5.3(b)(xix), until the expiration of the period to bring claims with respect to the relevant representation and warranty, and (v) any Losses that a claims asserted by Buyer Indemnified Person is entitled prior to recover pursuant to Section 7.2(a)(ithe expiration of such eighteen (18) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personmonth period.
Appears in 1 contract
Samples: Asset Purchase Agreement (Spirit AeroSystems Holdings, Inc.)
Indemnification by Seller. (a) From and after the Closing, The Seller shall indemnify, defend indemnify and hold the Purchaser harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against against, and shall reimburse the Purchaser with respect to, any and all Losses loss, damage, liability, cost and expense, including reasonable attorneys' fees, incurred by the Purchaser by reason of every kind, nature or description asserted against, arising out of or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
in connection with: (i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement Article IV hereof or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained elsewhere in this Agreement or in any Related Agreement;
schedule, instrument or certificate delivered pursuant hereto notwithstanding any purchase investigation which the Purchaser may have made; (ii) the failure of the Seller to perform any agreement or covenant required by this Agreement to be performed by the Seller; (iii) the account payable to AT&T or any Excluded Liability;
of its affiliates with respect to billing disputes concerning fraudulent telephone calls in the approximate aggregate amount of $210,000 or (iv) the ownership, possession failure or operation alleged failure of the Acquired Assets by Seller or any Action Purchaser to comply with the requirements of applicable law with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising bulk transfers in connection with the transfer transactions contemplated hereby; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser pursuant to this Section (A) until the Purchaser has suffered aggregate losses by reason of all such breaches in excess of a $50,000 deductible (after which point the Acquired Assets Seller will be obligated only to Buyer;
(vi) indemnify the failure of Seller to comply withPurchaser from and against such further losses), or perform any of its obligations under, thereafter (aB) the Existing License Agreement prior to the Closing or extent the aggregate losses the Purchaser has suffered by reason of all such breaches exceeds the Purchase Price (b) after which point the Surviving Existing License Agreement Provisions following Seller will have no obligation to indemnify the Closing as set forth hereinPurchaser from and against further losses); or
(vii) and provided, however, further, that the failure of Seller shall indemnify the Purchaser for any loss with respect to the account payable to AT&T or any of its Affiliates affiliates referred to comply with in item (iii) above on a dollar-for-dollar basis without taking into account any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Uniondeductible threshold.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, subject to the other provisions of this ARTICLE 9, Seller shall indemnify(and Seller Guarantor pursuant to the Seller Guarantee) agrees to indemnify Purchaser and its officers, defend directors, employees and Affiliates (including the Company) (collectively, the "Indemnified Purchaser Entities") and to hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) them harmless from and against against, any and all Indemnifiable Losses of every kindsuffered, nature paid or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, incurred by any such Buyer Indemnified Person that arise out of, relate to or result Purchaser Entity (a) arising from or as a consequence any breach of any of the following:
Indemnifiable Reps set forth in this Agreement or the Indemnifiable Reps set forth in the certificate delivered pursuant to Section 7.03 (i) provided that, for purposes of determining the breach or inaccuracy existence of any representation or warranty such breach and the calculation of Seller contained in this AgreementIndemnifiable Losses with respect to such breach, any Related Agreement "material", "materiality", "material respects", or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise "Company Material Adverse Effect" qualifiers shall be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or servicedisregarded), (b) the adaptation arising from or modification by Buyer of relating to any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed breach by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates covenants or agreements contained in this Agreement or in any Related Ancillary Agreement;
, (iiic) arising from or relating to any Excluded Liability;
(ivi) Taxes (or the ownership, possession or operation nonpayment thereof) of Seller and its Affiliates (other than Taxes of the Acquired Assets by Seller Company) attributable to any Pre-Closing Tax Period or any Action Pre-Closing Straddle Period or (ii) Taxes (or the nonpayment thereof) imposed on or with respect to the Company attributable to any Pre-Closing Tax Period or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply withPre-Closing Straddle Period, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(ad) that are Transaction Expenses, to the extent not satisfied taken into account in accordance with the preceding sentence shall be payable by calculation of the Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonClosing Payment or Final Closing Payment.
Appears in 1 contract
Samples: Purchase Agreement (Valhi Inc /De/)
Indemnification by Seller. (a) From and after the ClosingClosing and subject to the limitations of this Article 10, Seller shall indemnifyshall, defend jointly and severally, indemnify and hold harmless Buyer, its Affiliates Master Fund, and Feeder Fund and their Affiliates, their respective successors and assigns assigns, and the in each such case their respective Representatives of each of the foregoing present or former directors, officers, shareholders, employees and agents (the “Buyer Indemnified PersonsParties”) harmless from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such at any time incurred by any Buyer Indemnified Person that arise out ofParty in connection with, relate resulting from, related to or result from or as arising from:
(a) any material breach by a consequence Seller of any of its representations or warranties (with materiality determined, where applicable, by reference to the following:Transferred Contract that is the subject of the relevant representation or warranty) in this Agreement, the Assignment and Assumption Agreements, or in any other agreement entered into in connection with this Agreement;
(ib) the any material breach or inaccuracy nonfulfillment of any representation agreement or warranty covenant (in each case with materiality determined, where applicable, by reference to the Transferred Contract that is the subject of the relevant agreement or covenant) to be performed by a Seller pursuant to this Agreement, the Assignment and Assumption Agreements, or in any other agreement entered into in connection with this Agreement;
(c) any claim by an Obligor or a third party in connection with a Seller’s making or collecting loans or performing any transactions under the Transaction Documents prior to or at the Closing Date; or
(d) any failure by a Seller to pay or perform, or any claim against a Buyer Indemnified Party by a third party that, if successful, would give rise to, any of the Excluded Obligations. Notwithstanding anything to the contrary contained in this Agreement, neither Seller has made any Related Agreement representations or warranties, and therefore provides no indemnification, regarding: (i) the creditworthiness, solvency or financial ability of any Obligor or Guarantor or any exhibit or certificate delivered hereunder; providedother obligor, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) including any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance withpledgor, any agreement, obligation letter of credit issuer or covenant of Seller insurer to pay or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its liabilities or obligations under, (a) the Existing License Agreement prior with respect to the Closing Transferred Assets, or (bii) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller any Obligor’s or any of its Affiliates to comply with any Laws applicable Guarantor’s paying or performing pursuant to the import or export terms of the Acquired Software in the United States, Canada and the European Unionany Transferred Contract.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Samples: Transfer Agreement (PIMCO Capital Solutions BDC Corp.)
Indemnification by Seller. (a) From Subject to the limitations set forth in this Article XI, from and after the Closing, Seller shall indemnify, defend indemnify and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) Group Member from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, incurred by such Buyer Indemnified Person that arise out of, relate to Group Member proximately resulting from:
(i) any breach by Seller or result from or as a consequence any Seller Affiliate (other than the Company Group) of any of its covenants or agreements in (A) Article VII or (B) any other provision of this Agreement;
(ii) any breach of any warranty or the followinginaccuracy of any representation of Seller contained in this Agreement or any certificate delivered by or on behalf of Seller pursuant to this Agreement (determined without regard to any limitation or qualification by the words “material”, “in all material respects” or derivatives of such words);
(iii) the Reorganization;
(iv) the Excluded Liabilities, Seller Taxes and the matter set forth on Schedule 11.1(a)(iv);
(v) the matters set forth on Schedule 11.1(a)(v); or
(vi) the matters set forth on Schedule 11.1(a)(vi); provided, however, that (1) other than with respect to breaches of Seller Fundamental Representations, Seller shall not be required to indemnify and hold harmless any Buyer Group Member under clauses (i)(A), (ii) and (vi) of this Section 11.1(a) with respect to Losses incurred by Buyer Group Members that are $75,000 or less and any such individual claim shall not be aggregated for purposes of the following clause (2) (provided that Losses arising out of the same facts or circumstances may be aggregated for purposes of this clause (1)), (2) other than with respect to breaches of Seller Fundamental Representations, Seller shall be required to indemnify and hold harmless any Buyer Group Member under clauses (i)(A), (ii) and (vi) of this Section 11.1(a) with respect to Losses incurred by Buyer Group Members only to the extent that the aggregate amount of such Losses incurred by the Buyer Group Members exceeds $2,000,000 and then only with respect to such excess, (3) the aggregate amount required to be paid by Seller under Section 11.1(a)(v) shall not exceed $5,000,000, and (4) other than with respect to breaches of Seller Fundamental Representations, the aggregate amount required to be paid by Seller under Sections 11.1(a)(i)(A), 11.1(a)(ii), and 11.1(a)(vi) shall not exceed the sum of (A) $13,750,000 and (B) solely in the event that Seller is required to indemnify for Losses under Section 11.1(a)(ii) with respect to a breach of Section 5.20(b), the amount of such Losses under Section 11.1(a)(ii) with respect to such breach of Section 5.20(b), provided that in no event shall the amount provided for in this clause (B) exceed $7,000,000; provided, further, that Losses, if any, in respect of any breach of Section 5.20(b) shall be paid first from the amount set forth in clause (B) above and second from the amount set forth in clause (A) above; provided, further, that other than for fraud, the aggregate amount required to be paid by Seller pursuant to this Article XI, taken together, shall not exceed the Base Purchase Price. For the avoidance of doubt, other than with respect to breaches of Seller Fundamental Representations, in no event shall the aggregate amount required to be paid by Seller under Sections 11.1(a)(i)(A), 11.1(a)(ii) (other than in respect to a breach of Section 5.20(b)) and 11.1(a)(vi) exceed $13,750,000.
(b) The indemnification provided for in Section 11.1(a)(i) and Section 11.1(a)(ii) shall terminate eighteen (18) months after the Closing Date (and no claims shall be made by any Buyer Group Member under this Article XI thereafter), except that:
(i) the breach or inaccuracy of any representation or warranty indemnification by Seller shall continue as to the covenants of Seller contained to be performed after the Closing Date until performed in this Agreementaccordance with their respective terms or, any Related Agreement or any exhibit or certificate delivered hereunder; providedif no term is expressly stated, however, in upon the event expiration of the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer statute of limitations period applicable to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellermatters covered thereby;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant indemnification by Seller shall continue as to the Seller Fundamental Representations until the expiration of Seller or any the applicable statute of its Affiliates contained in this Agreement or in any Related Agreementlimitations;
(iii) any Excluded Liabilitythe indemnification by Seller shall continue as to the representations and warranties of Seller set forth in clauses (a), (c), (d), (e), (g), (h), (i), (m), (q) and (r) of Section 5.10 (Taxes) until the expiration of the applicable statute of limitations, plus 60 days;
(iv) the ownershipindemnification by Seller shall continue as to the representations and warranties of Seller set forth in Sections 5.18 (Employee Benefit Plans) and 5.20 (Employees), possession which shall terminate the earlier of (A) three (3) years after the Closing Date and (B) the applicable statute of limitations with respect to the liabilities in question (as extended), plus 60 days; and
(v) the indemnification by Seller shall continue as to any Loss of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.3 on or operation prior to the date such indemnification would otherwise terminate in accordance with this Section 11.1 until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer Group Members for the Acquired Assets full amount of such indemnifiable Loss in accordance with this Article XI.
(c) The indemnification provided for in this Section 11.1 as to the representations and warranties of Seller set forth in clauses (f), (j) and (o) of Section 5.10 shall terminate eighteen (18) months after the Closing Date (and no claims shall be made by any Buyer Group Member under this Article XI thereafter with respect to such representations and warranties of Seller set forth in such clauses), and no Losses with respect to any breach by Seller or any Action Seller Affiliate of the representations and warranties of Seller set forth in such clauses shall be taken into account except to the extent of Losses actually incurred with respect to taxable periods or arising from any Acquired Intellectual Property delivered, installed or used prior portions thereof (determined on a closing of the books basis) during such eighteen (18) month period due to the Closing;
breach of the representations and warranties of Seller set forth in clauses (vf), (j) and (o) of Section 5.10 (and, for avoidance of doubt, Losses incurred in respect of taxable periods or portions thereof (determined on a closing of the books basis) beyond such eighteen (18) month period shall not be taken into account, whether or not a claim in respect of such Losses is made during such eighteen (18) month period). As provided in Section 5.10, notwithstanding anything to the contrary in this Agreement, for the avoidance of doubt (and without creating any implication as to the scope or effect of any other representations), nothing in the representations and warranties of Seller set forth in clauses (b), (k), (l), (n), or (p) of Section 5.10 shall cause Seller to be liable for any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of related Losses for which Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover not expressly liable pursuant to Section 7.2(a)(i) 8.1 (relating to Tax matters). For the avoidance of doubt, to the extent the applicable Governmental Body successfully challenges Seller’s and its Affiliates’ application of accounting principles or the Code in its Tax Returns, which successful challenge results in Losses to Buyer for Taxes imposed on any Company Group Member attributable to taxable years or periods beginning after the Closing Date (and, with respect to any Straddle Period, the portion of such Straddle Period beginning immediately after the Closing Date), then Buyer may assert a claim for Losses under Section 11.1(a)(iv); provided, however, that Buyer shall not be satisfied entitled to indemnification to the extent that such Losses result from the continued application by reducing Buyer of Seller’s and its Affiliates’ application of Seller’s and its Affiliates’ historical accounting principles and interpretation of the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with Code at any time after the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonClosing Date.
Appears in 1 contract
Samples: Asset Contribution and Equity Purchase Agreement (West Corp)
Indemnification by Seller. (a) From Subject to the provisions of this Article IX and except with respect to indemnification for Taxes that are governed by Article VI, effective as of and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, Purchaser and its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Purchaser Indemnified PersonsParties”) ), from and against any and all Covered Losses of every kind, nature incurred or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of by any of the followingPurchaser Indemnified Parties, to the extent arising out of or resulting from:
(i) the breach or inaccuracy failure of any representation or warranty of Seller contained in this AgreementArticle III to be true and correct as of the Closing Date (or with respect to representations and warranties that are made as of a specific date, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent failure of such Losses that arise out of, relate representations and warranties to or result from (a) any combination by Buyer be true and correct as of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Sellerdate);
(ii) the any breach of any covenant or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant agreement of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;Retained Liabilities (including any Retained Liabilities of the Target Entities); and
(iv) (A) the ownershiptransfer of any interest in any Target Entity, possession Excluded Asset, Assumed Liability or operation of the Acquired Assets by Seller or any Action with respect Retained Liability to or arising from any Acquired Intellectual Property delivered, installed or used among Seller and its Affiliates prior to the Closing;
, or (v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(viB) the failure Pre-Closing Restructuring, in each case of Seller to comply with, or perform any of its obligations underclauses (A) and (B), (aI) other than the Existing License Agreement prior transactions contemplated by Article II, (II) without limiting any Assumed Liability and (III) other than with respect to any changes or modifications made to the Pre-Closing or (b) Restructuring at the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure request of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionPurchaser.
(b) Subject Notwithstanding any provision to the contrary (other terms and conditions of this than those provisions contained in Article VIIVI):
(i) Seller shall not be required to indemnify, defend or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for any (A) any Covered Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i9.2(a)(i) shall be satisfied by reducing or Section 9.2(a)(iii), to the Holdback Reserve Amount extent that would otherwise be payable to Seller such Covered Losses are reflected, recorded or included in Working Capital on the Post-Closing Statement; (B) any Covered Losses pursuant to Section 2.3. Any 9.2(a)(i) (other than for a breach of or inaccuracy in the Seller Fundamental Representations or the representations and warranties under Section 3.17), unless the claim involves Covered Losses that become payable in excess of $100,000 (the “De Minimis Amount”) and if such Covered Losses do not exceed the De Minimis Amount, such Covered Losses shall not be applied to a Buyer or considered for the Deductible or otherwise for purposes of calculating the aggregate amount of the Purchaser Indemnified Person Parties’ Covered Losses under this Section 9.2(b)(i); and (C) any Covered Losses pursuant to Section 7.2(a9.2(a)(i) that are not satisfied (other than for a breach of or inaccuracy in accordance with the preceding sentence Seller Fundamental Representations or the representations and warranties under Section 3.17), until the aggregate amount of the Purchaser Indemnified Parties’ Covered Losses under Section 9.2(a)(i) exceeds $5,000,000 (the “Deductible”), after which Seller shall be payable by obligated for all the Purchaser Indemnified Parties’ Covered Losses under Section 9.2(a)(i) in excess of the Deductible, subject to Sections 9.2(b)(i)(A) and (B), Section 9.2(b)(ii) and Section 9.2(a)(iv)(III); and
(ii) the cumulative indemnification obligation of Seller upon demandunder (A) Section 9.2(a)(i) (other than for a breach of or inaccuracy in the Seller Fundamental Representations) shall in no event exceed $105,000,000 (the “Cap”), by wire transfer (B) Section 9.2(a)(i) solely as a result of immediately available funds to an account designated a breach of or inaccuracy in writing by such Buyer Indemnified Personthe Seller Fundamental Representations shall in no event exceed the Purchase Price, and (C) Section 9.2(a)(ii) shall in no event exceed the Purchase Price.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (GCP Applied Technologies Inc.)
Indemnification by Seller. (a) From Subject to the limitations of this Article 7, and after in addition to the Closingindemnities provided pursuant to Sections 5.7(e), 5.9(e) and 5.14, but not in duplication thereof, Seller shall indemnify, defend hereby agrees to indemnify and hold harmless Buyer, its Affiliates the Company and the Company Subsidiaries, and their respective officers, employees, directors, agents, successors and assigns and (collectively, the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”"BUYER INDEMNITEES") from and against any and all Losses loss, liability, claim, obligation, damage or deficiency (any "DAMAGE") of every kind, nature or description asserted against, to any Buyer Indemnitee arising out of or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result resulting from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement; (ii) Seller's failure to perform in any material respect any covenant or agreement set forth in this Agreement; and (iii) any cost or expense (including reasonable legal and other professional fees and expenses) (any "COST"), incurred by any Related Buyer Indemnitee in connection with any of the foregoing indemnification obligations of Seller or the enforcement by any Buyer Indemnitee of the provisions of this Section 7.1.
(b) Seller shall have no liability to any Buyer Indemnitee for indemnification under any provision of this Agreement or any exhibit or certificate delivered hereunderunless written notice specifying in reasonable detail the nature and amount of an Indemnification Claim is given to Seller prior to the second anniversary of the Closing Date; provided, however, that such time limitation shall not apply to (i) any Indemnification Claim for a breach of Section 3.4 or 3.5, for which an Indemnification Claim may be made or brought against Seller at any time; (ii) any Indemnification Claim for a breach of Section 3.9 or pursuant to Section 5.9(e), for which an Indemnification Claim may be made or brought against Seller through the thirtieth day after the date upon which the liability giving rise to such Indemnification Claim may relate is barred by all applicable statutes of limitation; or (iii) any Indemnification Claim that exists prior to the second anniversary of the Closing Date and that has been the subject of a written notice specifying in reasonable detail the event nature of the claim delivered by Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller prior to the second anniversary of the Closing Date.
(c) Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer Indemnitees for indemnification under this Agreement only to the extent the cumulative total of Damages and Costs for all Indemnification Claims exceeds $150,000 (such Losses that arise out ofdeductible does not apply to Section 5.14 litigation, relate to or result from (aSection 5.9(e) tax obligations and Section 5.7(e) employee matters), and in no event shall Seller be liable for indemnification under this Agreement for any combination by Buyer amount in excess of any Pre-Closing Product with any other product or service$10,000,000; provided, (b) the adaptation or modification by Buyer however, no limitation of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, liability provided in this paragraph (c) the misuse shall apply to any Damage or Cost arising out of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising resulting from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising common law fraud in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Uniontransactions contemplated by this Agreement.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Investors Financial Services Group Inc)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend agrees to indemnify and hold harmless Buyer, its Affiliates Affiliates, and their respective successors officers, directors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) employees, harmless from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued paid, directly or indirectly byindirectly, such Buyer Indemnified Person that arise as a result of or arising out of, relate to or result from or as a consequence of any of the following:
(i) the any breach or inaccuracy default in the performance by the Seller of any covenant or agreement of the Seller contained in this Agreement or any related document executed pursuant hereto;
(ii) any breach of warranty or inaccurate or erroneous representation made by the Seller herein (unless such breach of warranty or inaccurate or erroneous representation was actually known by a Buyer Representative after reasonable inquiry to exist prior to the date of this Agreement); provided, however, that Seller shall be responsible for any breach of any representation or warranty that was made as of Seller contained the date of this Agreement (unless made as of another prior designated date, then as of such date) (X) reflected in any updating to the Schedules that was made after the date of this Agreement unless related to any Purchase Price Adjustment Matters or (Y) regardless of any knowledge of a Buyer Representative obtained after the date of this Agreement, in either case, notwithstanding that Closing has occurred;
(iii) the failure of the Seller to fully pay and discharge as and when same are due the Retained Liabilities; and
(iv) without limiting the generality of clause (iii), all Taxes or other Losses that Buyer becomes liable for as a result of the failure to file any Related Agreement applicable bulk sales notices or pay any exhibit of Seller’s Taxes.
(b) The Seller shall reimburse the Buyer for any Losses directly arising from an event or certificate delivered hereundercircumstance to which the foregoing indemnities relate; provided, however, in that Buyer acknowledges that the event afore-described indemnification responsibilities of the Seller hereunder shall be, notwithstanding the prior terms hereof, limited as follows:
(i) Buyer Indemnified Persons shall have no claim for indemnification under Section 8.3(a)(ii) until the aggregate amount of all Losses, damages and expenses incurred which would otherwise be entitled subject to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i8.3(a)(ii) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer exceeds $11,175 then only to the extent of such excess, but in no event shall the aggregate amount of all Losses subject to indemnification under Section 8.3(a)(ii) exceed $372,500; provided, however, that arise the limitations set forth in this Section 8.3(b)(i) shall not apply to any Losses resulting from or arising out of, relate to directly or result from indirectly, (aA) any combination by Buyer Special Claims, as to which Seller shall have liability for the entire amount of any Pre-Closing Product with any other product or service, (b) such Loss up to the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller Purchase Price or (dB) claims arising from any actual fraud on the part of Seller’s compliance with specifications and directions provided by Buyer to Seller;, as which Seller shall have liability for the entire amount of such Loss without limitation; and
(ii) Seller will be entitled to receive as a credit against any indemnification amount owing to Buyer hereunder an amount equal to the breach or non-fulfillment ofnet proceeds of any insurance policy actually received by Buyer for any Loss for which Seller agreed to indemnify Buyer under this Section 8.3. To the extent Buyer has obtained insurance coverage for matters occurring prior to the Effective Time, or non-compliance withat the request of Seller, any agreement, obligation or covenant of Seller or any of Buyer agrees to make a claim with its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action carrier with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior such Loss. Nothing contained herein will have the effect of requiring Buyer to the Closing;
(v) any Taxes of any kind relating acquire such coverage. Any claims paid to or arising in connection with the transfer of the Acquired Assets Buyer pursuant to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing this Article VIII shall be treated as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software a reduction in the United States, Canada and the European UnionPurchase Price.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VIIARTICLE VI, Seller shall indemnify and defend each of Buyer and its Affiliates (including the Company) 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 contained in this Agreement or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement (other than in respect of Section 3.23, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to ARTICLE V), as of the date such representation or warranty was made (except for representations and warranties that expressly relate to a Buyer Indemnified Person is entitled specified date, the inaccuracy in or breach of which will be determined with reference to recover such specified date);
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in ARTICLE V, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to ARTICLE V);
(c) any Transaction Expenses or Indebtedness of the Company outstanding as of the Closing to the extent not deducted from the Purchase Price in the determination of the Estimated Purchase Price pursuant to Section 7.2(a)(i2.02(c) shall be satisfied by reducing or disbursed from the Holdback Reserve Amount that would otherwise be payable to Seller Purchase Price Adjustment Escrow Fund pursuant to Section 2.3. Any Losses that become 2.04(e);
(d) any Clawback PPP Loan Amount and any PPP Expense Amount;
(e) any failure to obtain the approvals, consents or waivers as contemplated by Section 7.06(a) or the invention assignment agreements as contemplated by Section 7.06(c); or
(f) any amounts payable to a Buyer Indemnified Person any Persons pursuant to, resulting from or arising in connection with, the ICP Program, including any failure to obtain the letter agreements as contemplated by Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person7.06(d).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Sunworks, Inc.)
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, indemnify and defend Buyer and hold harmless Buyer, its Affiliates and their respective stockholders, members, managers, officers, directors, employees, agents, successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified PersonsIndemnitees”) from against, and against shall hold them harmless from, any and all Losses losses, damages, claims (including third party claims), charges, interest, penalties, Taxes, costs and expenses (including legal, consultant, accounting and other professional fees, and fees and costs incurred in enforcing rights under this Section 10.2, but excluding any special, indirect, incidental, consequential, exemplary and punitive damages, and any damages associated with any lost profits or lost opportunities (including loss of every kindfuture revenue, nature income or description asserted againstprofits, diminution of value or sustainedloss of business reputation)) (collectively, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result “Losses”) resulting from or incurred by any Buyer Indemnitee as a consequence of any of the followingproximate cause of:
(i) the breach or inaccuracy failure of any representation and warranty made by Seller contained in Article IV of this Asset Purchase Agreement and the Seller Closing Certificate to be furnished to Buyer in connection with the transactions contemplated by this Asset Purchase Agreement to be true and correct in all respects as of the date of this Asset Purchase Agreement and as of the Closing Date as though such representation and warranty were made as of the Closing Date (except in the case of representations and warranties which by their terms speak only as of a specific date or warranty dates, which representations and warranties shall be true and correct as of such date);
(ii) any breach of any covenant or agreement of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Asset Purchase Agreement;
(iii) any Excluded Liability;
(ivi) the ownershipany fees, possession expenses or operation of the Acquired Assets other payments incurred or owed by Seller to any agent, broker, investment banker or any Action with respect to other firm or arising from any Acquired Intellectual Property delivered, installed person retained or used prior to the Closing;
(v) any Taxes of any kind relating to or arising employed by it in connection with the transfer of transactions contemplated by this Asset Purchase Agreement and the Acquired Assets to Buyer;Ancillary Agreements; and
(viiv) violation of fraudulent transfer Laws or the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any bulk sales Laws applicable or similar Laws by Seller in connection with the transactions contemplated by this Asset Purchase Agreement. Notwithstanding anything herein to the import contrary, in determining the amount of any Losses with respect to a breach of a representation or export warranty by Seller for purposes of the Acquired Software in the United StatesSection 10.2(a)(i), Canada such representations and the European Unionwarranties shall be read without regard to any materiality qualifier, including any reference to material adverse effect (except where any such provision requires disclosure of lists of items of a material nature or above a specified threshold), contained therein.
(b) Subject Seller shall not be liable for any Loss or Losses pursuant to Section 10.2(a)(i) (“Buyer Warranty Losses”) (i) unless and until the other terms aggregate amount of all Buyer Warranty Losses incurred by the Buyer Indemnitees exceeds two hundred fifty thousand Dollars ($250,000), in which event Seller shall be liable for all Buyer Warranty Losses from the first dollar.
(c) The maximum aggregate liability of Seller under Section 10.2(a)(i) and conditions of this Article VIISection 10.2(a)(ii) shall not exceed the Cap Amount; provided however the Cap Amount shall not apply to, or otherwise reduce or limit a Buyer’s recovery for, any Losses that a Buyer Indemnified Person is entitled to recover resulting from or in connection with indemnification claims made pursuant to Section 7.2(a)(i10.2(a)(ii) for breaches of Seller’s obligations set forth in Sections 6.2(d), 6.2(e), 6.2(i), 6.8(a) and 6.9(a) (the “Seller Fundamental Covenants”). The maximum aggregate liability of Seller with respect to Losses resulting from or in connection with indemnification claims made pursuant to Section 10.2(a)(i) and Section 10.2(a)(ii), as limited by the foregoing sentence, and Section 10.2(a)(ii) in respect of the Seller Fundamental Covenants shall not exceed the Purchase Price. Notwithstanding anything to the contrary elsewhere in this Asset Purchase Agreement, nothing contained in Sections 10.2(b) and 10.2(c) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable deemed to Seller pursuant to Section 2.3. Any Losses that become payable to limit or restrict in any manner any rights or remedies which Buyer has, or might have, at Law, in equity or otherwise, based on fraud or a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personwillful misrepresentation hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Indemnification by Seller. (a) From and after the ClosingClosing Date (and from and after the date of this Agreement with respect to Section 10.2(f)), Seller shall shall, subject to the provisions of this Article X, indemnify, defend and hold harmless Buyerthe Purchaser Parties, its Affiliates Investor B and their respective successors Affiliates, shareholders, members, partners, officers, directors, employees and assigns and the respective Representatives of each of the foregoing agents (collectively, the “Buyer Indemnified PersonsPurchaser Indemnitees”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, that may be suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise incurred by any Purchaser Indemnitee arising out of, relate to or result resulting from or as a consequence of any of the followingrelating to:
(ia) the breach or inaccuracy of any Seller Property Representation as of the date of this Agreement or as of the Closing Date (or, in the case of any such representation or warranty that is expressly limited by its terms to the date hereof or another date, the inaccuracy as of such date), provided that each such representation or warranty shall be read disregarding any Seller Material Adverse Effect, materiality or similar qualification;
(b) the inaccuracy of any Seller Entity Representation as of the date of this Agreement or as of the Closing Date (or, in the case of any such representation or warranty that is expressly limited by its terms to the date hereof or another date, the inaccuracy as of such date), provided that each such representation or warranty shall be read disregarding any Seller Material Adverse Effect, materiality or similar qualification (other than in the case of clause (ii) of Section 3.7(b));
(c) the inaccuracy, as of the date of this Agreement or the Closing Date, of any Special Seller Representation;
(d) the failure by Seller to perform or fulfill any covenant or agreement of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(iie) the breach or non-fulfillment ofIndebtedness issued by SUSA pursuant to an Indenture, or non-compliance withdated November 6, any agreement1996, obligation or covenant between SUSA and The First National Bank of Seller or any of its Affiliates contained in this Agreement or in any Related AgreementChicago;
(iiif) Claims asserted by any Excluded Liability;Outside Partners of SUSA or New SUSA by reason of —
(ivi) the ownershipLP Offer, possession or operation of the Acquired Assets by Seller or including Claims arising from any Action Restraint issued with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind LP Offer and Claims relating to or arising in connection with the transfer information contained in the Transaction Information Statement (including information regarding tax matters contained therein); provided that Seller shall not have any liability with respect to Claims relating to or arising in connection with violations or alleged violations of the Acquired Assets US federal or state securities Laws by Investor A in connection with the LP Offer or as a result of or arising from any action taken or failed to Buyer;be taken by Investor A in connection with or relating to the LP Offer and in respect of any information included or incorporated by reference in the Confidential Private Offering Memorandum, including any documents or information incorporated by reference therein, other than information provided to Investor A in writing by the Seller for inclusion in the Confidential Private Offering Memorandum; or
(viii) any actions taken or failed to be taken by any Seller Group Entity prior to or at the failure Closing, including any Claims regarding the Tax consequences of the Transactions (including transactions contemplated by the Reorganization Agreement), to Outside Partners of SUSA or New SUSA.
(g) Payments required under any Tax Protection Agreement by reason of actions taken or failed to be taken by any Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement Group Entity either prior to the Closing or at the Closing, including without limitation any actions taken by any Seller Group Entity in connection with the Restructuring, the Distribution Transaction or the other transactions and events contemplated by Exhibit C or the Reorganization Agreement;
(bh) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; orCalifornia Litigation;
(viii) payments of Taxes required as a result of (i) the failure by Seller to pay Taxes that are the responsibility of Seller as provided in Section 5.11, (ii) the inaccuracy, as of the date of this Agreement or as of the Closing Date, of the Seller representations set forth in Section 3.10(a), or (iii) any liability that a Core Subsidiary has for Taxes of any person other than such Core Subsidiary (A) under Treasury Regulation Section 1.1502-6 (or any similar provision of its Affiliates state, local or foreign law), or (B) as a transferee or successor; and
(j) any liability, obligation, Tax, fine or penalty under, in connection with, or relating to comply a Plan maintained or contributed to by a Seller Group Entity (other than a New SUSA Plan) or any entity deemed to be a single employer within the meaning of Section 414(b), (c), (m), (n) or (o) of the Code with any Laws applicable such Seller Group Entity;
(k) the matters and subject to the import or export of the Acquired Software in the United States, Canada and the European Union.terms set forth on Exhibit J; and
(bl) Subject Prior Period Insured Claims subject to the limitations and other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to provisions set forth in Section 7.2(a)(i5.10(c) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance (with the preceding sentence shall be payable indemnification in this clause (l) relating solely to Losses incurred by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personthe Purchaser Parties).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Extra Space Storage Inc.)
Indemnification by Seller. (a) From Subject to the terms and conditions of this ARTICLE 7, from and after the Closing, Seller shall indemnify, defend indemnify and hold harmless Buyer, its Affiliates the Company, each of their respective Subsidiaries, each of their respective Affiliates, and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified PersonsIndemnitees”) from and against the entirety of any Losses that any Buyer Indemnitee may suffer or incur (including any Losses they may suffer or incur after the end of any applicable survival period, provided that an indemnification claim with respect to such Loss is made pursuant to this ARTICLE 7 prior to the end of any applicable survival period and all Losses of every kindsuch Loss is reasonably foreseeable at the time such indemnification claim is made) resulting from, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise arising out of, relate to or result from or as a consequence of caused by (a) any of the following:
(i) the breach or inaccuracy of any representation or warranty made by Seller in ARTICLE 3 or made by Seller or the Company in any certificate or other writing delivered pursuant hereto, (b) any breach of Seller contained any covenant or agreement of Seller, the Company, or any of its Subsidiaries in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) any claim made by any Common Shareholder relating to such Person’s rights with respect to the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or Consideration, (d) Sellerany claim made by any Preferred Shareholder relating to such Person’s compliance rights with specifications and directions provided by Buyer respect to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant aggregate amount payable to the Preferred Shareholders upon the election of Seller to exercise its redemption rights with respect to the Preferred EMC Units pursuant to the LLC Agreement (including without limitation, the calculation of the Redemption Amount, including any interest accrued on the Preferred EMC Units prior to the Closing), (e) any Losses attributable to the failure of any Common Shareholder to execute and deliver the Support Agreement or consent to this Agreement and the transactions contemplated hereby, (f) any claim by or purportedly on behalf of any holder or former holder of any membership or other ownership interests of the Company or rights to acquire any membership or other ownership interests of the Company in connection with any of the transactions contemplated hereby that constitute Proceedings alleging violations of fiduciary duty, (g) any Loss relating to or arising out of the Trio Spinout Transaction or the Trio Business, including without limitation the Termination Letter from Jxxxxxxx Xxxx of Pxxx Americas, LLC dated April 26, 2016; (h) any Loss relating to or arising out of a dispute relating to the covenants and agreements under Section 2.08 of the STM Purchase Agreement, (i) any Loss relating to or arising out of the Company’s or any of its Affiliates contained in this Agreement Subsidiaries’ failure, or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownershipalleged failure, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, fully with Anti-Fraud and Anti-Corruption Laws or perform any of its obligations underAntiboycott Laws, (aj) other than the Existing License Agreement Buyer Assumed Liability, any and all Transaction Expenses and Debt as of immediately prior to the Closing that is unpaid upon the Closing, in each case, to the extent not already covered by the Transaction Expense Amount or (b) the Surviving Existing License Agreement Provisions following Debt Amount as paid on the Closing as Date, or included on the schedule of Permitted Indebtedness set forth herein; or
(vii) the failure of Seller on Schedule 1.2(b), or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover otherwise satisfied pursuant to Section 7.2(a)(i1.8; (k) shall be satisfied by reducing any Loss relating to the Holdback Reserve Amount that would otherwise be payable matters set forth in the Letter from ABS Global, Ltd. April 22, 2016; or (l) any Loss relating to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonAlpha Satcom Purchase Order MTN0008266.
Appears in 1 contract
Samples: Interest Purchase Agreement (Global Eagle Entertainment Inc.)
Indemnification by Seller. Subject to Section 7.3, Seller agrees to indemnify, defend, and hold Buyer and its affiliates harmless from and against, and to reimburse Buyer with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs, and expenses (including reasonable attorneys' fees) ("Indemnifiable Amounts") of every nature whatsoever incurred by Buyer by reason of or arising out of or in connection with (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted againstbreach, or sustainedany claim (including claims by parties other than Buyer) that if true, incurredwould constitute a breach, suffered by Company or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy Seller of any representation or warranty of Company or Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownershipcertificate delivered to Buyer pursuant to Section 1.5.1(c), possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License failure, partial or total, of Company or Seller to perform any agreement or covenant required by this Agreement Provisions following to be performed by it or them, or (c) any tax liability or any assertion of a Tax Authority that, if true, would result in a tax liability of Company relating to any period of time prior to and through the Closing as that is not disclosed in the Financial Statements, and in the case of clause (a) above, without giving effect to "materiality" limitations or references to "material adverse effect" set forth herein; or
(vii) therein, if any, solely for purposes of determining the failure amount of any Indemnifiable Amounts, but not the existence of any breach of any representation or warranty. The obligations of Seller to indemnify Buyer shall be determined without regard to any right to indemnification to which Seller may have in any capacity with Company (other than under Section 7.1.2 below) and Seller shall not be entitled to any indemnification from Company for Indemnifiable Amounts paid hereunder. There shall be no right of contribution from Company or any of its Affiliates successor thereto with respect to comply with any Laws applicable Indemnifiable Amounts that Seller becomes obligated to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject pay pursuant to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From Seller and after the ClosingHealthPlan, Seller jointly and severally, shall indemnify, defend indemnify Purchaser against and hold it harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of from (each of the foregoing (the “Buyer Indemnified Persons”) from following, all and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:which shall be referred to as "Purchaser's Indemnifiable Claims" hereunder):
(i) the any and all loss, damage, liability, obligation, judgment, claim or deficiency incurred by or imposed upon Purchaser resulting or arising out of any misrepresentation or breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreementinstrument, certificate, agreement or other writing delivered by or on behalf of Seller or HealthPlan pursuant to this Agreement or in connection with the transactions contemplated herein;
(ii) any and all loss, damage, liability, obligation, judgment, claim or deficiency incurred by or imposed upon Purchaser resulting from or arising out of any inaccuracy in or breach or nonfulfillment of any covenant, agreement or obligation made or incurred by Seller or HealthPlan herein or in any other agreement, instrument or document delivered by or on behalf of Seller or HealthPlan in connection herewith;
(iii) any Excluded Liabilityimposition (including by operation of law) or attempted imposition by a third party upon Purchaser of any Liability of Seller which Purchaser has not specifically agreed to assume pursuant to Section 2.2 of this Agreement;
(iv) any Liability (except for an Assumed Obligation described in Section 2.2 for which Purchaser shall be liable) or other obligation incurred by or imposed upon Purchaser resulting from the ownership, possession or operation failure of the Acquired Assets by Seller or parties to comply with the provisions of any Action with respect law relating to or arising from any Acquired Intellectual Property delivered, installed or used prior bulk transfers which may be applicable to the Closing;transaction herein contemplated (which compliance is hereby waived by Purchaser and acknowledged by Seller); and
(v) any Taxes of and all loss, damage, liability or expense incurred by or imposed upon Purchaser resulting from any kind claim, litigation, obligation, judgment, action, investigation or proceeding relating to Seller's MCO Business or arising in connection with its operations prior to the transfer time of the Acquired Assets to Buyer;Closing.
(vi) the failure of Seller any and all costs and expenses (including reasonable legal and accounting fees) related to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionforegoing.
(b) Subject Purchaser's right to seek recourse against Seller or HealthPlan under this Section 9.3 on account of any Purchaser Indemnifiable Claims referred to in Paragraph 9.3(a)(i) above shall be limited as follows:
(i) With regards to an Indemnifiable Claim arising from Seller's failure to comply with the "fire wall" requirements of the Ohio BWC [as referenced in Section 5.4(b)], Purchaser shall not seek recourse against, and shall not recover from Seller or HealthPlan under this Section 9.3 on account thereof unless and until any such Indemnifiable Claim, when aggregated with all other Purchaser Inidemnificable Claims also arising from the Ohio BWC "fire wall" requirements equals or exceeds $10,000.00. Additionally, no claim arising from the Ohio BWC "fire wall" requirements will be indemnificable unless the action of the BWC giving rise to the claim occurs during the period beginning with the 30th day after closing and ending on December 31, 2000, and Seller's receives notice thereof during such period. At such time as the aggregate amount of such Purchaser Indemnifiable Claims arising from Seller's failure to comply with the Ohio BWC "fire wall" requirements equals or exceeds $10,000.00, the Purchaser may assert all such prior and all future Purchaser's Indemnifiable Claims relating to "fire wall" requirements against the Seller and/or HealthPlan under this Section 9.3.
(ii) With regards to any and all Purchaser Indemnifiable Claims identified in Paragraph 9.3(a)(i) above (a "Basket Claim"), Purchaser shall not seek recourse against, and shall not recover from Seller or HealthPlan under this Section 9.3 on account of such Basket Claims unless and until any such Basket Claim, when aggregated with all other terms Basket Claims, equals or exceeds $15,000.00 and conditions at such time as the aggregate amount of such Basket Claims equals or exceeds $15,000.00, the Purchaser may assert all such prior and/or future Basket Claims against the Seller and/or HealthPlan under this Section 9.3. Purchaser's Indemnifiable Claims identified in Paragraphs 9.3(a)(ii), (iii), (iv) and (v) shall not be subject to the limitations set forth in this paragraph.
(iii) Notwithstanding the provisions of subparagraphs (i) and (ii) above, in the event any Liability (other than an Assumed Obligation) of Seller would attach to the Purchased Assets and be a lien or encumbrance thereon, Seller and HealthPlan, jointly and severally, shall be responsible for the payment of such Liability and the corresponding lien on the Purchased Assets (which would represent a breach of certain representations and warranties by Seller and/or HealthPlan under this Agreement) and Purchaser's right to indemnification from Seller and HealthPlan therefore shall not be subject to the restrictions and limitations otherwise contained in subparagraphs (i) or (ii) of this Article VIIParagraph (b).
(c) Notwithstanding anything stated herein, the total indemnity obligation of Seller and HealthPlan hereunder in respect of any Losses and all Purchaser Indemnifiable Claims shall be limited to the Purchase Price, and the Purchaser agrees that a Buyer Indemnified Person is entitled to recover it shall have no further recourse against Seller or HealthPlan in excess of the Purchase Price.
(d) Any claim for indemnification by Purchaser against Seller or HealthPlan pursuant to Section 7.2(a)(i9.3(a)(i) resulting or arising out of any misrepresentation, or breach of, any misrepresentation or warranty contained in this Agreement must be made within the applicable survival period set forth in Sections 9.1(a), 9.1(b) and 9.1(c), or be forever barred. Any claim for indemnification by Purchaser against Seller or HealthPlan pursuant to Paragraph 9.3(a)(ii) resulting from or arising out of any inaccuracy in or breach or nonfulfillment of any covenant, agreement or obligation made or incurred by Seller or HealthPlan herein or in any other agreement, instrument or document delivered by or on behalf of Seller or HealthPlan in connection with this Agreement [but excluding any claim or indemnification arising out of the Covenant not-to-compete (Section 8.1)] shall be made on or before the second anniversary of the Closing or be forever barred. Any claim for indemnification for costs and expenses as anticipated in Paragraph 9.3(a)(vi) shall be satisfied by reducing subject to the Holdback Reserve Amount that would otherwise be payable same time limits as applied to Seller the underlying cause or basis for indemnification. The time limits provided in this Section 9.3(d) shall not apply to claims for indemnification pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person 9.3(a)(iii), (iv) or (v), or pursuant to Section 7.2(a9.3(a)(vi) that are not satisfied for costs and expenses relating to claims thereunder.
(e) Except as set forth in accordance with the preceding sentence Section 9.1 and Section 9.3(b), (c) and (d), nothing in this Section 9.3 or elsewhere in this Agreement shall be payable by Seller upon demandconstrued to limit the amount to which, or the time which, by wire transfer reason of immediately available funds set-off or otherwise, the Purchaser may recover from Seller or HealthPlan pursuant to an account designated in writing by such Buyer Indemnified Personthis Agreement resulting from the breach or violation of any representation, warranty, covenant, agreement or undertaking of Seller or HealthPlan contained herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Healthplan Services Corp)
Indemnification by Seller. (a) From and after Subject to the Closinglimitations contained in this Article IX, Seller shall indemnifyhereby agrees to indemnify Buyer and its officers, defend directors, employees, agents and hold harmless Buyershareholders in his, her or its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing capacity as such (collectively, the “Buyer Indemnified PersonsParties”) and defend and hold them harmless against any loss, liability, deficiency, damage, fine, penalty, expense or cost, including settlement costs, court costs and the reasonable expenses of legal counsel (which shall be limited to one primary law firm and, where applicable, one law firm as local counsel per indemnifiable matter) (but excluding incidental, special, consequential, exemplary, punitive, lost profits and any other similar types of damages, except to the extent such damages are paid to a third party following a final adjudication or dispute resolution) (collectively, “Losses”), which the Buyer Indemnified Parties may suffer, sustain or become subject to from and against any and all Losses of every kindafter the Closing Date, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence result of (i) any breach of any of the following:
(i) representations and warranties of Seller contained in Article II of this Agreement as of the date of this Agreement or as of the Closing Date; provided that, for indemnification with respect to a breach or inaccuracy as of any the Closing Date, the breached representation or warranty must be materially breached as of the Closing Date, (ii) any breach of, or failure to perform, any agreement or covenant of Seller contained in this Agreement, any Related Agreement or (iii) any exhibit Excluded Liability (collectively, “Buyer Losses”).
(b) No claim for indemnification under Section 9.02(a)(i) shall be made by a Buyer Indemnified Party with respect to any breach resulting in an individual item of Loss, or certificate delivered hereunder; providedrelated items of Losses arising out of the same facts and circumstances, however, in unless and until the event amount of such Losses suffered by the Buyer Indemnified Persons would otherwise Parties exceeds $25,000 (the “Threshold”), at which point a claim can be made for the entire amount of such Losses. Further, no individual item which is less than the Threshold, or series of related items which in the aggregate are less than the Threshold, shall be considered when determining whether the Deductible has been exceeded. Notwithstanding the foregoing, the Threshold shall not apply to any claim for Indemnification resulting from any claim under Sections 2.01, 2.02 and 2.06(a), any Excluded Liability or any Purchase Price Adjustment (collectively, the “Unlimited Indemnification Claims”), and all Losses claimed for Unlimited Indemnification Claims shall be indemnified by Seller pursuant to this Section 9.02.
(c) No claim for indemnification under Section 9.02(a)(i) shall be made by a Buyer Indemnified Party unless and until the aggregate amount of all Losses incurred or suffered by the Buyer Indemnified Parties exceeds $500,000 (the “Deductible”). In the event that the aggregate amount of all Losses of all Buyer Indemnified Parties exceeds the Deductible, such Buyer Indemnified Parties shall be entitled to indemnification for Lossesany Losses under Article IX only for the amount by which the aggregate amount of all such Losses exceeds the Deductible. Notwithstanding anything set forth in this Section 9.02(c) to the contrary, Seller the Deductible shall not be obligated apply to Losses for Unlimited Indemnification Claims.
(under this Section 7.2(a)(id) or otherwise) The maximum aggregate obligation of Seller to indemnify the Buyer Indemnified Persons or otherwise be liable to Parties for Buyer Losses under Section 9.02(a)(i) shall not exceed $20,000,000 (the “Cap”). Notwithstanding anything set forth in this Section 9.02(d) to the extent of such contrary, the Cap shall not apply to Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionUnlimited Indemnification Claims.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. Subject to the provisions of Section 5.3 hereof, Seller shall indemnify Buyer against and hold Buyer harmless from any and all loss, cost, damage or expense arising out of or resulting from (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature breach or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence incorrectness of any of the following:
(i) the breach representations, warranties or inaccuracy of any representation or warranty covenants of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; providedthe schedules referred to herein, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following Seller's or the Closing as set forth herein; or
(vii) the Company's failure of Seller or any of its Affiliates to comply with any Laws applicable laws (applicable to the import or export of the Acquired Software in the United States, Canada this Agreement and the European Union.
transactions contemplated herein), or (bc) Subject the assertion against the Company or Buyer of any Existing Liability, or (iv) the reasonable expenses or costs incurred by Buyer, including reasonable attorneys' fees, in connection with investigating, attempting to correct, or defending against the other terms and conditions assertion of this Article VIIany claims, any Losses that a liens or charges against which Buyer Indemnified Person is entitled to recover indemnity pursuant to Section 7.2(a)(ithe foregoing provisions, provided that (i) Buyer shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable give prompt notice in writing to Seller pursuant of the facts and circumstances giving rise to Section 2.3. Any Losses any claims by Buyer under this Section, (ii) subject to the limitations of any contract of insurance, Buyer shall tender to Seller the opportunity to manage and control any defense against any such claim, it being understood that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied may participate at its expense in accordance with the preceding sentence shall be payable any such defense assumed by Seller upon demandand that the assumption of management and control of any such defense shall not, itself, constitute any admission by wire transfer Seller of immediately available funds liability to an account designated Buyer or to any other entity, (iii) Buyer shall cooperate reasonably with Seller in writing by the prosecution of any such defense, and (iv) Buyer Indemnified Personshall not compromise or settle any such claim without the prior written consent of Seller which shall not be unreasonably withheld.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ameritrade Holding Corp)
Indemnification by Seller. (a) From and after Following the Closing, but subject to the provisions of this Article 7, Seller shall indemnify, defend and hold harmless BuyerBuyer and its Affiliates, its Affiliates and their respective successors officers, directors, employees and assigns and the respective Representatives of each of the foregoing agents (the collectively, “Buyer Indemnified PersonsIndemnitees”) from and against against, and shall compensate and reimburse each of the Buyer Indemnitees for, any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly incurred by any Buyer Indemnitee or indirectly by, such to which any Buyer Indemnified Person that arise Indemnitee may otherwise become subject arising out of, relate to of or result from related to:
(a) any inaccuracy in or as a consequence breach by Seller of any of the following:
representations or warranties made by Seller: (i) in this Agreement or (ii) in any certificate delivered on behalf of Seller pursuant to Section 2.4.2(a)(ii) (in each case of the foregoing clauses (i) and (ii), without giving effect to any “material”, “in all material respects”, and “Material Adverse Effect” qualification limiting the scope of such representation or warranty, but solely for purposes of determining the amount of Losses and not for purposes of determining whether a breach has occurred);
(b) any failure of Seller to perform or inaccuracy any breach by Seller of any representation of its covenants, agreements or warranty of Seller obligations contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iiic) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(vd) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform with any of its obligations under, (a) applicable bulk sales statute in connection with the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth hereintransactions contemplated hereby; or
(viie) the any failure of Seller to pay transfer taxes or Apportioned Obligations allocated to Seller under Section 5.13.1; provided, however neither Seller nor any of its Affiliates shall have any indemnification obligation hereunder with respect to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled arise solely out of, or relate solely to, the decision of the Office of the Inspector General of the U.S. Department of Health & Human Services ("OIG") to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing impose all or part of the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance obligations of Buyer's existing Corporate Integrity Agreement with the preceding sentence OIG or any new corporate integrity agreement to Buyer or its Affiliates following consummation of the transactions contemplated by this Agreement; provided that the foregoing exclusion shall be payable by not apply to any Losses as a result of the activities of any Seller upon demand, by wire transfer Indemnitee prior to the consummation of immediately available funds to an account designated in writing by such Buyer Indemnified Personthe transactions hereunder.
Appears in 1 contract
Indemnification by Seller. (a) From Relating to Environmental and after Related --------------------------------------------------------------- Matters. In addition to and not in limitation of Seller's indemnification ------- obligations set forth in Section 9.3, but subject to the Closinglimitations contained in Section 5.10 above, Seller shall indemnify, defend indemnify and hold harmless the Buyer, its Buyer's Affiliates and their respective Buyer's successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) harmless from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that Indemnification Claims which arise out of, relate from and to or result from or as a consequence of any of the followingextent they are attributable to:
(a) (i) the breach Company's failure, at any time prior to Closing, to obtain all permits required by all Environmental Laws, or inaccuracy to comply in any material respect with all terms and conditions of any representation or warranty of Seller contained in this Agreementthe permits required by, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of Company's failure at any Pre-time prior to Closing Product to comply in an application for which it was not designed by Seller any material respect with, all Environmental Laws; or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach Company's failure, at any time prior to Closing, to comply in any material respect with any applicable covenant running with any real property owned or non-fulfillment ofleased at any time prior to the Closing by the Company that relates to the protection of human health, safety or non-compliance withthe environment including, without limitation, any agreement, obligation or such covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreementthat relates to protection from Hazardous Materials;
(b) any Environmental Claim (i) against the Company, the basis of which arose prior to the Closing; (ii) against any person whose liability for any Environmental Claim the Company may have retained or assumed at any time prior to the Closing, either contractually or by operation of law, but only to the extent the basis for such claim arose prior to the Closing; or (iii) against, or in respect of, any Excluded Liability;
(iv) real or personal property or operations which at any time prior to the ownershipClosing were owned or leased, possession in whole or operation of in part, by the Acquired Assets by Seller or any Action with respect Company, but only to or arising from any Acquired Intellectual Property delivered, installed or used the extent the basis for such claim arose prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vic) the failure existence of Seller to comply withHazardous Materials upon, about or perform beneath any of its obligations under, (a) the Existing License Agreement real property owned or leased at any time prior to the Closing by the Company (whether or (b) not caused, or contributed to, by the Surviving Existing License Agreement Provisions following Company and including Hazardous Materials that migrated on to the real property from an off-site source prior to the Closing), or migrating or threatening to migrate from any real property owned or leased at any time prior to the Closing as set forth hereinby the Company, or the existence of any Environmental Claim or violation of any Environmental Law pertaining to any real property owned or leased at any time prior to the Closing by the Company, but only to the extent the basis for such claim arose prior to the Closing; or
(viid) with respect to any real property heretofore owned or leased by the failure of Seller Company any acts, omissions or any of its Affiliates to comply with any Laws applicable breaches occurring prior to the import Closing of any representations, warranties, covenants, obligations or export of the Acquired Software in the United Statesagreements (including, Canada and the European Union.
(b) Subject without limitation, indemnity agreements relating to environmental matters or claims relating to the foregoing) by the Company. The foregoing indemnification shall include all reasonable expenses of investigation and monitoring, reasonable costs of containment, abatement, removal, repair, cleanup, restoration and remedial work, penalties and fines, reasonable attorneys' fees and disbursements, and other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Personreasonable response costs.
Appears in 1 contract
Samples: Asset Purchase Agreement (Salem Communications Corp /Ca/)
Indemnification by Seller. (a) From Upon the terms and after subject to the Closingconditions set forth in Sections, 2.28 and 4.3 hereof and this Section 4.1, Seller shall agrees to indemnify, defend defend, protect, save and hold harmless Buyerthe Buyer Indemnitees (or any Buyer Indemnitee) (as such term is hereinafter defined) against, its Affiliates and their respective successors and assigns and will reimburse the respective Representatives of each of the foregoing Buyer Indemnitees (the “or any Buyer Indemnified Persons”Indemnitee) from and against on demand for, any and all Losses of every kind(as such term is hereinafter defined) made or incurred by or asserted against the Buyer Indemnitees (or any Buyer Indemnitee), nature or description asserted againstat any time after the Closing Date, or sustained, incurred, suffered or accrued directly or indirectly byindirectly, such Buyer Indemnified Person that arise arising out of, relate to related to, caused by, or result resulting from or as a consequence of any of the following:
A. any and all liabilities or obligations of Seller, or claims against or imposed on the Buyer Indemnitees (ior any Buyer Indemnitee) the breach or inaccuracy of any representation nature (whether accrued, absolute, contingent or warranty otherwise and whether a contractual, tax or other type of liability, obligation or claim), unless such liabilities or obligations of Seller were expressly assumed by Buyer pursuant hereto (including, without limitation, those liabilities or obligations of Seller specifically referred to in Section 1.4 hereof); B any inaccuracy, omission, misrepresentation, breach of warranty, or nonfulfillment of any term, provision, covenant or agreement on the part of Seller contained in this Agreementherein, or any inaccuracy or misrepresentation in, or omission from, any Related Agreement certificate or other instrument furnished or to be furnished by Seller to Buyer pursuant hereto;
C. Seller’s failure to comply with the bulk transfer provisions in effect in the state or states in which the Assets are located; and
D. Any of the matters referred to in Schedule 2.24 hereof or in any document referred to therein; in each case, regardless of by whom asserted and even if any such Loss is based on, arises from or is attributable to, in whole or in part, any active or passive participation by the Buyer Indemnitees (or any exhibit or certificate delivered hereunder; providedBuyer Indemnitee), however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer except to the extent attributable to the gross negligence or willful misconduct of such Losses that arise out of, relate to Buyer Indemnitee or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European UnionIndemnitees.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From and after Subject to the Closingterms of this Article 11, Seller shall indemnify, defend indemnify and hold harmless the Buyer, its Affiliates and their respective successors employees, officers, directors, members, managers, shareholders, agents, contractors, attorneys and assigns and the respective Representatives of each of the foregoing representatives (collectively, the “Buyer Indemnified PersonsParties”) harmless from and against against, and agrees to promptly defend any Buyer Indemnified Party from and reimburse any Buyer Indemnified Party for, any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, which such Buyer Indemnified Person that arise out ofParty may at any time suffer or incur, relate to or result from or become subject to, as a consequence result of or in connection with any of the following:
(i) the breach 11.2.1 any untruth or inaccuracy of in any representation or warranty of Seller contained in this Agreementor Kenmore Rohnert, any Related Agreement or any exhibit or certificate delivered hereunder; providedLLC, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated a Delaware limited liability company (under this Section 7.2(a)(i“Kenmore”) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreementother Transaction Document; provided, however, that for purposes of determining an untruth or inaccuracy in any such representation or warranty for purposes of this Section 11.2.1, the representations and warranties of Seller or Kenmore that are limited or qualified by references to “material” or “materiality” or “Material Adverse Effect” or similar qualifications shall be construed as if they were not limited or qualified by such qualifications.
11.2.2 any failure of Selling Parties or Kenmore duly to perform or observe any term, provision, covenant, agreement or condition contained in this Agreement or the other Transaction Documents to be performed or observed by the Selling Parties or Kenmore;
(iii) 11.2.3 except as otherwise provided by and subject to the terms of Sections 3.3 and 3.4 above, any Excluded Liability;
(iv) claim or cause of action by any party arising on or after the ownershipClosing Date against any Buyer Indemnified Party with respect to the obligations of Seller retained by Seller or Kenmore under this Agreement or any of the other Transaction Documents, possession or the operation of the Acquired Assets Business or the Theaters by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used Kenmore prior to the ClosingClosing Date, including any default by Seller under any Lease included in the Purchased Assets arising prior to the Closing Date or any failure of Seller to satisfy any of its liabilities other than the Assumed Liabilities;
(v) 11.2.4 any Taxes claim or cause of action by any owner or licensor of any kind relating point of sale software included in the Purchased Assets (the “POS Software”) to the extent such claim or arising in connection with cause of action arises from the assertion that Seller or its Affiliates does not have the right to assign or transfer of the Acquired Assets right to use such POS Software to Buyer;
(vi) the 11.2.5 any failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of by Seller or any of its Affiliates to comply with any Laws all applicable laws relating to the import or export labor, employment, employment discrimination of the Acquired Software in the United Statesall types, Canada employment practices, pay practices, wages, hours, leave and the European Union.
(b) Subject to the other work breaks, and terms and conditions of employment, including, without limitation, immigration and naturalization laws; or
11.2.6 any material adverse effect on Buyer’s use of or operations at the Leased Premises covered by the Lease for Pearlridge West 16, but only to the extent such material adverse effect (a) arises after the Closing, and (b) is caused solely by reason of the application of the terms of that certain Master Ground Lease Administration Agreement dated April, 2004 by and between the Trustees of the Estate of Xxxxxxx Xxxxxx Xxxxxx and Watercress Associates, LP, LLLP; provided, however, that the foregoing indemnity shall not cover any Losses incurred by any Buyer Indemnified Party arising in connection with any of Buyer’s or any Buyer Indemnified Party’s financing of the transactions contemplated by this Article VIIAgreement or otherwise (including, without limitation, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied breach or default under the terms of any such financing caused by reducing any such inconsistency), whether occurring before or after the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified PersonClosing.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Reading International Inc)
Indemnification by Seller. (a) From and after Subject to the Closinglimitations hereinafter set forth, Seller shall (in its capacity as indemnifying party, an “Indemnitor”) hereby agrees to indemnify, defend and hold harmless BuyerBuyer (in its capacity as indemnified party, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the an “Buyer Indemnified PersonsIndemnitee”) from from, against and against in respect of any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result arising from or as a consequence of any of the following:
related to (i) the any breach or inaccuracy of in any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunderset forth herein; provided, however, that for purposes of determining (A) whether there has been any such breach or inaccuracy or (B) the value of any Losses resulting from any such breach or inaccuracy for purposes of Section 6.4.3 hereof or otherwise, any materiality, Material Adverse Effect (or correlative meaning) limitation or qualification included in the event the Buyer Indemnified Persons would otherwise representation or warranty shall be entitled to indemnification for Losses, Seller shall not be obligated disregarded as though such representation or warranty had been made without such limitation or qualification; (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (dii) Seller’s compliance with specifications and directions provided breach of or failure to fulfill or perform any covenant or agreement to be performed by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
it hereunder; (iii) any Excluded Liability;
breach or inaccuracy in any representation or warranty of Teleflex or the Holding Company set forth in the IP Purchase Agreement, as of the Closing Date; (iv) Teleflex’s or the ownership, possession Holding Company’s breach of or operation of failure to fulfill or perform any covenant or agreement to be performed by it under the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
IP Purchase Agreement; (v) any Taxes claim by, against or involving, or Losses of, Teleflex or any Affiliate of Teleflex (other than an Indemnification Claim (as defined herein) pursuant to Section 6.2 hereof) or any claim, matter or Losses not relating to the Business resulting from the Company’s consolidation with, or status as an Affiliate of, Teleflex or any Affiliate of Teleflex; (vi) any Environmental Retained Liabilities; (vii) any IP Claims; (viii) the participation of the Company, or the sale or inclusion of any kind of the Company’s accounts receivable, in any accounts receivable securitization program of Teleflex or any Affiliate of Teleflex or any obligation of, or any Action against or involving, the Company arising out of any Contractual Obligation relating to any such accounts receivable securitization program, including, without limitation, that certain Purchase and Sale Agreement, dated August 17, 2001, to which the Company is a party; (ix) the existence, release, discharge or arising termination of that certain Mortgage in connection with favor of Xxxxx X. Xxxxxxx, Xx., Xxxxxx X. Xxxx and Xxxxxxx X. Xxxxxx executed by the transfer Company on March 11, 1991, as identified on Schedule 4.1.5, or any obligation, indebtedness or other Liability of the Acquired Assets to Buyer;
Company relating thereto or secured thereby; (vix) the existence, release, discharge or termination of that certain Mortgage in favor of Teleflex executed by the Company on March 25, 1991, as identified on Schedule 4.1.5, or any obligation, indebtedness or other Liability of the Company relating thereto or secured thereby; or (xi) the failure of Seller to comply withobtain any approval, consent, authorization or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as other order set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionon Schedule 4.1.27.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From Subject to the provisions of this Article IX, Company, Oaks, and after each of the ClosingSellers, Seller shall agrees to indemnify, defend and hold harmless Buyer, Buyer and its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsIndemnitees”) from and after the Closing, against any Damages related to any and all Losses of every kindClaims to the extent such Claims are based upon, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to of or result from or as a consequence of any of the followingare related to:
(ia) the any breach or inaccuracy of any representation or warranty made by any of Seller the Company or Oaks or any of the Sellers in this Agreement or contained in this Agreement, any Related Agreement certificate delivered by any of the Company or Oaks or any exhibit or certificate delivered hereunderof the Sellers pursuant to Section 8.2; provided, however, that when determining the amount of Damages from such breach, any exception or qualification in the event the Buyer Indemnified Persons would otherwise such representations and warranties relating to materiality, Material Adverse Effect or other similar qualifications as used therein shall be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, disregarded therein;
(b) the adaptation or modification by Buyer any breach of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse covenant of any Pre-Closing Product of the Company or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller Oaks or any of its Affiliates contained the Sellers in this Agreement or in any Related certificate, writing or instrument executed and delivered by any of the Company or Oaks or any of the Sellers pursuant to this Agreement;
(iiic) any Excluded Liabilityclaim of any Person for brokerage or finder’s fees or commissions or similar payments owed or alleged to be owed under any agreement or understanding made, or alleged to have been made, by such Person with any Seller (or any Person acting on behalf of any Seller) in connection with any of the transactions contemplated by this Agreement;
(ivd) any Seller Indemnified Taxes;
(e) any non-compliance with applicable statutory or regulatory requirements promulgated or administered by the ownershipU.S. Department of Transportation or any subdivision thereof or any state or local Governmental Body relating to transportation, possession safety or operation protection of the Acquired Assets by Seller or any Action environment with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth hereinBusiness; or
(viif) the failure of Seller or any of its Affiliates amounts required to comply with pay any Laws applicable to the import or export expenses and Indebtedness of the Acquired Software any member of the Company Group (other than the Senior Indebtedness and Large Leases) not taken into account in making the United States, Canada calculations of the Purchase Price and the European UnionClosing Working Capital hereunder.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (NYTEX Energy Holdings, Inc.)
Indemnification by Seller. (a) From Subject to Section 12.4 and Section 12.6, from and after the ClosingClosing Date, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates each Affiliate of Buyer (including after the Closing, the Acquired Companies) and each of their respective successors and assigns and the respective Representatives of each of the foregoing (collectively, the “Buyer Indemnified PersonsGroup”) from and against against, and pay or reimburse, as the case may be, the Buyer Group for, any and all Losses Damages actually incurred by any member of every kindthe Buyer Group (including after the Closing, nature the Acquired Companies) based upon or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise arising out of, relate to or result from or as a consequence of any of the following:
(ia) the breach or inaccuracy of any representations and warranties contained in Article V or in any certificate delivered by Seller pursuant to the terms hereof (other than Seller’s representations and warranties with respect to Taxes set forth in Section 5.9 which shall be governed by Article XIII) as of the date hereof and as of the Closing Date (except to the extent expressly made solely as of an earlier date, in which case the breach or inaccuracy of such representations and warranties shall be measured as of such earlier date); provided, however, that in the case of any such representation or warranty that is limited by “material”, “materiality”, “Material Adverse Effect” or words of similar effect, the occurrence of a breach or inaccuracy of such representation or warranty and the amount of Damages shall be determined as if such “material”, “materiality”, “Material Adverse Effect” or words of similar effect were not included therein; provided further, however, that (i) with respect to Section 5.6(b) the reference to “Material Adverse Effect” shall not be disregarded, and (ii) with respect to Section 5.11(b) the reference to “Material Contracts” shall not be disregarded and the word “material” shall be deemed to be included before the reference to “amendments, waivers or changes”; or
(b) the breach of any covenant or agreement of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action than with respect to or arising from any Acquired Intellectual Property deliveredTaxes, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Unionwhich are governed exclusively by Article XIII).
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by Seller. (a) From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective successors and assigns and the respective Representatives of each of the foregoing (the “Buyer Indemnified Persons”) from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly or indirectly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreement;
(iii) any Excluded Liability;
(iv) the ownership, possession or operation of the Acquired Assets by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union.
(b) Subject to the other terms and conditions of this
(a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Article VIIAgreement, the Ancillary Documents, or in any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied certificate or instrument delivered by reducing the Holdback Reserve Amount that would otherwise be payable to or on behalf of Seller pursuant to Section 2.3. Any Losses this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that become payable expressly relate to a Buyer Indemnified Person specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Seller pursuant to Section 7.2(athis Agreement, or any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement;
(c) any Excluded Asset or any Excluded Liability;
(d) the Assumed Environmental Liabilities, to the extent, if any, that are not satisfied Losses incurred by Buyer in accordance connection with the preceding sentence same prior to the tenth (10th) anniversary of the Closing Date exceed the amount of $25,000,000 in the aggregate, but not in any event including any Environmental Claims, Liabilities, or Losses arising directly out of any asset retirement obligations or arising solely by reason of Buyer’s ownership and operation of the Purchased Assets following the Closing Date. Nothing in this Section 8.02 shall be payable by Seller upon demand, by wire transfer preclude Buyer from commencing litigation to enforce the provisions of immediately available funds to an account designated this Section 8.02 and enforcing any related judgement if the requirements for commencement of litigation in writing by such Buyer Indemnified Personthis ARTICLE VIII have otherwise been satisfied.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
Indemnification by Seller. (a) From and after the Closing, and subject to this Article 9, Seller shall indemnifyhereby agrees to indemnify Purchasers, defend and hold harmless Buyer, its their Affiliates and their respective successors officers, directors, managers, employees, agents and assigns and the respective Representatives of each of the foregoing representatives (collectively, the “Buyer Purchasers Indemnified PersonsParties”) from and against for any and all Losses of every kindlosses, nature or description asserted againstdamages, or sustainedpenalties, incurredassessments, suffered or accrued directly or indirectly byLiabilities, such Buyer claims, demands, judgments, demands, dues, fines, fees, suits, actions, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by the Purchaser Indemnified Person that arise Parties arising out of, relate or related to or result from or as a consequence of any of the following:
(i) the any inaccuracy or breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in on the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant part of Seller or any of its Relevant Affiliates contained in this Agreement or any of the Ancillary Agreements (provided, that in determining the amount of any Related Agreement;
indemnifiable Losses with respect to a breach of a representation or warranty by Seller for purposes of this Section 9.1(a)(i), such representations and warranties shall be read without regard to any limitation as to “Material Adverse Effect” or “materiality” qualifications (other than any dollar thresholds) contained therein, except with respect to the “materiality” qualifications set forth in Sections 5.4(a), 5.8(b), 5.8(c), the last sentence of 5.9(b), 5.11(b), 5.15(a), 5.16(a) and 5.17(c), (ii) any failure to deliver a Seller Notice required to be delivered pursuant to Section 7.1.6(a), (iii) any Excluded Liability;
(iv) the ownershipfailure to perform, possession breach or operation of the Acquired Assets violation by Seller or any Action with respect to or arising from any Acquired Intellectual Property delivered, installed or used prior to the Closing;
(v) any Taxes of any kind relating to or arising in connection with the transfer of the Acquired Assets to Buyer;
(vi) the failure of Seller to comply with, or perform any of its obligations under, (a) the Existing License Agreement prior to the Closing or (b) the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Relevant Affiliates of any of its other covenants or agreements contained in this Agreement or any of the Ancillary Agreements, (iv) any Excluded Liabilities; (v) any amounts that would not be recoverable by Purchasers or its Affiliates as a consequence of the failure by Seller or its Affiliates to comply if necessary with the requirements and provisions of “bulk-sale” and “bulk-transfer” Laws of any Laws jurisdiction that may otherwise be applicable with respect to the import transfer or export sale of any or all of the Acquired Software Transferred Assets to Purchasers, as applicable, (vi) any financial penalties or payment obligations imposed by any Governmental Authority related to the matter referred to in item one (1) of Schedule 5.14(a) to the Disclosure Letter (the “***”) for actions taken by or on behalf of Seller, its Affiliates, and their respective officers, directors and employees prior to the Closing. The Parties acknowledge and agree that (A) except as provided in the United StatesAmended and Restated Joint Defense Agreement, Canada and the European Union.
(b) Subject to the other terms and conditions indemnification obligations of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Seller in Section 7.2(a)(i9.1(a)(vi) shall be satisfied the exclusive liability of Seller to the Purchaser Indemnified Parties in respect of the *** and neither Seller nor any of its Affiliates shall have any indemnification obligation with respect to any Liability arising out of, or related to, the ***, other than as expressly set forth in Section 9.1(a)(vi), including in the event that as a consequence of the *** and (B) Purchasers have been informed by reducing the Holdback Reserve Amount Seller that would otherwise be payable (w) effective August 30, 2007, Aventis Inc., Aventis Pharmaceuticals, Inc., Sanofi-aventis US Inc and Sanofi-aventis US LLC, all of which are Affiliates of Seller (collectively, referred to Seller pursuant to Section 2.3. Any Losses that become payable to as “API”), have entered into a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance CIA with the preceding sentence shall OIG, and that they have received a copy of such CIA and its Addendum dated May 22, 2009, (x) API is the owner of certain of the Transferred Assets and Section IV.C of the Addendum provides that the CIA and its Addendum may be payable by Seller upon demand, by wire transfer binding on the purchaser of immediately available funds to an account designated such Transferred Assets unless otherwise agreed in writing by such Buyer Indemnified Personthe OIG, (y) neither Seller nor any of its Affiliates shall have any indemnification obligation with respect to any Liability which could arise out of, or relate to, the decision of the OIG to impose all or part of the obligations of the CIA or any new corporate integrity agreement to Purchasers or their Affiliates following consummation of the transactions contemplated by this Agreement, and (z) *** shall be treated as a Third Party Claim for purposes of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Valeant Pharmaceuticals International, Inc.)
Indemnification by Seller. (a) From Subject to the other provisions of this Article 11 and after the ClosingArticle 12 relating to certain environmental indemnities, Seller shall indemnify, defend indemnify and hold harmless Buyer, its Affiliates and their respective successors employees, representatives, officers, directors and assigns and the respective Representatives of each of the foregoing agents (the “"Buyer Indemnified Persons”Indemnitees") harmless from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, Damages suffered or accrued directly or indirectly by, such by any Buyer Indemnified Person that arise Indemnitee arising out of, relate to or result from or as a consequence of any of the following:
(ia) the breach or inaccuracy of any representation or warranty of Seller contained in this Agreement, any Related Agreement or any exhibit or certificate delivered hereunder; provided, however, in the event the Buyer Indemnified Persons would otherwise be entitled to indemnification for Losses, Seller shall not be obligated (under this Section 7.2(a)(i) or otherwise) to indemnify the Buyer Indemnified Persons or otherwise be liable to Buyer to the extent of such Losses that arise out of, relate to or result from (a) any combination by Buyer of any Pre-Closing Product with any other product or service, (b) the adaptation or modification by Buyer of any Pre-Closing Product where infringement would not have occurred but for such adaptation or modification by Buyer, (c) the misuse of any Pre-Closing Product or the use of any Pre-Closing Product in an application for which it was not designed made by Seller or (d) Seller’s compliance with specifications and directions provided by Buyer to Seller;
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of Seller or any of its Affiliates contained in this Agreement or in any Related Agreementother agreement or certificate delivered by Seller at the Closing;
(iiib) the breach of any Excluded Liabilitycovenant, undertaking or agreement by Seller in this Agreement or in any other agreement executed and delivered at the Closing;
(ivc) in addition to and without limiting the ownership, possession scope of paragraphs (a) and (b) above:
(I) any claim against Aptus or operation NEI for workman's xxxxxxxation pending as of the Acquired Assets by Seller Closing or any Action with respect such claim made after the Closing based upon or alleging an incident occurring entirely prior to Closing, including any unsatisfied judgments or arising from other final awards or settlements reached, whether or not scheduled in this Agreement, except to the extent properly reserved for on the December 1994 Balance Sheet;
(II) any Acquired Intellectual Property deliveredlitigation instituted or threatened against Aptus or NEI as of the Closing, installed including any unsatisfied judgments or used other final awards or settlements reached, whether or not scheduled in this Agreement, except to the extent properly reserved for on the December 1994 Balance Sheet;
(III) any litigation instituted or threatened against Aptus or NEI after the Closing based upon or alleging an incident occurring entirely prior to Closing;
(IV) any litigation instituted or threatened against Aptus or NEI, other than litigation addressed by items (II) and (III) above, but only to the extent attributable to the business of Aptus or NEI prior to the Closing;
(vV) any Taxes liability of any kind whatsoever (i) arising from any incident or occurrence prior to July 1985 and relating in any way to the business operations of NEI, any predecessor of NEI, any Person merged into NEI or arising Aptus, or any Person whose liabilities were assumed by NEI or Aptus as a result of an acquisition, divestiture or reorganizations whether by operation of law or otherwise, or (ii) relating in connection any way to the business operations of National Oil Processing, Inc., Coffeyville Truck Center, Inc., National Investment Company, or any Person required to be identified on Schedule 3.1.3 but omitted therefrom. This section is intended to extend to any claims made against Aptus with regard to the transfer one (1) acre parcel of property owned by Hawks and Meehan and located at the Acquired Assets to Buyer;Coffeyville Facility.
(viVI) the failure of Seller to comply with, or perform any of its obligations under, Undisclosed Liabilities. The foregoing items (a) the Existing License Agreement prior to the Closing or ), (b) and (c) being collectively referred to as the Surviving Existing License Agreement Provisions following the Closing as set forth herein; or
(vii) the failure of Seller or any of its Affiliates to comply with any Laws applicable to the import or export of the Acquired Software in the United States, Canada and the European Union"Retained Liabilities.
(b) Subject to the other terms and conditions of this Article VII, any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) shall be satisfied by reducing the Holdback Reserve Amount that would otherwise be payable to Seller pursuant to Section 2.3. Any Losses that become payable to a Buyer Indemnified Person pursuant to Section 7.2(a) that are not satisfied in accordance with the preceding sentence shall be payable by Seller upon demand, by wire transfer of immediately available funds to an account designated in writing by such Buyer Indemnified Person."
Appears in 1 contract
