Indemnification by Selling Parties. (a) Subject to the other terms and conditions of this Agreement, Selling Parties, jointly and severally, agree to indemnify Buyer and its Affiliates (including following the Closing, the Company and its Subsidiary) and their respective officers, directors, stockholders and each of their respective Affiliates (each a “Buyer Indemnified Party”) against and hold them harmless to the extent of any Losses arising out of or resulting from (i) intentional misrepresentation, illegal conduct or fraud of any of the Selling Parties; and (ii) any breach of any covenant or agreement of the Selling Parties contained herein. Notwithstanding anything herein to the contrary, no obligation to indemnify shall exist for Losses arising from a breach of any representation or warranty set forth in Sections 3.16 and 3.28 hereof (except for fraud or intentional misrepresentations). (b) The amount of any Loss subject to indemnification under this Section 8.2 shall be calculated net of (i) any insurance proceeds actually received by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made by any third party. (c) A Buyer Indemnified Party shall give any Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII. (d) With respect to any Third Party Claim for which indemnification is sought under Section 8.2, Selling Parties shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing or liability on behalf of any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIII.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Umami Sustainable Seafood Inc.), Stock Purchase Agreement (Lions Gate Lighting Corp.)
Indemnification by Selling Parties. (a) Subject to the other terms limitations set forth in this Article VI, from and conditions of this Agreementafter the Closing, the Selling Parties, jointly and severallyseverally (except with respect to Section 3.12(b)–(d), agree to in which case the Selling Parties shall indemnify Buyer the Purchaser Indemnified Parties on a several, not joint and several, basis), shall indemnify, defend and hold harmless Purchaser, its Affiliates (including following the Closing, the Company and its Subsidiary) and their respective successors, assignees, officers, directors, stockholders principals, attorneys, agents, employees or other Representatives (collectively, the "Purchaser Indemnified Parties" and each of their respective Affiliates (each individually a “Buyer "Purchaser Indemnified Party”") against and hold them harmless to the extent of any Losses Damages that a Purchaser Indemnified Party incurs arising out of or resulting from as a result of:
(ia) intentional misrepresentationany breach, illegal conduct misrepresentation or fraud inaccuracy of any of the Selling Parties; representations and (ii) any breach warranties of any covenant or agreement of the Selling Parties contained herein. Notwithstanding anything herein to the contrary, no obligation to indemnify shall exist for Losses arising from a breach of any representation or warranty Party set forth in Sections 3.16 and 3.28 hereof (except for fraud this Agreement or intentional misrepresentations).in any certificate furnished by any Selling Party to Purchaser or Parent pursuant to this Agreement;
(b) The amount of any Loss subject to indemnification under this Section 8.2 shall be calculated net of (i) any insurance proceeds actually received by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made breach or nonfulfillment by any third party.Selling Party of its respective covenants or agreements set forth in this Agreement;
(c) A Buyer Indemnified Party shall give any Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.Excluded Liability;
(d) With respect any Excluded Asset;
(e) subject to Section 2.5, any Third Party Claim and all Taxes of Seller or the Member for which indemnification is sought under Section 8.2, Selling Parties shall have any Tax period prior to the right to direct, through counsel of its own choosing, Closing (including the defense or settlement portion of any such claim tax period allocable to the pre-Closing period) and for any Taxes payable by Seller or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf the Member as a result of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against transactions contemplated by this Agreement; and
(f) any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense and all Matters, demands, assessments, audits or judgments arising out of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for of the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing or liability on behalf of any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIIforegoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bioanalytical Systems Inc)
Indemnification by Selling Parties. (a) Subject to the other terms and conditions provisions of this AgreementArticle X, the Selling Parties, jointly and severally, agree to shall indemnify Buyer and its Affiliates (including following the Closing, the Company and its Subsidiary) and their respective officers, directors, stockholders and each of their respective Affiliates (each a “Buyer Indemnified Party”) against and hold them harmless and defend any Silgan Indemnitee from and against any and all Losses without duplication suffered or incurred by any Silgan Indemnitee after the Closing as a result of, arising out of, relating to or in connection with:
(a) any breach by the extent Selling Parties, or any inaccuracy, of any Losses arising out of representation or resulting from (i) intentional misrepresentation, illegal conduct or fraud of any warranty of the Selling Parties; and Parties contained in this Agreement or any Ancillary Agreement (ii) except for Section 4.15 for which any breach is governed by Section 10.3); provided that for purposes of this Section 10.2(a), the representations and warranties in Sections 4.4, 4.16 and 4.20(h) subject to "materiality" or "Material Adverse Effect" qualifiers shall be read as if made without such "materiality" or "Material Adverse Effect" qualifiers;
(b) the failure by a Selling Party to perform any covenant or agreement of the such Selling Parties contained herein. Notwithstanding anything herein to the contrary, no obligation to indemnify shall exist for Losses arising from a breach of any representation or warranty set forth in Sections 3.16 and 3.28 hereof (except for fraud or intentional misrepresentations).
(b) The amount of any Loss subject to indemnification Party under this Section 8.2 shall be calculated net of (i) Agreement or any insurance proceeds actually received by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made by any third party.Ancillary Agreement;
(c) A Buyer Indemnified Party shall give any Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.Excluded Liabilities;
(d) With respect any default described in Schedule 4.12(b) under (A) the Cerebos Agreement and (B) the supply agreement with Bledina dated May 15, 2003;
(e) except for liabilities for Rework and Refunds covered by Section 6.23 hereof, any product, part, component or other item manufactured by the Subject Companies prior to the Closing Date;
(f) notwithstanding any Third other provision of this Agreement, including Section 10.7(c) hereof, or whether such liability or obligation is an Excluded Liability or an Acquired Company Excluded Liability, any liability or obligation (whether known or unknown, absolute, accrued, contingent or otherwise and whether contractual, tort or any other type of liability, obligation or claim) relating to or arising from any facility that any Subject Company or Selling Party Claim for which indemnification or their present or former subsidiaries or respective predecessors in interest may have owned, leased, operated or otherwise used at any time that is sought under Section 8.2, Selling Parties shall have not included in the right to direct, through counsel of its own choosing, Real Property or the defense or settlement operation of any such claim or proceeding business other than the Business at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf any of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against Real Property, including any Losses that may result such liabilities or obligations resulting from such Third Party Claim. If Selling Parties elect to assume the defense generation, use, handling, presence, treatment, storage, transportation, disposal or Release of any Hazardous Materials at any such claim facility or proceedingany violations of applicable Environmental Laws on, Selling Parties shall consult with Buyer Indemnified Party for prior to or after the purpose Closing Date;
(g) any Acquired Company Excluded Liabilities;
(h) any Taxes due as a result of allowing Buyer Indemnified Party the fact that the interest payable on the Indebtedness of the Acquired Companies outstanding as of the Closing Date is not tax deductible in the applicable jurisdiction because of inadequate historical documentation or the applicability of thin capitalization rules prior to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement Closing;
(i) includes injunctive the obligations of Amcor Deutschland as a result of, arising out of, relating to or other equitable relief imposed against in connection with the Cerebos Agreement (i) until such time as the purchase and sale of Amcor South East Asia, Amcor Investments, Amcor Properties and Amcor Asia Pacific is consummated pursuant to Section 3.4 (whether or not the business of such Specified Interest is being managed by Silgan or any Buyer Indemnified of its Affiliates or the applicable Selling Party, ) or (ii) contains an admission in perpetuity in the event the Specified Approval for the sale of wrongdoing or liability on behalf Amcor South East Asia, Amcor Investments, Amcor Properties and Amcor Asia Pacific is not obtained and the Parties do not close the purchase and sale of such Specified Interests in accordance with this Section 3.4;
(j) the disposal of any Buyer Indemnified Party asbestos-containing materials stored at Closing on the grounds of the Amcor Venezuela manufacturing plant located in Valencua - Edo. Carabobo, Venezuela;
(k) (A) any debt arising under United Kingdom legislation due to the operation of section 75 or its Affiliates. Each Buyer Indemnified Party shallsection 75A of the Pensions Act 1995 giving rise to any relevant demand or costs, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and (B) any Losses to contribute or to provide Selling Parties support which are levied, imposed or incurred pursuant to United Kingdom legislation under sections 38 to 51 of the Pensions Xxx 0000 and their counsel with reasonable access to all records and personnel relating (C) any funding deficit in excess of (euro)720,000 that is attributable to any such claimSeller Benefit Plan designed to benefit the individual set forth on Schedule 10.2(k);
(l) [intentionally omitted];
(m) the Brazil Litigation, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in including the defense or settlement thereof. If Selling Parties elect to direct the defense loss of any such claim management fees under the applicable Specified Interest Management Agreement; and
(n) any and all actions, suits, proceedings, claims or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect demands incident to any claims subject of the foregoing or initiated to this Article VIIIenforce the indemnification provisions herein.
Appears in 1 contract
Indemnification by Selling Parties. In addition to the indemnification set forth in Section 8.03, from and after the Closing:
(a) Subject to the other terms and conditions of this Agreement, Selling PartiesParties shall, jointly and severally, agree to indemnify and hold harmless the Buyer and its Affiliates (including following the Closing, the Company and its Subsidiary) and their respective officers, directors, stockholders and each of their respective Affiliates (each a “Buyer Indemnified Party”) Indemnitees against and hold them harmless from any and all Damages that any Buyer Indemnitee may incur or suffer to the extent of any Losses arising such Damages arise out of or resulting result from (i) intentional misrepresentation, illegal conduct or fraud the breach of any of representation or warranty made by Selling Parties and the Selling Parties; and Company in Article IV (or any certificate delivered by the Company pursuant to this Agreement), (ii) any the breach by the Company or Sellers’ Guarantor prior to the Closing of any covenant or agreement of the Company contained in this Agreement, (iii) any Indebtedness of the Acquired Companies or Unpaid Company Transaction Expenses to the extent not paid prior to the Closing (provided that (x) in no event shall Selling Parties contained herein. Notwithstanding anything herein have any indemnification obligation pursuant to this Section 11.02(a)(iii) or otherwise in this Section 11.02 or in Section 8.03 with respect to any amount taken into account in determining any adjustment to the contraryPurchase Price pursuant to Article II and (y) the indemnification obligation of Selling Parties pursuant to Section 11.02(a)(iii) shall expire and be of no further force or effect on the Expiration Date), no obligation (iv) the Government Contract Matters, and (v) Selling Parties’ share of Transfer Taxes set forth in Section 8.03(b).
(b) Selling Parties shall, jointly and severally, indemnify and hold harmless the Buyer Indemnitees against and from any and all Damages that any Buyer Indemnitee may incur or suffer to indemnify shall exist for Losses arising the extent such Damages arise out of or result from a (i) the breach of any representation or warranty set forth in Sections 3.16 and 3.28 hereof (except for fraud or intentional misrepresentations).
(b) The amount of any Loss subject to indemnification under this Section 8.2 shall be calculated net of (i) any insurance proceeds actually received by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made by any third party.
(c) A Buyer Indemnified Party shall give any such Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under in this Agreement, within sixty including in Article III (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced certificate delivered by such failure and shall not relieve any Indemnifying Selling Party from any other obligation or Liability that it may have pursuant to any Buyer Indemnified Party otherwise than under this Article VIII.
(dAgreement) With respect to any Third Party Claim for which indemnification is sought under Section 8.2, Selling Parties shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing the breach by such Selling Party or liability on behalf Sellers’ Representative of any Buyer Indemnified covenant or agreement of such Selling Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties Sellers’ Representative contained in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIIAgreement.
Appears in 1 contract
Indemnification by Selling Parties. (a) Subject From and after the Closing, each Selling Party agrees to the other terms and conditions of this Agreement, Selling Parties, jointly and severallyseverally indemnify, agree to indemnify defend and save Buyer and its respective Affiliates (including following the Closingincluding, without limitation, the Company and its SubsidiaryNew LP) and each of their respective officers, directors, stockholders managers, employees, agents and each of their respective Affiliates fiduciaries (each each, a “Buyer Indemnified Party”) against ), forever harmless from and hold them harmless against, and to pay to a Buyer Indemnified Party or reimburse a Buyer Indemnified Party for (in either case within ten business days of its receipt of notice in accordance with the extent terms of this Article XII from any Buyer Indemnified Party), any and all liabilities (whether contingent, fixed or unfixed, liquidated or unliquidated, or otherwise), obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses, interest, fines, penalties, actual or punitive damages or costs or expenses of any Losses and all investigations, proceedings, judgments, environmental analyses, remediations, settlements and compromises (including reasonable fees and expenses of attorneys, accountants and other experts) (individually and collectively, the “Losses”) actually sustained or incurred by any Buyer Indemnified Party relating to, resulting from, arising out of or resulting from (i) intentional misrepresentation, illegal conduct or fraud otherwise by virtue of any of the Selling Parties; and following:
(iia) any misrepresentation or breach of any covenant or agreement of the Selling Parties contained herein. Notwithstanding anything herein to the contrary, no obligation to indemnify shall exist for Losses arising from a breach of any representation or warranty set forth contained in Sections 3.16 and 3.28 hereof (except for fraud this Agreement or intentional misrepresentations).in the Transaction Documents by any Selling Party, or non-compliance with or breach by any Selling Party of any of the covenants or agreements contained in this Agreement or the Transaction Documents to be performed by any Selling Party or any of their respective Affiliates;
(b) The amount the operation of the Business prior to the Closing Date, including the use of the Assets and the Excluded Assets prior to the Closing Date;
(c) any Tax liability of any Loss subject Selling Party whatsoever, including, without limitation, any Tax liability with respect to indemnification or arising from the transactions contemplated hereby or the structuring of the transactions contemplated hereby, or any Tax liability under Texas bulk sales laws;
(d) any violations of or obligations under Environmental and Safety Requirements relating to acts, omissions, circumstances or conditions to the extent existing or arising on or prior to the Closing Date, whether or not such acts, omissions, circumstances or conditions constituted a violation of Environmental and Safety Requirements as then in effect;
(e) any liabilities relating to or arising from the provision of (or failure to provide) professional medical services prior to the Closing Date, including any liabilities relating to the failure, prior to the Closing Date, to adhere to or comply with any Medicare and Medicaid requirements or Fraud and Abuse Laws;
(f) any action, demand, proceeding, investigation or claim (whenever made) by any third party (including Governmental Authorities) against or affecting Buyer or its Affiliates which, if successful, would give rise to or evidence the existence of or relate to a misrepresentation or breach of any of the representations, warranties or covenants contained in this Section 8.2 shall be calculated net Agreement or the Transaction Documents of any Selling Party;
(g) the Excluded Assets or Excluded Liabilities;
(h) any claim for payment of fees and/or expenses as a broker or finder in connection with the origin, negotiation, execution or consummation of this Agreement based upon any alleged agreement between the claimant and any Selling Party;
(i) any insurance proceeds actually received claim by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made by any third party.
(c) A Buyer Indemnified Party shall give any Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference Xxxxxxx with respect to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; providedtransactions contemplated herein, howeverincluding, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.
(d) With respect to any Third Party Claim for which indemnification is sought under Section 8.2, Selling Parties shall have the right to direct, through counsel of its own choosingwithout limitation, the defense or settlement of any such claim or proceeding at New LP Asset Transfer, the Distribution Transactions and the Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf sale of the Indemnifying Parties in writing their obligation Transferred Interests to indemnify Buyer Indemnified Party hereunder against Buyer; or
(j) any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceedingrelating to, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Partyarising out of, or (ii) contains an admission in connection with, the failure of wrongdoing Clearview to maintain either a Pharmacy Board Permit or liability on behalf of a CLIA Certificate at any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause time prior to the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIIClosing Date.
Appears in 1 contract
Samples: Asset Contribution and Exchange Agreement (Novamed Inc)
Indemnification by Selling Parties. (a) Subject to the other terms limitations set forth in this ARTICLE VI, from and conditions of this Agreementafter the Closing, the Selling Parties, jointly and severallyseverally (except with respect to Section 3.12(b), agree to in which the Stockholder shall indemnify Buyer the Purchaser Indemnified Parties on a several, not joint and several, basis), shall indemnify, defend and hold harmless Purchaser, its Affiliates (including following the Closing, the Company and its Subsidiary) and their respective successors, assignees, officers, directors, stockholders principals, attorneys, agents, employees or other Representatives (collectively, the "Purchaser Indemnified Parties" and each of their respective Affiliates (each individually a “Buyer "Purchaser Indemnified Party”") against and hold them harmless to the extent of any Losses Damages that a Purchaser Indemnified Party incurs arising out of or resulting from as a result of:
(ia) intentional misrepresentationany breach, illegal conduct misrepresentation or fraud inaccuracy of any of the Selling Parties; representations and (ii) any breach warranties of any covenant or agreement of the Selling Parties contained herein. Notwithstanding anything herein to the contrary, no obligation to indemnify shall exist for Losses arising from a breach of any representation or warranty Party set forth in Sections 3.16 and 3.28 hereof (except for fraud this Agreement or intentional misrepresentations).on any certificate or other instrument or document furnished by any Selling Party to Purchaser pursuant to this Agreement or any Transaction Document;
(b) The amount of any Loss subject to indemnification under this Section 8.2 shall be calculated net of (i) any insurance proceeds actually received by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made breach or nonfulfillment by any third party.Selling Party of its respective covenants or agreements set forth in this Agreement or any other Transaction Document;
(c) A Buyer Indemnified Party shall give any Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.Excluded Liability;
(d) With respect any Excluded Asset;
(e) any and all Taxes of Seller or the Stockholder (including Taxes due or payable for any Tax period ending on or prior to the Closing Date and any Third Party Claim for which indemnification is sought under Section 8.2Taxes payable as a result of the transactions contemplated by this Agreement) and any Tax resulting from a breach or inaccuracy of a representation or warranty of Seller in this Agreement; and
(f) any and all Matters, Selling Parties shall have the right to directdemands, through counsel of its own choosingassessments, the defense audits or settlement judgments arising out of any such claim or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing or liability on behalf of any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIIforegoing.
Appears in 1 contract
Indemnification by Selling Parties. (a) Subject to the other terms limitations provided herein, Xxxxxx shall indemnify and conditions of this Agreement, Selling Parties, jointly and severally, agree to indemnify hold harmless Buyer and its Affiliates (including following the Closingcollectively, the Company and its Subsidiary) and their respective officers, directors, stockholders and each of their respective Affiliates (each a “Buyer Indemnified PartyIndemnitees”) against and hold them harmless to the extent set forth in this article DC in respect of any Losses loss that any of them may suffer, sustain, incur or become subject to, arising out of of, based upon or resulting from (i) intentional misrepresentation, illegal conduct or fraud on account of each and all of the following:
i. The breach or falsity of any of representation or warranty made by Xxxxxx in this Agreement, including the Selling Parties; documents, instruments and (agreements to be executed and/or delivered by Xxxxxx pursuant hereto.
ii) any . The breach of any covenant or agreement Agreement made by Xxxxxx hi this Agreement, including the documents, instruments and agreements to be executed and/or delivered by Xxxxxx pursuant hereto.
iii. Any Employee Benefit Plan Liabilities, other man those Employee Benefit Plan Liabilities specifically assumed by Buyer.
iv. Any claims for Taxes against Xxxxxx, the Purchased Assets, or the Business assessed during or attributable to any taxable period ending on or prior to the Closing Date.
v. Any currently pending or threatened litigation involving Xxxxxx, including, without limitations, the matters, facts and circumstances listed or described on Schedule F.
vi. The use or ownership of the Selling Parties contained herein. Notwithstanding anything herein Purchased Assets or operation of the Business prior to the contrary, no obligation to indemnify shall exist for Losses arising from a breach of any representation or warranty set forth in Sections 3.16 and 3.28 hereof (except for fraud or intentional misrepresentations)Closing Date.
(b) The amount Xxxxxx shall have no obligation to indemnify Buyer for consequential damages, special damages, incidental damages, indirect damages, punitive damages, lost profits or similar items. jurisdiction that is in effect that restrains or prohibits the consummation of any Loss subject the purchase by, or the transfer by Xxxxxx to indemnification under this Section 8.2 Buyer of the Purchased Assets and there shall be calculated net of (i) any insurance proceeds actually received by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made by any third party.
(c) A Buyer Indemnified Party shall give any Selling Party written notice of any no claim, assertionlegal action, event arbitration or proceeding as other administrative action pending seeking so to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claimdo; provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any benefits of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.
(d) With respect to any Third Party Claim for which indemnification is sought under Section 8.2, Selling Parties shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing or liability on behalf of any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent 7.3 shall not be unreasonably withheld or delayed. If Selling Parties fail available to defend or if, after commencing or undertaking any such defense, Selling Parties fail a party whose failure to prosecute or withdraw from such defense, Buyer Indemnified Party fulfill its obligations pursuant to this Agreement shall have been the right to undertake the defense cause of, or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of resulted in, such claim injunction, restraining order or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIIdecree.
Appears in 1 contract
Indemnification by Selling Parties. (a) Subject to Section 10.7 and Section 10.8 below, the other terms and conditions of this Agreement, Selling Parties, jointly and severally, agree to indemnify shall indemnify, defend and hold harmless Buyer and its Affiliates (including following the ClosingAffiliates, the Company and its Subsidiary) and their respective officers, directors, partners, managers and stockholders and each of their respective Affiliates (each a “Buyer Indemnified PartyParties”), from and against, and will reimburse the Buyer Indemnified Parties the amount of, any claim, expense, damage, liability or loss (including, without limitation, reasonable attorneys’ fees and other reasonable costs and expenses incident to, and amounts paid or required to be paid in settlement of, any claim, suit, action or proceeding, including, without limitation, claims, suits, actions or proceedings to enforce this indemnity obligation), whether or not involving a Third Party Claim (a “Loss”), suffered, sustained, incurred, paid or required to be paid by any Buyer Indemnified Party which arises out of, results from or is related to:
(a) against and hold them harmless to the extent breach by a Selling Party of any Losses arising out of or resulting from (i) intentional misrepresentationrepresentation, illegal conduct or fraud of any of the Selling Parties; and (ii) any breach of any warranty, covenant or agreement of the made by a Selling Parties contained herein. Notwithstanding anything herein to the contrary, no obligation to indemnify shall exist for Losses arising from a breach of Party in this Agreement or any representation or warranty set forth in Sections 3.16 and 3.28 hereof (except for fraud or intentional misrepresentations).Ancillary Agreement;
(b) The amount any of the Excluded Assets or the Excluded Liabilities, including, without limitation, (i) all Taxes (including sales and use Taxes) imposed on the Business or the Acquired Assets (or Buyer or any Affiliate thereof) in respect of any Loss subject periods prior to indemnification under the Closing, (ii) all obligations to the Business Employees and other Personnel for periods prior to Closing (except to the extent any such obligations are included within the Assumed Liabilities as Accrued Employee Compensation Amounts, in the case of Business Employees, or Accounts Payable, in the case of other Personnel) and (iii) any broker’s or finder’s fees or commissions incurred by any Selling Party in connection with the transactions contemplated by this Section 8.2 shall be calculated net of Agreement; and
(c) (i) any insurance proceeds actually received by Buyer Indemnified Party on account claim, suit, action or proceeding (known or unknown, contingent or otherwise, whether arising in contract, contribution, indemnity, tort or otherwise), or any threat thereof, that relates to the Business or the Acquired Assets (including any Acquired Contract), in which the principal event giving rise thereto (which such events may include, without limitation, the action or inaction of, or a breach of such Lossa representation, and (ii) any indemnification payments warranty or guarantee made by any third party.
(c) A Buyer Indemnified Party shall give by, any Selling Party written notice of any claimand/or its officers, assertiondirectors, event employees or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60agents) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference occurred prior to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; providedClosing Date, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by any such failure and shall not relieve any Indemnifying Party from any other obligation Losses constitute Assumed Liabilities or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.
(d) With respect to any Third Party Claim constitute Losses for which indemnification Buyer is sought required to indemnify the Selling Parties Indemnified Parties under Section 8.2, Selling Parties shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing or liability on behalf of any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIII.10.3 below; or
Appears in 1 contract
Indemnification by Selling Parties. The Selling Parties shall defend, indemnify and hold harmless Buyer and each of Buyer's Affiliates, employees, successors and assigns (Buyer and such persons, collectively, "Buyer's Indemnified Persons"), and shall reimburse Buyer's Indemnified Persons, for, from and against each and every demand, claim, loss (which shall include any diminution in value), liability, judgment, damage, cost and expense (including, without limitation, interest, penalties, costs of preparation and investigation, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors) (collectively, "Losses") imposed on or incurred by Buyer's Indemnified Persons, directly or indirectly, relating to, resulting from or arising out of: (a) Subject to any inaccuracy in any representation or warranty in any respect, whether or not Buyer's Indemnified Persons relied thereon or had knowledge thereof, or any breach or nonfulfillment of any covenant, agreement or other obligation of the other terms and conditions of Selling Parties under this Agreement, Selling Parties, jointly and severally, agree the Schedules hereto or any certificate or other document delivered or to indemnify Buyer and its Affiliates be delivered pursuant hereto; (including following the Closing, the Company and its Subsidiary) and their respective officers, directors, stockholders and each of their respective Affiliates (each a “Buyer Indemnified Party”) against and hold them harmless to the extent of any Losses arising out of or resulting from (i) intentional misrepresentation, illegal conduct or fraud of any of the Selling Parties; and (iib) any breach by a Selling Party of any covenant or agreement obligation of such Selling Party under this Agreement; (c) any product shipped or manufactured by Seller prior to the Closing Date; (d) any liability of the Seller not assumed under Section 3.4 including, but not limited to, any liabilities relating to legal proceedings either pending at the time of the Closing or relating to actions of the Selling Parties contained herein. Notwithstanding anything herein that occurred prior to the contrary, no obligation to indemnify shall exist for Losses arising from Closing; (e) any Tax liability incurred by Selling Parties as a result of the transactions contemplated by this Agreement or as a result of a breach of any representation or warranty set forth the representations and warranties of Selling Parties in Sections 3.16 and 3.28 hereof Section 4.9; (except for fraud or intentional misrepresentations).
(b) The amount of any Loss subject to indemnification under this Section 8.2 shall be calculated net of (if) any insurance proceeds actually received claim by Buyer Indemnified Party on account of any Person for a brokerage or finder's fee based upon any arrangement allegedly made by such Loss, Person with a Selling Party; and (iig) any indemnification payments made by any third party.
(c) A Buyer Indemnified Party shall give any Selling Party written notice of any claimclaim arising under Environmental Law and/or events, assertion, event acts or proceeding as to omissions which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference occur prior to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; Closing, provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.
(d) With respect to any Third Party Claim for which indemnification is sought under Section 8.2, Selling Parties shall have no liability under this Section 10.1 unless and until the right to directaggregate of all Losses exceeds $50,000 (the "Buyer's Minimum Amount"), through counsel of its own choosing, in which event the defense or settlement of any such claim or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party be liable for the purpose aggregate of allowing Buyer Indemnified Party to participate all Losses in such defenseexcess of $50,000. In no event shall the event aggregate indemnification by the Selling Parties assume exceed the defense amount of a Third Party Claim$5,499,257, Selling Parties provided, however, that the limitation shall not have apply to liabilities pursuant to subparagraphs (d), (e) above or matters related to the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing or liability on behalf of any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIIEnvironment.
Appears in 1 contract
Indemnification by Selling Parties. The Selling Parties shall jointly and severally indemnify and hold harmless Buyer from and against any damage, liability or loss (including reasonable attorneys fees and other reasonable costs and expenses incident to, and amounts paid or required to be paid in settlement of, any claim, suit, action or proceeding) (a "Loss") sustained, incurred, paid or required to be paid by Buyer which arises out of, results from or is related to:
(a) Subject to the other terms and conditions breach by a Selling Party of any representation, warranty, covenant or agreement contained in this Agreement, Selling Parties, jointly and severally, agree ;
(b) any failure by Seller to indemnify Buyer and its Affiliates comply with Article 6 of the Uniform Commercial Code of California or any other applicable jurisdiction;
(including following the Closing, the Company and its Subsidiaryc) and their respective officers, directors, stockholders and each of their respective Affiliates (each a “Buyer Indemnified Party”) against and hold them harmless to the extent of any Losses arising out of or resulting from (i) intentional misrepresentation, illegal conduct or fraud of any of the Selling Parties; Excluded Assets or the Excluded Liabilities or the Excluded Contracts, including, without limitation (A) all Taxes imposed on the Business or the Acquired Assets, the Assumed Liabilities or Buyer or any Affiliate thereof as a result of operations relating to the Business conducted prior to the Closing Date, and (iiB) any breach of obligations to the Business Employees (including obligations and liabilities to Rehired Employees) for periods prior to Closing;
(d) any covenant or agreement amount by which the unearned revenue of the Selling Parties contained herein. Notwithstanding anything herein as of the Closing Date for which Buyer assumed the related obligations as Assumed Liabilities exceeds the Accounts Receivable actually collected by Buyer within ninety (90) days of the Closing Date;
(e) any failure by a Selling Party to comply with the continuation health care requirements of the Code and ERISA with respect to the contraryBusiness Employees; or
(f) any claim, no obligation to indemnify shall exist for Losses arising from a breach of any representation suit, action or warranty proceeding set forth in Sections 3.16 Schedule 5.15, and 3.28 hereof any claim (except for fraud known or intentional misrepresentationsunknown, contingent or otherwise, whether arising in contract, contribution, indemnity, tort or otherwise).
(b) The amount of any Loss subject to indemnification under this Section 8.2 shall be calculated net of , suit, action or proceeding (i) any insurance proceeds actually received by Buyer Indemnified Party on account of such Lossagainst Seller and/or, and (ii) any indemnification payments made by any third party.
(c) A Buyer Indemnified Party shall give any Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that related to the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.
(d) With respect to any Third Party Claim for which indemnification is sought under Section 8.2, Selling Parties shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf operation of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume Business, DCTI existing on the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified PartyClosing Date, or (ii) contains an admission of wrongdoing arising after the Closing Date from events or liability on behalf of any Buyer Indemnified Party circumstances occurring, or representations, warranties or guaranties made, or alleged to have been made by either Selling Party, its Affiliates. Each Buyer Indemnified Party shalldirectors, and shall cause officers, employees or agents, prior to the Company and its Subsidiary toClosing Date, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to Seller and/or DCTI, the Business or the Acquired Assets, including, without limitation, any such claim, assertionsuit, event action or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceedingby Xxxxxxx Xxxxxx or, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIIthe use of LZW Technology, Xxxxxx Xxxxxxxxxxx.
Appears in 1 contract
Samples: Asset Purchase Agreement (Digital Courier Technologies Inc)
Indemnification by Selling Parties. (a) Subject to the other terms and conditions of this AgreementSECTION 9.2(B), Selling PartiesParties shall, jointly and severally, agree to indemnify indemnify, defend, and hold harmless Buyer and its Affiliates (including following the Closing, the Company and its Subsidiary) and their respective officers, directors, stockholders employees, Affiliates, successors and assigns from and against, and pay or reimburse each of their respective Affiliates them for and with respect to, any Loss (each each, a “Buyer Indemnified Party”"Buyer's Loss") against and hold them harmless to the extent of any Losses relating to, arising out of or resulting from from:
(i) intentional misrepresentation, illegal conduct or fraud Any breach by any Selling Party of any of the Selling Partiesits representations, warranties, covenants or agreements in this Agreement or any other Document; and or
(ii) any breach Any obligation, indebtedness or Liability of any Selling Party (other than the Assumed Obligations) regardless of whether disclosed to Buyer and regardless of whether constituting a breach by a Selling Party of any representation, warranty, covenant or agreement hereunder or under any other Document; or
(iii) Noncompliance by any Seller with the provisions of the Selling Parties contained herein. Notwithstanding anything herein to Bulk Sales Act, if applicable, in connection with the contrary, no obligation to indemnify shall exist for Losses arising from a breach of any representation or warranty set forth in Sections 3.16 and 3.28 hereof (except for fraud or intentional misrepresentations)transactions contemplated by this Agreement.
(b) The amount of any Loss subject to indemnification under this Section 8.2 shall be calculated net of (i) any insurance proceeds actually received by Buyer Indemnified Party on account of such LossIf Closing occurs, and (ii) any indemnification payments made by any third party.
(c) A Buyer Indemnified Party shall give any Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference notwithstanding anything to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; providedcontrary contained herein, however, that the failure to provide such notice Selling Parties shall not release the Indemnifying Parties from any of their obligations under this Article VIII be obligated to indemnify Buyer except to the extent that (i) the Indemnifying aggregate amount of Buyer's Losses exceeds Five Hundred Thousand Dollars ($500,000) (the "Threshold") (and then only to the extent the aggregate amount of Buyer's Losses exceed Two Hundred Fifty Thousand Dollars ($250,000)) and (ii) the aggregate amount of Buyer's Losses is less than Twenty-Two Million Dollars ($22,000,000) (the "Cap"), provided that any payment owed by Selling Parties are materially prejudiced by such failure and to Buyer for any of Buyer's Losses pursuant to or under SECTION 2.7, SECTION 5.19 or SECTION 9.2(A)(II) or (III) shall not relieve any Indemnifying Party from any other obligation be counted in determining whether the Threshold limitation is satisfied or Liability that it may have to any the Cap is reached, and Buyer Indemnified Party otherwise than under this Article VIII.
(d) With respect to any Third Party Claim for which indemnification is sought under Section 8.2, Selling Parties shall have the right to direct, through counsel of its own choosing, the defense or settlement of recover any such claim Buyer's Losses without regard to the Threshold limitation or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing or liability on behalf of any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIICap.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Indemnification by Selling Parties. (a) Subject From and after the Closing, each Selling Party agrees to the other terms and conditions of this Agreement, Selling Parties, jointly and severallyseverally indemnify, agree to indemnify defend and save Buyer and its respective Affiliates (including following the Closingincluding, without limitation, the Company and its SubsidiaryNew LP) and each of their respective officers, directors, stockholders managers, employees, agents and each of their respective Affiliates fiduciaries (each each, a “Buyer Indemnified Party”) against ), forever harmless from and hold them harmless against, and to pay to a Buyer Indemnified Party or reimburse a Buyer Indemnified Party for (in either case within ten business days of its receipt of notice in accordance with the extent terms of this Article XII from any Buyer Indemnified Party), any and all liabilities (whether contingent, fixed or unfixed, liquidated or unliquidated, or otherwise), obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses, interest, fines, penalties, actual or punitive damages or costs or expenses of any Losses and all investigations, proceedings, judgments, environmental analyses, remediations, settlements and compromises (including reasonable fees and expenses of attorneys, accountants and other experts) (individually and collectively, the “Losses”) actually sustained or incurred by any Buyer Indemnified Party relating to, resulting from, arising out of or resulting from (i) intentional misrepresentation, illegal conduct or fraud otherwise by virtue of any of the Selling Parties; and following: (iia) any misrepresentation or breach of a representation or warranty contained in this Agreement or in the Transaction Documents by any Selling Party, or non-compliance with or breach by any Selling Party of any of the covenants or agreements contained in this Agreement or the Transaction Documents to be performed by any Selling Party or any of their respective Affiliates; (b) the operation of the Business prior to the Closing Date, including the use of the Assets and the Excluded Assets prior to the Closing Date; (c) any Tax liability of any Selling Party whatsoever, including, without limitation, any Tax liability with respect to or arising from the transactions contemplated hereby or the structuring of the transactions contemplated hereby, or any Tax liability under Texas bulk sales laws; (d) any violations of or obligations under Environmental and Safety Requirements relating to acts, omissions, circumstances or conditions to the extent existing or arising on or prior to the Closing Date, whether or not such acts, omissions, circumstances or conditions constituted a violation of Environmental and Safety Requirements as then in effect; (e) any liabilities relating to or arising from the provision of (or failure to provide) professional medical services prior to the Closing Date, including any liabilities relating to the failure, prior to the Closing Date, to adhere to or comply with any Medicare and Medicaid requirements or Fraud and Abuse Laws; (f) any action, demand, proceeding, investigation or claim (whenever made) by any third party (including Governmental Authorities) against or affecting Buyer or its Affiliates which, if successful, would give rise to or evidence the existence of or relate to a misrepresentation or breach of any covenant or agreement of the Selling Parties representations, warranties or covenants contained herein. Notwithstanding anything herein to in this Agreement or the contrary, no obligation to indemnify shall exist for Losses arising from a breach Transaction Documents of any representation Selling Party; (g) the Excluded Assets or warranty set forth Excluded Liabilities; 21 (h) any claim for payment of fees and/or expenses as a broker or finder in Sections 3.16 connection with the origin, negotiation, execution or consummation of this Agreement based upon any alleged agreement between the claimant and 3.28 hereof (except for fraud or intentional misrepresentations).
(b) The amount of any Loss subject to indemnification under this Section 8.2 shall be calculated net of Selling Party; (i) any insurance proceeds actually received claim by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made by any third party.
(c) A Buyer Indemnified Party shall give any Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference Xxxxxxx with respect to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection with any such claim; providedtransactions contemplated herein, howeverincluding, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.
(d) With respect to any Third Party Claim for which indemnification is sought under Section 8.2, Selling Parties shall have the right to direct, through counsel of its own choosingwithout limitation, the defense or settlement of any such claim or proceeding at New LP Asset Transfer, the Distribution Transactions and the Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf sale of the Indemnifying Parties in writing their obligation Transferred Interests to indemnify Buyer Indemnified Party hereunder against Buyer; or (j) any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceedingrelating to, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Partyarising out of, or (ii) contains an admission in connection with, the failure of wrongdoing Clearview to maintain either a Pharmacy Board Permit or liability on behalf of a CLIA Certificate at any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause time prior to the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIIClosing Date.
Appears in 1 contract
Indemnification by Selling Parties. (a) Subject to the other terms and conditions of this Agreement, The Selling Parties, Parties jointly and severally, severally agree to indemnify Buyer and its Affiliates (including following the Closing, the Company and its Subsidiary) and their respective officers, directors, stockholders and each of their respective Affiliates (the Purchaser Indemnified Parties against, and agrees to hold each a “Buyer Indemnified Party”) against and hold of them harmless from, any and all Losses incurred or suffered by them relating to the extent of any Losses or arising out of or resulting in connection with any and all Losses suffered, sustained, incurred or required to be paid by any Purchaser Indemnified Party because of or that result from or arise out of:
(ia) intentional misrepresentationthe untruth, illegal conduct inaccuracy or fraud of any of the Selling Parties; and (ii) any breach of any covenant representation or warranty, or the failure to fulfill any agreement or covenant, of either of the Selling Parties contained herein. Notwithstanding anything herein in this Agreement or in any certificate or other writing furnished to the contrary, no obligation to indemnify shall exist for Losses arising from a breach Purchaser or Travis by or on behalf of any representation or warranty set forth either of the Selling Parties in Sections 3.16 and 3.28 hereof (except for fraud or intentional misrepresentations).conxxxxxxn herewith;
(b) The amount of any Loss subject to indemnification under this Section 8.2 shall be calculated net of (i) any insurance proceeds actually received by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made by any third party.the Excluded Assets or the Excluded Obligations;
(c) A Buyer the assertion against any Purchaser Indemnified Party shall give any Selling Party written notice of any claim, assertion, event Liability relating to or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount arising out of the Lossbusiness, if known, and method operations or assets of computation thereof, and containing a reference the Seller prior to the provisions Closing Date or the actions or omissions of this Agreement in respect of which such right of indemnification is claimed the Seller's directors, officers, shareholders, employees or arises and shall include copies of all correspondence received from any third party in connection with any such claim; provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except agents prior to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIII.Closing Date; or
(d) With respect any claim by The Geneva Companies pursuant to any Third Party Claim agreement with Seller or Affiliate of Seller; ; PROVIDED, HOWEVER, that, except for Losses pursuant to (d) above, the initial $5,000 of Losses incurred or paid by the Purchaser Indemnified Parties for which indemnification is sought under Section 8.2, the Selling Parties would otherwise be liable to such Purchaser Indemnified Parties hereunder shall be the liability of such Purchaser Indemnified Parties and the Selling Parties shall have no liability therefor and PROVIDED, FURTHER that in no event shall Seller be liable to the right to direct, through counsel of its own choosing, the defense or settlement of any such claim or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing or liability on behalf of any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Purchaser Indemnified Parties shall reasonably cooperate and under this ARTICLE IX for an aggregate amount in good faith with Shareholder with respect to any claims subject to this Article VIIIexcess of $5,500,000.
Appears in 1 contract
Samples: Asset Purchase Agreement (Travis International Inc)
Indemnification by Selling Parties. (a) Subject to the other terms and conditions of this Agreement, Selling Parties, jointly and severally, hereby agree to defend, indemnify Buyer and its Affiliates (including following the Closinghold harmless Buyer, the Company Subsidiaries, each fiduciary of Buyer's employee benefit plans and its Subsidiary) and their respective each of Buyer's shareholders, affiliates, officers, directors, stockholders employees, agents, successors and assigns ("Buyer's Indemnified Persons") and shall reimburse Buyer's Indemnified Persons for, from and against each claim, fine, judgment, oversight cost, assessment, loss, liability, cost and expense (including without limitation, interest, penalties, costs of their respective Affiliates preparation and investigation, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors but excluding consequential damages, including without limitation, lost profits) (each a “Buyer Indemnified Party”collectively, "Losses"), directly or indirectly relating to, resulting from or arising out of:
(a) against and hold them harmless to the extent Any untrue representation, misrepresentation, breach of warranty or nonfulfillment of any Losses arising out of covenant, agreement or resulting from (i) intentional misrepresentation, illegal conduct other obligation by or fraud of any of the Selling Parties; and (ii) any breach of any covenant or agreement of the Selling Parties Party contained herein. Notwithstanding anything herein , any Schedule hereto or in any certificate, document or instrument delivered to the contrary, no obligation to indemnify shall exist for Losses arising from a breach of any representation or warranty set forth in Sections 3.16 and 3.28 hereof (except for fraud or intentional misrepresentations)Buyer pursuant hereto.
(b) The amount Any Tax liability of Seller relating to the Assets not previously paid, or for which adequate reserves have not been established in the balance sheet included in the Financial Statements, which is successfully asserted or assessed against it for any event or period prior to the Closing Date (regardless of whether the possibility of the assertion or assessment of any Loss subject such Tax liability shall have been disclosed to indemnification under this Section 8.2 shall be calculated net of (i) any insurance proceeds actually received by Buyer Indemnified Party on account of such Loss, and (ii) any indemnification payments made by any third partyat or prior to the Closing).
(c) A Any obligation or liability of Seller not included in the Assumed Liabilities, and any and all loss, liability or damage suffered or incurred by Buyer Indemnified Party shall give any Selling Party written notice of any claim, assertion, event or proceeding as to which such Buyer Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount by reason of the Loss, if known, and method of computation thereof, and containing a reference failure by Seller to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises and shall include copies of all correspondence received from any third party in connection comply with any such claim; provided, however, that the failure to provide such notice shall not release the Indemnifying Parties from any of their obligations under this Article VIII except to the extent that the Indemnifying Parties are materially prejudiced by such failure and shall not relieve any Indemnifying Party from any other obligation or Liability that it may have to any Buyer Indemnified Party otherwise than under this Article VIIIBulk Sales Laws.
(d) With respect The AAO Claim;
(e) Any other Losses incidental to any Third Party Claim for which indemnification is sought under Section 8.2, Selling Parties shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim or proceeding at Selling Parties’ expense, provided that such Selling Parties acknowledge on behalf of the Indemnifying Parties in writing their obligation to indemnify Buyer Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If Selling Parties elect to assume the defense of any such claim or proceeding, Selling Parties shall consult with Buyer Indemnified Party for the purpose of allowing Buyer Indemnified Party to participate in such defense. In the event Selling Parties assume the defense of a Third Party Claim, Selling Parties shall not have the right to settle such claim without the consent of any Buyer Indemnified Party, unless such settlement (i) includes injunctive or other equitable relief imposed against any Buyer Indemnified Party, or (ii) contains an admission of wrongdoing or liability on behalf of any Buyer Indemnified Party or its Affiliates. Each Buyer Indemnified Party shall, and shall cause the Company and its Subsidiary to, reasonably cooperate with Selling Parties and to provide Selling Parties and their counsel with reasonable access to all records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise reasonably cooperate with Selling Parties in the defense or settlement thereof. If Selling Parties elect to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Selling Parties consent in writing to such payment, which consent shall not be unreasonably withheld or delayed. If Selling Parties fail to defend or if, after commencing or undertaking any such defense, Selling Parties fail to prosecute or withdraw from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof. If Buyer Indemnified Party assumes the defense of any such claim or proceeding and proposes to settle such claim or proceeding, then Buyer Indemnified Party shall give Shareholder prompt written notice thereof, and Selling Parties shall have the right to participate in the settlement of such claim or proceeding and to consent thereto or assume or reassume the defense of such claim or proceeding. In all circumstances, Buyer Indemnified Parties shall reasonably cooperate and in good faith with Shareholder with respect to any claims subject to this Article VIIIforegoing.
Appears in 1 contract
