Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereof.
Appears in 3 contracts
Samples: Share Exchange Agreement (Myrick Frederick JR), Share Exchange Agreement (Peck Jeffrey), Share Exchange Agreement (Jensyn Acquisition Corp.)
Indemnification by Stockholders. Subject to By virtue of the other provisions Stockholders' execution and delivery of this ARTICLE 9, from and after the ClosingPurchase Agreement, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAChave agreed, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in executing this Agreement each Stockholder hereby confirms that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligationsStockholder agrees, subject to the limitations terms and conditions of this Agreement and Article V of the Purchase Agreement:
(a) to indemnify and hold harmless TriZetto, its officers, directors, stockholders, employees and agents from and against any and all Claims and Liabilities to the extent provided in Article V of the Purchase Agreement;
(b) to establish the Escrow pursuant to this Agreement to secure the indemnification obligations of the Stockholders under Article V of the Purchase Agreement;
(c) without limiting such Stockholder's obligations under paragraph (a) above, that in the event TriZetto, its officers, directors, stockholders, employees and agents (hereinafter, collectively, "TriZetto") incurs any Claims and Liabilities provided in Article V of the Purchase Agreement, the Escrowed Property shall, subject to the provisions of the Purchase Agreement requiring an offset to the Promissory Notes (prior to making a claim against the Escrowed Property) and this Agreement, be transferred to TriZetto to compensate TriZetto for such Claims and Liabilities, with the portion of the Escrowed Property to be so transferred to be pro rata as to each Claim and Liability among the Stockholders according to each Stockholder's proportionate share of the Escrowed Property set forth in Section 9.3 hereofon Exhibit A hereto (the "Pro Rata Share");
(d) to appoint the Representative as the Stockholders' representative, attorney-in-fact and agent for purposes of this Agreement to act for and on behalf of each Stockholder as provided herein, and to the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken or made by the Representative on the Stockholders' behalf under this Agreement; and
(e) to all of the other terms and conditions of this Agreement.
Appears in 1 contract
Indemnification by Stockholders. (a) Subject to the other provisions terms and conditions contained herein, Finisar, its officers, directors, employees and attorneys, all Subsidiaries and Affiliates of this ARTICLE 9, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JACFinisar, and each the respective officers, directors, employees and attorneys of its Affiliates such entities (all such persons and each of its respective Representatives, and successors and assigns, entities being collectively referred to as the case may "Finisar Group") shall be (entitled to recover from the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, Escrow any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, expenses (including reasonable attorneys’ legal fees and costs expenses) which any member of investigation, suffered the Finisar Group may sustain or paid incur which are caused by them (collectively, “Losses”) as a result and to the extent arising or arise out of: of (i) any inaccuracy in or breach of any representations of the representations, warranties or warranties covenants made by Demeter in this Agreement, including the Company or any Stockholder; and Demeter Disclosure Schedule, (ii) any breach by Demeter Transaction Expenses in excess of the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to amount set forth on the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by Demeter Transaction Expense Schedule and reflected in the JAC Representative on behalf calculation of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) applicable Exchange Ratio, or (iii) aboveany breach of this Article IX or the Escrow Agreement (collectively, "Finisar Losses").
(b) unless No member of the Finisar Group shall be entitled to recover any Finisar Losses until the aggregate amount of all Finisar Losses under all claims shall exceed $150,000 (the "Deductible Amount"); provided, however, that Finisar Losses under Section 9.2(a)(ii) shall be recoverable in full without regard to the Deductible Amount.
(c) The right of a member of the Indemnifying Party’s obligations Finisar Group to indemnify the JAC Indemnified Parties pursuant to recover a Finisar Loss under this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, Article IX is subject to the limitations set forth condition that the Stockholders' Representative (as defined in Section 9.3 hereof9.6) shall have received written notice of an Indemnification Claim (as defined in Section 9.3) for such Finisar Loss on or before the Termination Date.
(d) The provisions of Section 9.2(b) above and 9.5 below shall not limit, in any manner, any remedy at law or in equity to which any member of the Finisar Group shall be entitled against Demeter or any stockholder of Demeter as a result of willful fraud or intentional misrepresentation by Demeter, any stockholder of Demeter or any of their respective representatives.
(e) The amount of Finisar Losses shall be computed after giving effect to the receipt of any insurance proceeds and tax benefits with respect thereto.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Finisar Corp)
Indemnification by Stockholders. Subject to the limitations of Section 11.11, the Stockholders shall jointly and severally indemnify, defend and hold harmless Clarant, Newco, the Company, and the Surviving Corporation and their respective officers, directors, employees, agents, representatives and Affiliates (other provisions of this ARTICLE 9than the Stockholders) (each, a "Clarant Indemnified Party"), at all times from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them this Agreement harmless from and against, and to promptly pay to a Clarant Indemnified Party or reimburse and pay each of them as actually incurred with respect toa Clarant Indemnified Party for, any and all losses, liabilities, obligations, damagesdeficiencies, deficienciesdemands, claims, suits, actions, suits, proceedings, demandsor causes of action, assessments, judgmentslosses, costs, expenses, filing fees, interest, fines, penalties, diminutions or damages or costs or expenses of any and all investigations, proceedings (including appeals, arbitration and mediation), judgments, environmental analyses, remediations, settlements and compromises (in value, lost earnings, costs and expenses, including cluding reasonable attorneys’ fees and costs expenses of investigationattorneys, suffered or paid by them accountants and other experts) (individually and collectively, “the "Losses”") as a result and to the extent sustained or incurred by any Clarant Indemnified Party, resulting from or arising out of: of (ia) any breach of the representations and warranties of the Stockholders or the Company set forth herein or on the schedules, exhibits or certificates delivered in connection herewith, (b) any breach of any representations covenant or warranties agreement on the part of the Stockholders or the Company under this Agreement, (c) any liability under the 1933 Act, the 1934 Act, or other Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to Clarant or its counsel by the Company or the Stockholders (but in the case of the Stockholders, only if such statement was provided in writing) contained in the Registration Statement or any Stockholderprospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading, (d) any Claim or Action arising out of or relating to any purchase or redemption of Company Stock, Convertible Securities or Options by the Company prior to the date of this Agreement; (e) except to the extent reserved for (other than as a deferred Tax item) on the most recent financial statements provided pursuant to Section 7.9, or if no such financial statements are provided, the Company Financial Statements dated as of the Balance Sheet Date, any liability of the Company or any Subsidiary for Taxes for any Pre-Closing Period; or (f) any matter identified on SCHEDULE 11.1(f); provided, however, (i) that in the case of any indemnity arising pursuant to clause (c) such indemnity shall not inure to the benefit of Clarant, Newco, the Company or the Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided in writing corrected information to Clarant counsel and to Clarant for inclusion in the final prospectus, and such information was not so included or properly delivered, and (ii) that no Stockholder shall be liable for any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties obligation pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject Section 11.1 to the limitations set forth in Section 9.3 hereofextent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9The Stockholders, from jointly and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointlyseverally, shall indemnify JACand defend Purchaser and its Affiliates (including Marquis and Live) and their respective Representatives (collectively, the “Purchaser Indemnitees”) from and against, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and shall hold each of them harmless from and against, and shall pay and reimburse and pay each of them as actually for, any and all Losses incurred or sustained by, or imposed upon, the Purchaser Indemnitees based upon, arising out of, with respect to, or by reason of (a) any inaccuracy in or breach of the representations and all losseswarranties set forth in Section 4 or in any certificate delivered by Stockholders pursuant to this Agreement (other than in respect of Section 4.15, liabilitiesit being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Section 8.05); (b) any breach or non-fulfillment of any covenant, obligationsagreement, damagesor obligation to be performed by Sellers pursuant to this Agreement (excluding (i) covenants, deficienciesagreements, actionsand obligations to be performed by Marquis after the Closing and (ii) any covenant, suitsagreement, proceedingsor obligation in Section 8.05, demandsit being understood that the sole remedy for any such breach, assessmentsviolation, judgmentsor failure shall be pursuant to Section 8.05); or (c) any Liability not reflected on the Closing Date Balance Sheet; subject to the following terms and conditions, penaltiesas applicable. Any such Losses shall be limited to the amount thereof that remains after deducting therefrom (i) any Tax Benefits actually realized and to the extent utilized by Purchaser Indemnitees in the computation of their taxable income in the year of the Loss and the first two (2) subsequent years following the year of the Loss and (ii) any insurance proceeds actually received by the Purchaser Indemnitee in respect of any such claim, diminutions in value, lost earnings, less any related costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate cost of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks.
10.01 No Claim for Indemnification until Loss exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereof100,000.
Appears in 1 contract
Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally jointly and not jointlyseverally, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent of a Third Party Claim arising out of: (i) any breach of any representations or warranties by the Company or any an Stockholder; and (ii) any breach by the Company or any an Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereof.
Appears in 1 contract
Samples: Share Exchange Agreement (Jensyn Acquisition Corp.)
Indemnification by Stockholders. Subject (a) Each Stockholder and its successors and assigns, jointly and severally, shall indemnify and defend the Parent Indemnified Parties and hold them harmless from and against any and all Losses of or against the Parent Indemnified Parties after the Closing to the other provisions extent resulting from or arising out of this ARTICLE 9(i) any breach as of the date hereof or as of the Closing Date of any representation or warranty made by the Company, from and any Company Subsidiary or any Stockholder in the Transaction Documents, (ii) any breach or non-fulfillment of any agreement or covenant of the Company or any Company Subsidiary contained in the Transaction Documents which are to be performed prior to Closing, (iii) any breach or non-fulfillment of any agreement or covenant of the Stockholders contained in the Transaction Documents which are to be performed after the Closing, (iv) any inaccuracy in the Stockholders Estimated Statement that is not adjusted through the reconciliation to the Final Statement pursuant to Section 2.4, (v) the “Stockholders Indemnifying Party”amount of any Company Transaction Expenses not taken into account in determining Merger Consideration pursuant to Section 2.1(a), severally and not jointly(vi) Pre-Closing Taxes except to the extent previously paid or reimbursed pursuant to Article 10, shall indemnify JAC(vii) any suit or Proceeding relating to actions or failures to act that occurred prior to the Closing, and (viii) amounts paid holders of Dissenting Shares in excess of the portion of the Final Merger Consideration applicable to such holders of Dissenting Shares (determined as if such holders did not hold Dissenting Shares).
(b) Subject to the limitations, conditions and restrictions set forth in this Agreement, each of its Affiliates Stockholder shall severally indemnify and each of its respective Representatives, and successors and assigns, as defend the case may be (the “JAC Parent Indemnified Parties”) Parties and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, against any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, Losses incurred or suffered or paid by them (collectively, “Losses”) as a result and to the extent resulting from or arising out of: of (i) any breach of any representations representation, warranty or warranties covenant made by the Company such Stockholder in such Stockholder’s Letter of Transmittal or any Stockholder; in Article 13 to this Agreement and (ii) any breach by failure of such Stockholder to have good, valid and marketable title, free and clear of all Liens, to the capital stock of the Company or any Stockholder issued in the name of any of its covenants or agreements contained such Stockholder.
(c) Subject to the limitation, conditions and restrictions set forth in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC Agreement, each Restricted Stockholder, jointly and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”)severally, and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Parent Indemnified Parties for and hold them harmless from and against any and all of such obligations, subject Losses incurred or suffered by them to the limitations set forth in extent resulting from any breach of Section 9.3 hereof13.2 by any Restricted Stockholder.
Appears in 1 contract
Samples: Merger Agreement (Enernoc Inc)
Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9The Purchaser and its Affiliates, from Representatives, officers, directors, employees, successors and after the Closingassigns (each, the Stockholders (the a “Stockholders Indemnifying Purchaser Indemnified Party”)) shall be indemnified for and held harmless by (1) the Stockholders, severally and but not jointly, shall indemnify JACas to Breaches of representations and warranties identified in subsection (a) below, and each of its Affiliates and each of its respective Representatives, and successors and assigns(2) Xxxxxx X. Xxxxx, as the to matters identified in subsections (b) through (h) below, in each case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, against any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earningsLiabilities, costs and expenses, or expenses (including reasonable attorneys’ fees fees), judgments, fines, losses, claims, damages and costs amounts paid in settlement (including any Liability relating to third-party claims), but excluding any incidental, liquidated, special, indirect, punitive or consequential damages or lost profits (unless such damages or lost profits are part of investigationa Third Party Claim) (each a “Loss” and, suffered or paid by them (collectivelytogether, “Losses”), arising from or in connection with:
(a) as a result and the Breach of any representation or warranty made by the Stockholders under Article IV hereof;
(b) the Breach of any representation or warranty contained in this Agreement, other than in Article IV hereof,
(c) the Breach of any representation or warranty made by any of the Stockholders under Section 4.2 (Ownership; Title to Shares) or Section 4.3 (Due Authorization) of this Agreement, or any under Section 3.1 (Ownership; Title to Shares) or Section 3.2 (Due Authorization) of the extent arising out of: Restricted Stock Purchase Agreements;
(d) the Breach of any covenant or agreement made by any of the Stockholders or the Restricted Stockholders contained in this Agreement or the Restricted Stock Purchase Agreements, respectively;
(e) any liability or obligation of the Company for (i) any breach Taxes that are the responsibility of any representations the Stockholders or warranties by the Company or any Stockholder; and Restricted Stockholders pursuant to Section 7.3, (ii) any breach by Taxes incurred in any Tax period beginning after the Company Effective Date, but arising from the settlement or other resolution with any Stockholder Governmental Authority of an asserted Tax liability which relates to any of its covenants Tax period or agreements contained in this Agreement that are required to be performed prior to portion thereof ending on or before the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) Effective Date, or (iii) abovethe unpaid Taxes of any Person under Treasury Regulations Section 1.1502-6 (or any similar provision of other federal, provincial, state, local or foreign Law), as a transferee or successor, by Contract or otherwise, in each case whether or not disclosed to the Purchaser in any Schedules to this Agreement, the Company Financial Statements or otherwise;
(f) unless the aggregate of all noncompliance with any Legal Requirements related to fraudulent transfers in respect of the Indemnifying PartyTransactions;
(g) any act of fraud by the Stockholder Representative, any Stockholder or any officer, director, Affiliate or employee of any Stockholder related to this Agreement or any of the Ancillary Agreements; and
(h) failure of the Company to have entered into a valid, enforceable agreement with any Person who was involved in the creation or development of any of the Company’s obligations to indemnify the JAC Indemnified Parties Intellectual Property pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), which such Person irrevocably and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject unconditionally assigned to the limitations set forth in Section 9.3 hereofCompany all Intellectual Property Rights pertaining to the Intellectual Property so created or developed by such Person.
Appears in 1 contract
Indemnification by Stockholders. Subject Each Stockholder hereby agrees, jointly and severally, to the other provisions of this ARTICLE 9indemnify, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) defend and hold each of them the Parent and the Merger Sub and their officers, directors, employees, owners, agents and Affiliates, harmless from and against, and reimburse and pay each in respect of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficienciescosts and expenses of any kind and nature whatsoever (including, without limitation, interest and penalties, reasonable expenses of investigation and court costs, reasonable attorneys' fees and disbursements and the reasonable fees and disbursements of other professionals) which may be sustained or suffered by any of them (collectively, "Losses"), arising out of or resulting from (i) any breach or inaccuracy of any representation or warranty or the breach of or failure to perform any warranty, covenant, undertaking or other agreement of the Company or any Stockholder contained in this Agreement or any other Merger Document; (ii) fraud or intentional misrepresentation on the part of the Company or any Stockholder; (iii) any Taxes required to be paid, indemnified or reimbursed by the Company or the Stockholders pursuant to Section 10.11; (iv) any and all Claims by any Person subsequent to the date hereof relating to the single share described in Schedule 3.3; (v) the failure by the Company to obtain a favorable determination letter from the Internal Revenue Service for its ShopRite of Xxxxxxxxxx, Inc. Savings and Investment Plan ("401k Plan); (vi) any event or circumstance which is specified as entitling Parent or Merger Sub to indemnification under the Indemnity Agreement and is not otherwise paid thereunder (subject, however, to all applicable limits on maximum liability set forth in such Indemnity Agreement; and/or (vii) any and all actions, suits, investigations, proceedings, demands, assessments, judgmentsaudits, penalties, diminutions in value, lost earnings, costs judgments and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent claims arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained the foregoing. In furtherance of the rights described in this Agreement that are required Section 8.2, the Parent and the Merger Sub shall have the right to be performed prior reimbursed from the Escrow Accounts established pursuant to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC Section 2.10 hereof and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereofEscrow Agreements.
Appears in 1 contract
Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereof.9.5.1, the Stockholders shall severally and not jointly indemnify, defend, save and hold the Buyer and its Affiliates and their respective Representatives (collectively, the "Buyer Indemnitees") harmless from and against all Damages imposed on, sustained, incurred or suffered by, or asserted against, any of the Buyer Indemnitees, whether in respect of Third Party Claims or claims between the Parties hereto, resulting or arising from:
9.2.1 The Company's, any Stockholder's or the Stockholders Representatives' breach of any representation or warranty contained in this Agreement or the Transaction Documents to which the Company, a Stockholder or the Stockholders Representative is a party;
9.2.2 The Company's, any Stockholder's or the Stockholders Representative's breach or nonfulfillment of any covenant, obligation or agreement made by the Company, a Stockholder or the Stockholders Representative in or pursuant to this Agreement or in any Transaction Document to which the Company, a Stockholder or the Stockholders Representative is a party;
9.2.3 any Pre-Closing Taxes;
9.2.4 any Transaction Expenses or Company Cash Liabilities;
9.2.5 any assertion or recovery by any Stockholder in respect of any breach of fiduciary duty, derivative or other claim in respect of the transactions contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement, including any claim as to the allocation of the consideration provided in this Agreement, the Paying Agent Agreement or the Escrow Agreement, fair value, interest and expenses or other amounts pursuant to appraisal rights exercised or purportedly exercised pursuant to applicable Law; 9.2.6 the application of Sections 280G, 409A or 4999 of the Code to any amount paid with respect to any incentive plan or award of the Company;
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Progenics Pharmaceuticals Inc)
Indemnification by Stockholders. Subject to the limitations of Section 11.11, the Stockholders shall jointly and severally indemnify, defend and hold harmless Clarant, Newco, the Company, and the Surviving Corporation and their respective officers, directors, employees, agents, representatives and Affiliates (other provisions of this ARTICLE 9than the Stockholders) (each, a "Clarant Indemnified Party"), at all times from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them this Agreement harmless from and against, and promptly pay to a Clarant Indemnified Party or reimburse and pay each of them as actually incurred with respect toa Clarant Indemnified Party for, any and all losses, liabilities, obligations, damagesdeficiencies, deficienciesdemands, claims, suits, actions, suits, proceedings, demandsor causes of action, assessments, judgmentslosses, costs, expenses, filing fees, interest, fines, penalties, diminutions or damages or costs or expenses of any and all investigations, proceedings (in- cluding appeals, arbitration and mediation), judgments, environmental analyses, remediations, settlements and compromises (in value, lost earnings, costs and expenses, including cluding reasonable attorneys’ fees and costs expenses of investigationattorneys, suffered or paid by them accountants and other experts) (individually and collectively, “the "Losses”") as a result and to the extent sustained or incurred by any Clarant Indemnified Party resulting from or arising out of: of (ia) any breach of the representations and warranties of the Stockholders or the Company set forth herein or on the schedules, exhibits or certificates delivered in connection herewith, (b) any breach of any representations covenant or warranties agreement on the part of the Stockholders or the Company under this Agreement, (c) any liability under the 1933 Act, the 1934 Act, or other Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to Clarant or its counsel by the Company or the Stockholders (but in the case of the Stockholders, only if such statement was provided in writing) contained in the Registration Statement or any Stockholderprospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading, (d) any Claim or Action arising out of or relating to any purchase or redemption of Company Stock, Convertible Securities or Options by the Company prior to the date of this Agreement, (e) except to the extent reserved for (other than as a deferred Tax item) on the most recent financial statements provided pursuant to Section 7.9, or if no such financial statements are provided, the Company Financial Statements dated as of the Balance Sheet Date, any liability of the Company or any Subsidiary for Taxes for any Pre-Closing Period; or (f) any matter identified on SCHEDULE 11.1(F); provided, however, (i) that in the case of any indemnity arising pursuant to clause (c) such indemnity shall not inure to the benefit of Clarant, Newco, the Company or the Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided in writing corrected information to Clarant counsel and to Clarant for inclusion in the final prospectus, and such information was not so included or properly delivered, and (ii) that no Stockholder shall be liable for any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties obligation pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject Section 11.1 to the limitations set forth in Section 9.3 hereofextent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Indemnification by Stockholders. Subject Each Stockholder (the "Stockholder Indemnitor") hereby agrees to defend, indemnify, and hold the Company and all other provisions of this ARTICLE 9Stockholders, from and after the Closingtheir respective officers, directors, agents, representatives, Affiliates, successors and assigns (collectively, the Stockholders (the “Stockholders Indemnifying Party”"Indemnitees"), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against any claim, liability, obligation, expense, loss, or other damage (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Claims") asserted against, and reimburse and pay each imposed upon, or incurred by any of them as actually incurred in respect of:
(A) Any and all Claims resulting from any misrepresentation or breach of warranty or violation of any covenant made by such Stockholder Indemnitor hereunder, or in any certificate or agreement furnished or to be furnished by the Stockholder Indemnitor or any Stockholder Owner or Affiliate with respect toto such Stockholder Indemnitor hereunder (including, without limitation, any Non-Referral Agreement). It is hereby expressly understood and agreed that for the purposes of the foregoing indemnification, the term Claim shall include - 6 - the full amount of the Purchase Price paid by the Company, and all lossesother costs and expenses whatsoever which the Company incurs, liabilitiesin connection with the Company's purchase of any Shares pursuant to Section 3.3 above;
(B) Any and all Claims arising from or in connection with any act, obligationsomission, damages, deficiencies, or status of the Stockholder Indemnitor creating liability for violations of Xxxxx II; and
(C) Any and all actions, suits, proceedings, claims, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”)costs, and once this threshold has been exceeded, expenses incident to any item to which the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereofforegoing indemnity relates.
Appears in 1 contract
Indemnification by Stockholders. Subject Each Stockholder (the "Stockholder Indemnitor") hereby agrees to defend, indemnify, and hold the Company and all other provisions of this ARTICLE 9Stockholders, from and after the Closingtheir respective officers, directors, agents, representatives, Affiliates, successors and assigns (collectively, the Stockholders (the “Stockholders Indemnifying Party”"Indemnitees"), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against any claim, liability, obligation, expense, loss, or other damage (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Claims") asserted against, and reimburse and pay each imposed upon, or incurred by any of them as actually incurred in respect of:
(A) Any and all Claims resulting from any misrepresentation or breach of warranty or violation of any covenant made by such Stockholder Indemnitor hereunder, or in any certificate or agreement furnished or to be furnished by the Stockholder Indemnitor or any Stockholder Owner or Affiliate with respect toto such Stockholder Indemnitor hereunder (including, without limitation, any Non-Referral Agreement). It is hereby expressly understood and agreed that for the purposes of the foregoing indemnification, the term Claim shall include the full amount of the Purchase Price paid by the Company, and all lossesother costs and expenses whatsoever which the Company incurs, liabilitiesin connection with the Company's purchase of any Shares pursuant to Section 3.3 above;
(B) Any and all Claims arising from or in connection with any act, obligationsomission, damages, deficiencies, or status of the Stockholder Indemnitor creating liability for violations of Xxxxx II; and
(C) Any and all actions, suits, proceedings, claims, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”)costs, and once this threshold has been exceeded, expenses incident to any item to which the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereofforegoing indemnity relates.
Appears in 1 contract
Indemnification by Stockholders. Subject to The Stockholders shall jointly and severally indemnify, defend and hold harmless Clarant, Newco, the Company, and the Surviving Corporation and their respective officers, directors, employees, agents, representatives and Affiliates (other provisions of this ARTICLE 9than the Stockholders) (each, a "Clarant Indemnified Party"), at all times from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them this Agreement harmless from and against, and promptly pay to a Clarant Indemnified Party or reimburse and pay each of them as actually incurred with respect toa Clarant Indemnified Party for, any and all losses, liabilities, obligations, damagesdeficiencies, deficienciesdemands, claims, suits, actions, suits, proceedings, demandsor causes of action, assessments, judgmentslosses, costs, expenses, filing fees, interest, fines, penalties, diminutions in valueor damages or costs or expenses of any and all investigations, lost earningsproceedings (including appeals, costs arbitration and expensesmediation), judgments, environ mental analyses, remediations, settlements and compromises (including reasonable attorneys’ fees and costs expenses of investigationattorneys, suffered or paid by them accountants and other experts) (individually and collectively, “the "Losses”") as a result and to the extent sustained or incurred by any Clarant Indemnified Party resulting from or arising out of: of (ia) any breach of the representations and warranties of the Stockholders or the Company set forth herein or on the schedules, exhibits or certificates delivered in connection herewith, (b) any breach of any representations covenant or warranties agreement on the part of the Stockholders or the Company under this Agreement, (c) any liability under the 1933 Act, the 1934 Act, or other Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to Clarant or its counsel by the Company or the Stockholders (but in the case of the Stockholders, only if such statement was provided in writing) contained in the Registration Statement or any Stockholder; and prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading, (iid) any breach Claim or Action arising out of or relating to any purchase or redemption of Company Stock, Convertible Securities or Options by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date date of this Agreement; (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled e) except to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 extent reserved for (other than with respect to JAC Indemnifiable Claims under clauses (iias a deferred Tax item) or (iii) above) unless on the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties most recent financial statements provided pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereof.52
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Indemnification by Stockholders. Subject Regardless of any pre-Closing investigations, examinations or prior knowledge of Buyer or due diligence conducted by it or disclosure by Company or the Stockholders, the Stockholders, severally and not jointly and severally, hereby agree to indemnify and hold Buyer and its affiliates, together with their respective directors, officers, employees, managers, agents, advisors, and transferees, harmless from, against and with respect to any and all demands, claims, actions or causes of action, assessments, liabilities, losses, costs, damages, penalties, charges or expenses, including without limitation interest, penalties and reasonable counsel and accountants' fees, disbursements and expenses (collectively, "LOSSES") arising out of, or related to: (a) any breach of any representation, warranty, covenant or agreement made by Company or the Stockholders in this Agreement, including the Schedules and exhibits hereto or any other document or agreement delivered by or on behalf of Company or the Stockholders in connection therewith, (b) without limiting the foregoing in paragraph (a) of this Section 8.2 above, any Losses of Buyer or its affiliates that arise with respect to or relate to any period(s) from the date of this Agreement through and immediately before the Closing in connection with Company's acts or omissions or the operation of the Business (without 32 37 limiting the other provisions of this ARTICLE 9Section 8.2, from other than Losses that arise as a result of the performance by Company and after Stockholders of their obligations under Article IV of this Agreement during such period or that are described in clause (i) of the Closingdefinition of Excluded Losses), (c) the cancellation or termination of or the lack of performance under the Frexxxx Xxc Agreement (the "FREXXXX XXC INDEMNITY"), (d) the Experian Agreement (the "EXPERIAN INDEMNITY"), (e) any amounts paid to stockholders for each Dissenting Share in excess of the Closing Date Consideration Per Share Amount (the "DISSENTING SHARES INDEMNITY") or (f) any Losses of Buyer of its affiliates that arise with respect to claims or actions by third parties against Buyer, its affiliates or Surviving Corporation relating to the inability of Surviving Corporation to provide to such third party any 3-bureau merged report product or service required to be provided pursuant to any agreement between Company and such third party. Except as otherwise provided herein, the Stockholders liability of each Stockholder under this Section 8.2 shall not exceed thirty percent (30%) of the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each the value of its Affiliates and each the consideration payable to such Stockholder pursuant to Section 1.4 above or fifty percent (50%) of its respective Representatives, and successors and assignsthe value of the consideration payable to such Stockholder pursuant to Section 1.4 above, as the case may be (be, consistent with the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations percentages set forth in Section 9.3 hereof8.1(c) above, plus a fraction of the consideration payable to the other stockholders of Company pursuant to Section 1.4 above, the numerator of which is the total number of shares of Company Capital Stock held by such Stockholder, and the denominator of which is the total number of shares of Company Capital Stock held by all Stockholders.
Appears in 1 contract
Samples: Merger Agreement (Memberworks Inc)
Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9Article 8, from and after the Closing, :
(a) the Stockholders (jointly and severally solely to the “Stockholders Indemnifying Party”)extent of the Indemnification Escrow Funds) shall indemnify, severally protect and not jointly, shall indemnify JAC, defend Purchaser and its Affiliates (including the Surviving Corporation and the Company Subsidiaries) and each of its Affiliates and each of its their respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified PartiesPurchaser Indemnitees”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, against any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigationLosses incurred, suffered or paid paid, directly or indirectly, by them (collectively, “Losses”) as a result and to the extent of, in connection with, or arising out of: (i) any breach of any representations representation or warranties warranty made by the Company or any Stockholder; and contained in Article 3 (other than the Company Fundamental Representations), (ii) any breach breach, non-compliance or non-performance by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC Effective Time, and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) aboveany breach, non-compliance or non-performance by the Equityholders’ Representative of any of its covenants or agreements contained in this Agreement;
(b) unless each Stockholder (jointly and severally solely to the aggregate extent of all Indemnification Escrow Funds and, once there are no remaining Indemnification Escrow Funds, severally and not jointly) shall indemnify, protect and defend the Purchaser Indemnitees and hold them harmless against any Losses incurred by them as a result of any breach of the Indemnifying Party’s obligations to indemnify Company Fundamental Representations; and
(c) each Stockholder (severally and not jointly) shall indemnify, protect and defend the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (Purchaser Indemnitees and hold each of them harmless against any Losses incurred by them as a result of the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all breach of any representation or warranty made by such obligations, subject to the limitations set forth Stockholder in Section 9.3 hereofArticle 3.
Appears in 1 contract
Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9, from and after the Closing, the The Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, jointly agree to and shall indemnify JACin full Purchasers and their respective officers, directors, employees, agents, stockholders and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them partners (collectively, “Losses”the "Purchaser Indemnified Parties") and defend and hold them harmless against any loss, liability, deficiency, damage, expense or cost (including reasonable legal expenses), that Purchaser Indemnified Parties may suffer, sustain or become subject to, as a result and to the extent arising out of: of (ia) any misrepresentation in any of the representations or breach of any representations or of the warranties by of the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements Stockholders contained in this Agreement that are required or in any exhibits, schedules, certificates or other agreements or documents delivered or to be performed prior delivered at or before Closing pursuant to the terms of this Agreement (collectively, the "Related Documents"); (b) any breach of, or failure to perform, any agreement or covenant of the Company or the Stockholders contained in this Agreement or any of the Related Documents, including, without limitation, all claims, losses and damages in connection with the Excluded Liabilities; or (c) any matter disclosed on any schedule hereto which is not an Assumed Liability (collectively, "Purchaser Losses"). Subject to Section 6.5, in the event any Purchaser Indemnified Party incurs any Purchaser Losses, Purchasers, in addition to all other rights and remedies available to Purchasers, shall have the right to set off the amount of such Purchaser Losses, as finally determined in accordance herewith, against the amount of the Purchase Price which is owed pursuant to the Contingent Consideration, but Purchasers shall specifically have no right of off-set against any other agreement or right of any kind entered into as of the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties including, without limitation, any provision pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereofany Stockholder Employment Agreement or any amendment thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Clark/Bardes Holdings Inc)
Indemnification by Stockholders. Subject to the limitations of Section 11.11, the Stockholders shall jointly and severally indemnify, defend and hold harmless Clarant, Newco, the Company, and the Surviving Corporation and their respective officers, directors, employees, agents, representatives and Affiliates (other provisions of this ARTICLE 9than the Stockholders) (each, a "Clarant Indemnified Party"), at all times from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them this Agreement harmless from and against, and promptly pay to a Clarant Indemnified Party or reimburse and pay each of them as actually incurred with respect toa Clarant Indemnified Party for, any and all losses, liabilities, obligations, damagesdeficiencies, deficienciesdemands, claims, suits, actions, suits, proceedings, demandsor causes of action, assessments, judgmentslosses, costs, expenses, filing fees, interest, fines, penalties, diminutions in valueor damages or costs or expenses of any and all investigations, lost earningsproceedings (including appeals, costs arbitration and expensesmediation), judgments, environmental analyses, remediations, settlements and compromises (including reasonable attorneys’ fees and costs expenses of investigationattorneys, suffered or paid by them accountants and other experts) (individually and collectively, “the "Losses”") as a result and to the extent sustained or incurred by any Clarant Indemnified Party resulting from or arising out of: of (ia) any breach of the representations and warranties of the Stockholders or the Company set forth herein or on the schedules, exhibits or certificates delivered in connection herewith, (b) any breach of any representations covenant or warranties agreement on the part of the Stockholders or the Company under this Agreement, (c) any liability under the 1933 Act, the 1934 Act, or other Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to Clarant or its counsel by the Company or the Stockholders (but in the case of the Stockholders, only if such statement was provided in writing) contained in the Registration Statement or any Stockholderprospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading, (d) any Claim or Action arising out of or relating to any purchase or redemption of Company Stock, Convertible Securities or Options by the Company prior to the date of this Agreement; (e) except to the extent reserved for (other than as a deferred Tax item) on the most recent financial statements provided pursuant to Section 7.9, or if no such financial statements are provided, the Company Financial Statements dated as of the Balance Sheet Date, any liability of the Company or any Subsidiary for Taxes for any Pre-Closing Period; or (f) any matter identified on SCHEDULE 11.1(F); provided, however, (i) that in the case of any indemnity arising pursuant to clause (c) such indemnity shall not inure to the benefit of Clarant, Newco, the Company or the Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided in writing corrected information to Clarant counsel and to Clarant for inclusion in the final prospectus, and such information was not so included or properly delivered, and (ii) that no Stockholder shall be liable for any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties obligation pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject Section 11.1 to the limitations set forth in Section 9.3 hereofextent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder.
Appears in 1 contract
Indemnification by Stockholders. Subject Except to the other provisions of this ARTICLE 9extent waived by Dxxxx, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), agree severally and not jointlyjointly to defend, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them Dxxxx harmless from and against, against and reimburse and pay each of them as actually incurred with respect to, to any and all lossesloss, liabilitiesdamage, obligationsliability, damagesdeficiency, deficienciescost, actionsobligation, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expensesor expense, including reasonable attorneys’ ' fees and court costs of investigation, suffered resulting from or paid by them (collectively, “Losses”) as a result and with respect to the extent arising out of: (i) any a breach of any representations representation or warranties by the Company warranty of Stockholders contained in this Agreement or any Stockholdercertificate or document delivered to Dxxxx by Stockholders pursuant to this Agreement; and (ii) the failure of Stockholders to perform or comply with any breach covenant, agreement or obligation required by this Agreement to be performed or complied with by Stockholders (collectively, "Losses"). Each claim for Losses (as distinguished from claims to defend) shall, if not paid when due, bear interest at a rate equal to ten percent (10%) from the Company or date the Stockholders are required to pay such claim until the date such claim is satisfied in full; provided, that any Stockholder claim for indemnity made with respect to this Section 10.2 must be made by Dxxxx by notice in accordance with Section 12.6 hereof within the applicable periods of time as set forth in Section 10.1. Expiration of the applicable limitation period subsequent to the filing of any of its covenants or agreements claim hereunder and to which such period is applicable shall not terminate any such claim. Notwithstanding anything else to the contrary contained in this Agreement that are required to Section 8.2, the obligations of the Stockholders shall be performed prior to the Closing Date limited as follows:
(“JAC Indemnifiable Claims”). The JAC Indemnified Parties a) Stockholders shall not be entitled required to indemnification indemnify Dxxxx (A) for any individual Loss which may be asserted by the JAC Representative on behalf of JAC is less than $5,000 and the JAC Indemnified Parties(B) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless until the aggregate amount of all of Losses hereunder (together with Losses incurred under the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 Fabrica Agreement) exceeds $1,000,000 (the “Basket”), after which point Stockholders shall be obligated to indemnify Dxxxx from and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligationsagainst further Losses, subject to (A) immediately above, in excess of such amount) (all Losses meeting both (A) and (B) being "Eligible Losses"); and
(b) The maximum aggregate liability of the limitations Stockholders under this Section 8.2 shall be limited to $3,425,000 (apportioned among the Stockholders based on the relevant percentages set forth in Schedule 8.2) less any Losses paid under the Fabrica Agreement (the "First Phase Limit"); provided, however, that if the aggregate amount of Eligible Claims that are timely made by Dxxxx exceeds $3,425,000 (such excess amount, "Excess Eligible Losses") and if the Sales Contingency (as defined in the Fabrica Agreement) is met, that portion of Excess Eligible Losses up to an additional maximum amount of $8,575,000 (apportioned among the Stockholders based on the relevant percentages set forth in Schedule 8.2) less any Losses under the Fabrica Agreement not applied to the First Phase Limit shall be deferred (the "Deferred Losses"), without a claim for interest during the deferral period, until the later to occur of (i) the payment of the Contingent Sales Payment (as defined in the Fabrica Agreement) (at which time the Deferred Losses shall be setoff against the Contingent Sales Payment) and (ii) the final determination of such Excess Eligible Loss which amount shall be paid in immediately available funds within five (5) Business days thereafter; provided, however, that the limitations contained in Sections 8.2(a) and 8.2(b) shall not apply to (1) any breach of the representations made in Section 9.3 hereof5.1, the first sentence of Section 5.2, Section 5.7, or (2) any Losses in respect of Section 8.2(ii) above.
Appears in 1 contract
Indemnification by Stockholders. Subject to consummation of the other Closing and the further provisions of this ARTICLE 9Section 10.1, from Stockholders hereby severally (in proportion to their share ownership in MJA)agree to indemnify and after the Closinghold Westower, its subsidiaries, parents, affiliates, officers, directors, agents and employees (collectively, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC "Westower Indemnified Parties”") and hold each of them harmless from and againstagainst and with respect to any Damages to any Westower Indemnified Parties as hereinafter defined, provided that: (a) the Stockholders have received notice from Westower of a claim for indemnification under this Section with respect to the matters covered by Section 3.7 prior to the expiration of the applicable statute of limitations with respect to such matters, and reimburse and pay each (b) the Stockholders have received notice from Westower of them as actually incurred a claim for indemnification under Section 10.2 with respect toto all other matters within one (1) year from the Closing Date. The term "Damages," as used herein, shall include any claim, action, loss, cost, expense, liability, penalty or interest or damage, including, -45- without limitation, reasonable counsel fees, and all losses, liabilities, obligations, damages, deficiencies, reasonable costs and expenses of all actions, suits, proceedings, demands, assessments, judgmentsclaims and judgments resulting from, penaltiesoccurring in connection with, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) of any breach of any representations representation, warranty or warranties covenant by any of the Stockholders made in the Agreement or in any of the Stockholders' Closing Documents. Notwithstanding anything to the contrary set forth in this Article X, indemnification of the Westower Indemnified Parties by the Company Stockholders shall in excess of the aggregate for any amounts in excess Ten Million U.S. Dollars ($10,000,000) plus attorneys' fees and other cost included in Damages. Notwithstanding anything to the contrary set forth in this Agreement, with respect to claims for indemnification pursuant to this Section 10.1, Westower Indemnified Parties will not be entitled to any indemnification, defense or holding harmless, from the Stockholders, and the Stockholders will not be required to indemnify, defend or hold harmless any Stockholder; of the Westower Indemnified Parties, for any Damages unless and until, and only to the extent that, such claims exceed Two Hundred Fifty Thousand U.S. Dollars ($250,000) in the aggregate, at which time the Stockholders shall be liable for all such Damages including the first $250,000. The representations and warranties of the Stockholders and MJA herein contained shall survive the Closing (y) with respect to matters covered by Section 3.7 of this Agreement, solely for the period ending on the expiration of the applicable statutes or limitations, and (iiz) with respect to all other representations and warranties contained in Article III and IV of this Agreement, solely for a period of one (1) year from the Closing Date. The rights of the Westower Indemnified Parties under this Article X shall be their exclusive remedy with respect to any breach claim for Damages; provided, however, that the foregoing clause of this sentence shall not be deemed a waiver by the Company or any Stockholder party to this Agreement of any of its covenants rights or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted remedies arising by the JAC Representative on behalf reason of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate any claim of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereoffraud.
Appears in 1 contract
Indemnification by Stockholders. Subject to the other provisions terms and conditions of this ARTICLE 910 and the terms and conditions set forth in ARTICLE 13, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”)each Stockholder, severally and not jointlyjointly (pro rata in accordance with the portion of the Merger Consideration received by each Stockholder), shall indemnify JACindemnify, defend, reimburse and each of its Affiliates and each of its hold harmless Parent, the Surviving Corporation, their respective RepresentativesAffiliates, and successors and assignsassigns and the respective officers, as directors, employees, attorneys, agents and stockholders of the case may be foregoing (the “JAC Parent Indemnified Parties”) and hold each of them harmless from and againstagainst any and all Losses incurred or sustained by, and reimburse and pay each of them as actually incurred or imposed upon, such Parent Indemnified Party based upon, arising out of, with respect to, relating to or by reason of:
(a) any and all lossesinaccuracy in or breach of any of the representations or warranties of the Company in ARTICLE 3;
(b) any breach or non-fulfillment of any covenant, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions agreement or obligation to be performed by Stockholders pursuant to this Agreement;
(c) any Company Transaction Expenses or Indebtedness outstanding as of the Closing to the extent not paid or satisfied by the Company or Stockholders at or prior to the Closing;
(d) any Taxes for the Pre-Closing Tax Period (including the pre-Closing portion of any Straddle Period) to the extent not included in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs the computation of investigation, suffered Company Transaction Expenses or paid by them Closing Net Working Capital (collectively, “LossesPre-Closing Taxes”) as a result and ), to the extent that such Taxes have not been reimbursed under a claim made under the R&W Insurance Policy; or
(e) any of the matters set forth on Section 10.1(e) of the Parent Disclosure Schedule. Any claims arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) b), (c), (d), or (iiie) above) unless the aggregate of all of the Indemnifying Party’s obligations this Section 10.1 are referred to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the herein as “BasketExcluded Claims.”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereof.
Appears in 1 contract
Samples: Merger Agreement (Tegna Inc)
Indemnification by Stockholders. (a) Subject to the other provisions of this ARTICLE 9, from and after the ClosingArticle X, the Stockholders (the “Stockholders Indemnifying Party”)Stockholders, severally jointly and not jointlyseverally, shall hereby agree to indemnify JACand hold Cordant and its Affiliates, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them assigns harmless from and against, and reimburse and pay each of them as actually incurred with respect to, against any and all lossesclaims, demands, orders, allegations, actions, damages, liabilities, obligationsincluding liabilities arising under principles of strict or joint and several liability, damagesliens, deficiencieslosses or other obligations whatsoever, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, together with costs and expenses, including reasonable attorneys’ fees and costs disbursements of investigation, suffered or paid by them counsel and expenses of investigation (collectively, “Losses”) as a result and to the extent "LOSSES"), arising out of: , based upon or caused by (i) the inaccuracy of any representation or the breach of any representations warranty of the Stockholders contained in this Agreement or warranties in any agreement, certificate or other instrument delivered by the Company Stockholders pursuant to this Agreement, or any Stockholder; and (ii) any breach or nonperformance by the Company or any Stockholder Stockholders of any of its their covenants or agreements contained in this Agreement that are required or in any agreement, certificate or other instrument delivered by the Stockholders pursuant to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties this Agreement; PROVIDED, HOWEVER, Cordant and its Affiliates, Representatives, successors and assigns shall not be entitled to indemnification under Section 10.2(a)(i) or Section 10.2(a)(ii) only if and to the extent the aggregate amount of all Losses indemnified against under (which 1) Section 10.2(a)(i) or (2) Section 10.2(a)(ii) due to a breach of Section 6.5, exceed $500,000, and in no event shall such indemnification exceed in the aggregate $5,000,000; PROVIDED, FURTHER, that the limitation set forth in this Section 10.2(a) shall not apply to a breach by the Stockholders of the representations and warranties contained in Section 4.3. Notwithstanding the foregoing, any indemnification relating to (A) Taxes or Section 3.22 shall be governed solely by Section 10.6 and (B) Environmental Laws, Environmental Conditions, Hazardous Materials or Section 3.27 shall be governed solely by Section 10.2(b), and accordingly no claims may be asserted by made in respect of such matters or the JAC Representative on behalf of JAC representations and the JAC Indemnified Parties) warranties set forth in such sections under this ARTICLE 9 Section 10.2(a). An indemnified party shall not have the right to indemnification under this Section 10.2(a) for a breach of the third sentence of Section 3.8(b) unless Cordant or the Companies first exhaust their remedies, including through litigation, to recover their Losses from the issuer of the applicable Title Policy. Any amounts for which indemnification is provided pursuant to Section 10.2(a)(i) as a result of a breach of the third sentence of Section 3.8(b) shall be net of any amounts recovered under such Title Policy.
(b) Subject to the other than with respect provisions of this Article X, the Stockholders hereby agree to JAC Indemnifiable Claims indemnify and hold Cordant and its Affiliates, Representatives, successors and assigns harmless from and against any Environmental Conditions only on the following terms and subject to the following conditions: (i) for aggregate Environmental Conditions up to $1,000,000, there shall be no indemnification obligation of the Stockholders under clauses this Article X; (ii) or for aggregate Environmental Conditions incurred prior to the fourth anniversary of the Closing Date in excess of $1,000,000 but less than $3,000,000, there shall be full indemnification by the Stockholders for such excess amounts pursuant to this Article X; (iii) above) unless for aggregate Environmental Conditions incurred prior to the aggregate of all fourth anniversary of the Indemnifying Party’s Closing Date in excess of $3,000,000 but less than $5,000,000, there shall be indemnification for such excess amounts by the Stockholders under this Article X limited to 50% of such Environmental Conditions in excess of $3,000,000; and (v) for aggregate Environmental Conditions in excess of $5,000,000, or any Environmental Conditions incurred after the fourth anniversary of the Closing Date, there shall be no indemnification obligation of the Stockholders under this Article X or otherwise. The obligations set forth in this Section 10.2(b) shall be limited to indemnify amounts paid to third parties or reimbursement to Cordant or its Affiliates for such amounts. An indemnified party shall not have a right to indemnification under this Section 10.2(b), unless Cordant or the JAC Indemnified Parties Companies, at Cordant's expense, first exhaust their remedies, including through litigation, to recover for any Environmental Conditions (including through enforcement of contractual rights) from third parties with whom the Companies or the Subsidiaries have or may have a contractual, legal or equitable right of indemnification, reimbursement or contribution, including any prior owner of the property. Any amounts for which indemnification is provided pursuant to this ARTICLE 9 exceeds $1,000,000 Section 10.2(b) shall be net of any amounts recovered from such third parties. An indemnifying party shall not be liable under this Section 10.2(b) (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject A) to the limitations set forth extent that the Environmental Condition resulted from the enactment, modification or amendment of an Environmental Law after the Closing Date, or (B) to the extent that liability arises from or is due to a change in Section 9.3 hereofthe use of the property from that currently being used by Continental/Midland.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cordant Technologies Inc)
Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9Article IX, from Stockholders shall jointly and after the Closingseverally (except with respect to Claims arising out of Section 9.2(a) which shall be several and not joint) indemnify, defend and hold harmless Purchaser, its Affiliates, and their respective successors and assigns (collectively, the Stockholders (the “Stockholders Indemnifying PartyPurchaser Indemnified Parties”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and shall pay and reimburse and pay each of them as actually incurred with respect tofor, any and all losses, liabilities, obligations, damages, deficienciesclaims, actions, suits, proceedingsLegal Proceedings, demandslosses, costs, expenses, obligations, Taxes, liabilities, damages, judgments, assessments, judgmentsfines and awards (including, penaltieswithout limitation, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees (other than Excluded Attorneys Fees (as defined below)) and costs of investigationcourt costs) (but in all cases excluding any liabilities that are contingent, unmature, unknown, unfixed, inchoate, or indirect), actually incurred, sustained, or suffered or paid by them (collectively, “Losses”) as a result and to the extent by Purchaser arising out of: of or resulting from (ia) any breach of or violation of, inaccuracy or misrepresentation in any representations or warranties made by a Stockholder, or any failure by a Stockholder to perform any covenants, agreements or other obligations of such Stockholder made in this Agreement or in any certificate or other document or instrument required to be delivered by such Stockholder to Purchaser pursuant to this Agreement; (b) any breach or violation of, inaccuracy or misrepresentation in, any representations or warranties made by the Company, or any failure by the Company to perform any covenants, agreements or other obligations of the Company made in this Agreement or in any Stockholdercertificate or other document or instrument required to be delivered at Closing by the Company to Purchaser pursuant to this Agreement; (c) any violation by the Company prior to Closing of Environmental Laws or laws relating to Hazardous Substances; and (iid) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior Taxes, to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth extent specified in Section 9.3 10.4(h) hereof.
Appears in 1 contract
Indemnification by Stockholders. (a) Subject to the other provisions of this ARTICLE 9, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JACSection 9.2, and each as an integral part of its Affiliates the Transaction, Stockholders hereby agree to hold harmless and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless indemnify Buyer from and against, and to compensate and reimburse and pay each of them as actually incurred with respect to, Buyer for any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, Loss which is suffered or paid incurred by them Buyer (collectively, “Losses”regardless of whether or not such Loss relates to any third party claim) as a result and to the extent arising out of: of or in connection with:
(i) any breach of inaccuracy in any representations representation or warranties warranty made by Seller or Stockholders in this Agreement or in the Company Transaction Documents or in any Stockholder; and certificate delivered pursuant hereto or thereto;
(ii) any failure by Seller or Stockholders to perform or comply with any covenant or agreement in this Agreement or in the Transaction Documents;
(iii) any Claim relating to any business or assets of Seller or its Affiliates not acquired by Buyer hereunder (including the Excluded Assets);
(iv) any obligations or liabilities of Seller or its Affiliates not assumed by Buyer hereunder (including the Excluded Liabilities) other than those Excluded Liabilities described in Sections 2.4 (a), (b), (c), (d), (g) and (h) of this Agreement;
(v) any Excluded Liabilities described in Sections 2.4 (a), (b), (c), (d), (g) and (h) of this Agreement;
(vi) any failure by Seller to deliver the approvals and consents for Contracts identified on Section 6.2 of the Disclosure Memorandum within 30 days after the Closing; or
(vii) any breach of the obligations of Xxx Xxxxx under Section 8.12 of this Agreement.
(b) Any claim for indemnification by Buyer pursuant to Section 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iii), 9.2(a)(iv), or 9.2(a)(v) of this Agreement shall be subject to the Company following limitations:
(i) the aggregate indemnification obligations of Stockholders shall be limited to the assets held in escrow pursuant to the terms of the Escrow Agreement;
(ii) Stockholders are not required to make any indemnification payment with respect to claims for Losses in an amount less than $200,000; provided, however, that once all claims for Losses equal or exceed $200,000 Stockholders shall be liable for the full amount of Losses; and
(iii) Stockholders are not required to make any Stockholder indemnification payment unless a claim is initiated prior to the Claims Date; provided, however, that the foregoing limitations in Sections 9.2(b)(i) through (iii) shall not apply in the case of any claim for indemnification based on a breach or inaccuracy of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC representations and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations warranties set forth in Section 9.3 hereof3.10(a)(i), (a)(ii) or (b)(ii) or Section 3.12(a) or (d) of this Agreement and shall not apply in the case of any intentional misstatement or fraud.
(c) Any claim for indemnification by Buyer pursuant to Section 9.2(a)(v) with respect to any Excluded Liability described in Section 2.4(c) of this Agreement shall be subject to the following limitations:
(i) the aggregate indemnification obligations of Stockholders shall be limited to $10 million; and
(ii) Stockholders are not required to make any indemnification payments unless a claim is initiated prior to the third anniversary of the Closing Date.
(d) With respect to any claim for indemnification by Buyer pursuant to Section 9.2(a)(vii), the aggregate indemnification obligations of Stockholders shall be limited to a portion of the assets held in Escrow not to exceed $200,000.
Appears in 1 contract
Indemnification by Stockholders. Subject to (a) The Stockholders holding Non-Plan Shares and the other provisions of this ARTICLE 9, Optionholders hereby agree that from and after the ClosingClosing they shall jointly and severally indemnify, the Stockholders defend and hold harmless Parent, Surviving Corporation and their Affiliates and their respective directors, officers, shareholders, partners, members, attorneys, accountants, agents, representatives and employees and their heirs, successors and permitted assigns, each in their capacity as such (the “Stockholders Indemnifying Party”Parent Indemnified Parties” and, collectively with Seller Indemnified Parties (as defined in Section 9.3(a), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) from, against and hold each in respect of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilitiescharges, obligationsLiabilities, damagesclaims, deficienciesdemands, actions, suits, proceedings, demandspayments, judgments, settlements, assessments, judgmentsdeficiencies, Taxes, interest, penalties, diminutions in value, lost earnings, and costs and expensesexpenses (including removal costs, including remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring, reasonable attorneys’ fees fees, and costs of investigation, suffered or paid by them reasonable out-of-pocket disbursements) (collectively, “Losses”) as a result and to imposed on, sustained, incurred or suffered by, or asserted against, any of Parent Indemnified Parties, whether in respect of third party claims, claims between the extent parties hereto, or otherwise, directly or indirectly relating to, arising out of: of or resulting from (i) subject to Section 9.2(b), any breach or inaccuracy of any representation or warranty made by the Principal Stockholders or Phoenix set forth in this Agreement or any document delivered pursuant to this Agreement; it being understood that for purposes of this Section 9.2(a) any qualifications as to materiality or Material Adverse Effect shall be disregarded for purposes of determining whether such representation or warranty was breached and the Losses in connection therewith; (ii) any breach of any representations covenant or warranties by agreement of the Company Principal Stockholders or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements Phoenix contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than before or, with respect to JAC Indemnifiable Claims under clauses (ii) or the Principal Stockholders only, after the Closing Date; (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations matters set forth in Section 9.3 hereof9.2(a)(iii) of the Disclosure Schedule; (iv) the exercise by Dissenting Stockholders of appraisal rights with respect to the Merger pursuant to Section 262 of the DGCL, including all costs and expenses incurred by a Parent Indemnified Party directly or indirectly relating to, arising out of or resulting from the exercise by Dissenting Stockholders of their rights to require an appraisal of their Dissenting Shares, and any amounts in excess of the Share Consideration paid by a Parent Indemnified Party to a Dissenting Stockholder; (v) those certain Executive Employment Agreements entered into by the Company with each of Xxxxx XxXxxxx, Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx in excess of the amounts deducted under the calculation of the Purchase Price; (vi) the matters set forth in Section 9.2(a)(vi) of the Disclosure Schedule and (vii) the matter set forth in Section 9.2(a)(vii) of the Disclosure Schedule.
(b) Except with respect to any Losses incurred in connection with any breach or inaccuracy of any representation or warranty contained in Sections 3.1 through 3.3, Section 4.1, Section 4.2 (but only with respect to title or ownership), Section 4.3, Section 4.7(b), Section 4.7(c), Section 4.8(c), Section 4.10 (but only with respect to title or ownership), Section 4.11 (but only with respect to title or ownership), Section 4.21, Section 4.23, Section 4.24, Section 4.25 and Section 4.30, Stockholders holding Non-Plan Shares and the Optionholders shall not be liable to Parent Indemnified Parties for any Losses with respect to the matters contained in Section 9.2(a)(i) unless (i) the Losses therefrom exceed an aggregate amount equal to $750,000 (the “Threshold“); (ii) if such Losses in the aggregate exceed the Threshold, then the Stockholders holding Non-Plan Shares and the Optionholders shall be liable for the full amount of such Losses but only to the extent such aggregate Losses are in excess of the amount of the Threshold, and provided that the Stockholders holding Non-Plan Shares and the Optionholders shall not be liable for such Losses in excess of $22,200,000, and (iii) the Stockholders holding Non-Plan Shares and the Optionholders shall only be liable with respect to claims for indemnification made on or before the last day of the applicable Survival Period.
(c) In no event shall any Stockholder holding Non-Plan Shares or Optionholder, other than a Principal Stockholder, be liable to Parent Indemnified Parties under this Section 9.2 or under Section 6.9 for any Loss that exceeds such Stockholder’s portion of the Aggregate Stockholder Escrow Amount or such Optionholder’s portion of the Aggregate Optionholder Escrow Amount, and such Parent Indemnified Parties’ sole remedy against Stockholders holding Non-Plan Shares and Optionholders (other than the Principal Stockholders) for such liability shall be from funds held by the Escrow Agent.
Appears in 1 contract
Samples: Merger Agreement (Visant Corp)
Indemnification by Stockholders. Subject to the other provisions of limits set forth in this ARTICLE 9, from and after the ClosingArticle 8, the Stockholders and holders of Options shall severally in accordance with their Pro Rata Portion (the “Stockholders Indemnifying Party”as defined below), severally and not jointly, shall indemnify JACindemnify, defend and each of hold Purchaser and its Affiliates and each of its their respective Representativesstockholders, and partners, affiliates, officers, directors, employees, agents, successors and assignsassigns (Purchaser and such persons are collectively hereinafter referred to as "Purchaser Indemnified Persons"), as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, against any and all losses, liabilities, obligations, damages, deficienciesclaims, actionsdiminution in value, suitsexpenses or deficiencies (including but not limited to interest, proceedingspenalties, demands, assessmentsfines, judgments, penalties, diminutions in value, lost earningssettlements, costs of preparation and investigation, costs incurred in enforcing this indemnity and reasonable attorneys' fees and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them ) (collectively, “"Losses”") as a result and that Purchaser Indemnified Persons may suffer, sustain, incur or become subject to the extent arising out ofof or due to: (i) any inaccuracy of any representation of NDC or the Stockholder Representative in this Agreement or in the NDC Disclosure Schedule and in any certificate delivered pursuant to the Escrow Agreement; (ii) the breach of any representations warranty of NDC or warranties by the Company Stockholder Representative in this Agreement or the NDC Disclosure Schedule and in any Stockholdercertificate delivered pursuant to the Escrow Agreement; (iii) the non-fulfillment of any covenant, agreement or other obligation of NDC under this Agreement; and (iiiv) any breach the indemnification provisions contained in the NDC/Asante Letter. A Stockholder's or Option holder's "Pro Rata Portion" shall be equal to the quotient obtained by dividing (x) the Company or any sum of the amount payable to such Stockholder pursuant to Section 2.5.2(a) of this Agreement plus the amount payable to such Option holder pursuant to Section 2.5.2(b) of this Agreement (which amount shall include the amount of any of its covenants or agreements contained in this Agreement that are required Option Withholding attributable to be performed prior to such Option) by (y) the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereofAggregate Payment Amount.
Appears in 1 contract
Samples: Merger Agreement (Wilson Greatbatch Technologies Inc)
Indemnification by Stockholders. Subject Except as provided in Section ------------------------------- ------- 8.6, Stockholders agree to jointly and severally indemnify and hold harmless --- Empyrean Holdings and the Company and each officer, director, and Affiliate of Empyrean Holdings and the Company, including without limitation any successor of the Company that is an Affiliate of Empyrean Holdings and any of the Company's or Emyrean Holdings' lenders as provided in Section 10.5 hereof (collectively, ------------ the "Indemnified Parties") from and against any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs and expenses (including court costs and reasonable attorneys' fees and expenses incurred in investigating and preparing for any litigation or proceeding) (collectively, the "Indemnifiable Costs"), which any of the Indemnified Parties may sustain, or to which any of the Indemnified Parties may be subjected, arising out of (A) any misrepresentation, breach or default by Stockholders (as such, but severally and not jointly in any other role, e.g., as an employee under any employment agreement after the date hereof), Invisions Group or the Company of or under any of the representations, covenants, agreements or other provisions of this ARTICLE 9Agreement or any agreement or document executed in connection herewith; provided, from however, that Indemnifiable Costs for covenants with respect to the Company shall be with respect to pre-Closing periods only; (B) any downward Net Working Capital Adjustment not paid to the Company pursuant to a reduction of the Escrow Sum; (C) cost of any brokerage or other transaction fees liability, if any, borne by the Company and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally Invisions Group and not jointlyby Stockholders except as provided in Section 10.4 hereof; (D) any customer claims involving ------------ pre-Closing services or products of the Company for breach of warranty, shall indemnify JACproduct liability or customer service remediation, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, including claims for consequential damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: not reserved for in the Company's Financial Statements and (iE) any breach failure of the Company to obtain any landlord consents to the Acquisition contemplated hereby required under the terms of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all leases of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereofCompany's real property.
Appears in 1 contract
Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9Each Stockholder shall ------------------------------- severally, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and but not jointly, shall indemnify JACand hold harmless Acquiror, and each of its Affiliates and each of its respective Representativessubsidiaries (including, and after the Effective Date, the Company), affiliates, stockholders, officers, directors, agents, employees, successors and assignsassigns (collectively, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless "Acquiror Indemnitees"), from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilitiesliability, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgmentsfines, penalties, diminutions in valuelosses, lost earningssettlements, damages, claims, awards and judgments, costs and expenses, expenses (including reasonable attorneys’ fees and costs of investigation' fees) (collectively, "Losses"), suffered or paid incurred by any of them for, or arising out of or based upon, or relating to any of the following:
(collectivelya) Any and all Specified Litigation Losses incurred by the Acquiror Indemnitees after the Effective Date, “Losses”) as a result and but only to the extent arising out of: that the aggregate amount of the Specified Litigation Losses suffered or incurred by the Acquiror Indemnitees after the Effective Date exceeds the Specified Litigation Deductible;
(ib) any Any and all Lien Losses suffered or incurred by the Acquiror Indemnitees; and
(c) Any breach of any representations representation, warranty, agreement or warranties by covenant of the Company or any Stockholder; and (ii) any breach by the Company or any such Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior or the schedules hereto and for purposes of this Section 9.02, any qualification of such representations and warranties by reference to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall materiality of matters stated therein or as to matters having or not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 having a "Material Adverse Effect," (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), representations and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations warranties set forth in Section 9.3 hereofSections 3.16(i) and 3.17) shall be disregarded, in determining any inaccuracy, untruth, incompleteness or breach thereof.
Appears in 1 contract
Samples: Merger Agreement (Acsys Inc)
Indemnification by Stockholders. Subject Except to the other provisions of this ARTICLE 9extent waived by Xxxxx in accordance with Section 6.6, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), agree severally and not jointlyjointly to defend, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them Xxxxx harmless from and against, against and reimburse and pay each of them as actually incurred with respect to, to any and all lossesloss, liabilitiesdamage, obligationsliability, damagesdeficiency, deficienciescost, actionsobligation, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expensesor expense, including reasonable attorneys’ ' fees and court costs of investigation, suffered resulting from or paid by them (collectively, “Losses”) as a result and with respect to the extent arising out of: (i) any a breach of any representations representation or warranties by the Company warranty of Stockholders contained in this Agreement or any Stockholdercertificate or document delivered to Xxxxx by Stockholders pursuant to Section 9 of this Agreement; and (ii) the failure of Stockholders to perform or comply with any breach covenant, agreement or obligation required by this Agreement to be performed or complied with by Stockholders (collectively, "Losses"). Each claim for Losses (as distinguished from claims to defend) shall, if not paid when due, bear interest at a rate equal to ten percent (10%) from the Company or date the Stockholders are required to pay such claim until the date such claim is satisfied in full; provided, that any Stockholder claim for indemnity made with respect to this Section 10.2 must be made by Xxxxx by notice in accordance with Section 12.6 hereof within the applicable periods of time as set forth in Section 10.1. Expiration of the applicable limitation period subsequent to the filing of any of its covenants or agreements claim hereunder and to which such period is applicable shall not terminate any such claim. Notwithstanding anything else to the contrary, contained in this Agreement that are required to Section 10.2 the obligations of the Stockholders shall be performed prior to the Closing Date limited as follows:
(“JAC Indemnifiable Claims”). The JAC Indemnified Parties a) Stockholders shall not be entitled required to indemnification indemnify Xxxxx (A) for any individual Loss which may be asserted by the JAC Representative on behalf of JAC is less than $5,000 and the JAC Indemnified Parties(B) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless until the aggregate amount of all of Losses hereunder (together with Losses incurred under the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 ChromaTech Agreement) exceeds $1,000,000 (the “Basket”), after which point Stockholders shall be severally obligated to indemnify Xxxxx from and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligationsagainst further Losses, subject to (A) immediately above, in excess of such amount) (all Losses meeting both (A) and (B) being "Eligible Losses"); and
(b) The maximum aggregate liability of the limitations Stockholders under this Section 10.2 shall be limited to $3,083,000 (apportioned among the Stockholders based on the relevant percentages set forth in Schedule 10.2) less any Losses paid under the ChromaTech Agreement (the "First Phase Limit"); provided, however, that if the aggregate amount of Eligible Claims that are timely made by Xxxxx exceeds $3,083,000 (such excess amount, "Excess Eligible Losses") and if the Sales Contingency is met, that portion of Excess Eligible Losses up to an additional maximum amount of $7,718,000 (apportioned among the Stockholders based on the relevant percentages set forth in Schedule 10.2) less any Losses under the ChromaTech Agreement not applied to the First Phase Limit shall be deferred (the "Deferred Losses"), without a claim for interest during the deferral period, until the later to occur of (i) the payment of the Contingent Sales Payment (at which time the Deferred Losses shall be setoff against the Contingent Sales Payment) and (ii) the final determination of such Excess Eligible Loss which amount shall be paid in immediately available funds within five (5) Business days thereafter; provided, however, that the limitations contained in Sections 10.2(a) and 10.2 (b) shall not apply to (1) any breach of the representations made in Section 9.3 hereof5.1, or (2) any Losses incured in respect of Section 10.2(ii) above.
Appears in 1 contract
Indemnification by Stockholders. Subject to the other provisions of this ARTICLE 9, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) any breach of any representations or warranties by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in this Article VII, each Stockholder will jointly and severally indemnify, defend and hold harmless Buyer, its managers, members, officers, directors, agents, attorneys and employees, (hereinafter “Buyer Indemnified Parties”) from and against any and all losses, costs, damages, penalties, fines, liabilities and expenses (including reasonable legal fees and expenses, court costs and costs of investigation) arising from claims, demands, actions, causes of action, injunctions, judgments, orders or rulings (collectively, “Damages”) incurred or sustained by Buyer Indemnified Parties as a result of:
(i) any inaccuracy or breach of, or any claim by a third party alleging facts that, if true, would mean that either a Blass Party has breached, any representation or warranty contained herein or under any other agreement executed and delivered by the parties in furtherance of the transactions described herein;
(ii) a breach by a Blass Party of any covenant or other agreement contained herein and any certificate or other document delivered pursuant hereto;
(iii) other than amounts expressly set forth in the Final Working Capital, any and all loss, liability or damage suffered or incurred by any of Buyer Indemnified Parties in respect of or in connection with any and all debts, liabilities and obligations of, any Company, Couture or the Couture Sale, direct or indirect, fixed, contingent, legal, statutory, contractual or otherwise, which shall exist at or as of the Closing Date (including, but not limited to, any Multiemployer Plan or any Company Benefit Plan) or which shall arise after the Closing Date but which shall be based upon or arise from any act, transaction, circumstance, state of facts or other condition which occurred or existed, whether or not then known, due or payable, as of the Closing Date;
(iv) except to the extent Taxes are accrued or reserved for on the Closing Date Statement and thus reduce Working Capital as finally determined pursuant to Section 9.3 2.3 hereof, any and all Taxes of any of the Companies (A) for all taxable periods ending on or prior to the Closing Date; (B) for any Interim Tax Period which Taxes are allocable to the portion of the Interim Tax Period ending on the Closing Date (as determined pursuant to Section 10.1(c)); and (C) for all Taxes of any member (other than the Companies) of an Affiliated Group of which any of the Companies is or was a member on or prior to the Closing Date by reason of liability pursuant to Treas. Reg. §1.1502-6(a) or any analogous or similar state, local or foreign law or regulation but excluding any Taxes of any member of an Affiliated Group of which any of the Companies becomes a member (x) on the Closing Date at the time of or after the Closing or (y) any time after the Closing Date,
(v) any collection, use, importation or exportation of personally identifiable information and other information relating to individuals that violates any Law, and
(vi) all amounts owed to Atlantic Capital, LLC and CF Partners, LP pursuant to that letter agreement dated March 26, 2006 (as amended) from Atlantic Capital LLC and CF Partners, LP to The Resource Club, Ltd., The Design and Source Holding Co., Ltd., and Holding. The Stockholders, Parent and Buyer acknowledge that such Damages, if any, would relate to unresolved contingencies existing at the Closing Date which, if resolved at the Closing Date, would have led to a reduction in the Purchase Price. The aggregate indemnification obligations of the Stockholders for Damages under Section 7.1(b) of this Agreement shall not exceed the sum of 20% of the amount of the Purchase Price received by the Stockholders under this Agreement as of the date on which payment of such Damages is made by the applicable Indemnifying Party, provided, however, that there shall be no limit on the Damages resulting from any representation or warranty set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.6, 3.14, and 3.30.
Appears in 1 contract
Indemnification by Stockholders. Subject 8.2.1 The Receiving Stockholders jointly and severally hereby indemnify and agree to save, hold harmless and defend the other provisions of this ARTICLE 9Purchaser and their affiliates and subsidiaries, from and after the Closingtheir respective partners, the Stockholders (the “Stockholders Indemnifying Party”)officers, severally directors, shareholders, agents and not jointly, shall indemnify JACrepresentatives, and each of its Affiliates and each of its respective Representativesthem, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, against any and all costs, losses, liabilities, obligationsdamages, damageslawsuits, deficiencies, actionsclaims and expenses (whether or not arising out of third-party claims), suitsincluding, proceedingswithout limitation, demands, assessments, judgmentsinterest, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs all amounts paid in connection with the defense or settlement of investigationany of the foregoing (the “Damages”), suffered incurred in connection with or paid arising out of or resulting from any one or more of the following: (a) any inaccuracy in any representation or warranty made by them the Stockholders in Sections 3.1 through 3.21 herein or in any exhibit, schedule, certificate, tax return or other document provided pursuant to or in connection with this Agreement (collectivelyin each case, determined without regard to any qualifications therein referencing “materiality”, “Losses”material adverse effect” or other words of similar import or effect); (b) as a result and to the extent arising out of: (i) any breach of any representations covenant, agreement or warranties obligation made by the Company or any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements the Sellers contained in this Agreement, including the schedules and exhibits hereto, or any other agreement, instrument or document executed by any of the Sellers, pursuant hereto or in connection herewith; (c) any fraud or willful misconduct by any of the Sellers in connection with this Agreement that are required to be performed prior or the Contemplated Transactions. The Preferred Stockholder’s $750,000 contribution to the Closing Date Escrow Funds shall be available to satisfy any and all claims for Damages under this Section 8.2.1.
8.2.2 Each of the Stockholders severally hereby indemnifies and agrees to save, hold harmless and defend the Purchaser and their affiliates and subsidiaries, and their respective partners, officers, directors, shareholders, agents and representatives, and each of them, from and against any and all Damages incurred in connection with or arising out of or resulting from any one or more of the following: (“JAC Indemnifiable Claims”)a) any inaccuracy in any representation or warranty made by such Stockholder in Sections 2.1 through 2.6 herein; (b) the breach of any covenant, agreement or obligation made by such Stockholder contained in this Agreement, including the schedules and exhibits hereto, but excluding the representations and warranties made by such Stockholders in Sections 3.1 through 3.21, or any other agreement, instrument or document executed by the Stockholder, pursuant hereto or in connection herewith; (c) any fraud or willful misconduct by such Stockholder in connection with this Agreement or the Contemplated Transactions. The JAC Indemnified Parties Preferred Stockholder’s $750,000 contribution to the Escrow Funds shall not be entitled available to indemnification satisfy any and all claims for Damages under this Section 8.2.2.
8.2.3 The Preferred Stockholder hereby indemnifies and agrees to save, hold harmless and defend the Purchaser and their affiliates and subsidiaries, and their respective partners, officers, directors, shareholders, agents and representatives, and each of them, from and against any and all Damages incurred in connection with or arising out of or resulting from any one or more of the following: (which may be asserted a) any inaccuracy in any representation or warranty made by the JAC Representative on behalf Preferred Stockholder in Sections 2.1 through 2.7 herein; (b) the breach of JAC any covenant, agreement or obligation made by the Preferred Stockholder contained in this Agreement, including the schedules and exhibits hereto, or any other agreement, instrument or document executed by the JAC Indemnified PartiesPreferred Stockholder, pursuant hereto or in connection herewith; (c) any fraud or willful misconduct by the Preferred Stockholder in connection with this Agreement or the Contemplated Transactions. The Preferred Stockholder’s $750,000 contribution to the Escrow Funds shall be available to satisfy any and all claims for Damages under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereof8.2.3.
Appears in 1 contract
Indemnification by Stockholders. Subject Each Stockholder severally agrees to the other provisions of this ARTICLE 9indemnify and hold harmless Zoll and Merger Sub and their respective directors, officers, agents, affiliates and employees (each a "Zoll Indemnified Party") from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, against any and all losses, liabilities, obligations, damages, deficienciesclaims, actions, suits, proceedingsliabilities, demandslosses, assessmentsdamages, judgmentsand expenses of every nature and character whether accrued, penaltiesabsolute, diminutions in valuecontingent or otherwise (including, lost earningsbut not by way of limitation, costs and expenses, including all reasonable attorneys’ ' fees incurred by Zoll or Merger Sub and costs of investigation, suffered or all amounts paid by them it in settlement of any claim, action, suit or liability) (collectively, “Losses”) as a "Claim"), which arise or result and to the extent arising out directly or indirectly by reason of: :
(i) Any error, misstatement or omission in any breach of any representations representation or warranties by the Company or any Stockholder; and (ii) any breach warranty made by the Company or any Stockholder in this Agreement, any Schedule or exhibit hereto, or in any document or instrument provided for herein or furnished or to be furnished to Zoll or Merger Sub in connection with this Agreement;
(ii) Any breach of or default in performance of any of its covenants the covenants, agreements or agreements contained in this Agreement that are required to be performed other undertakings of the Company or any Stockholder;
(iii) Inadequate reserves on the Base Balance Sheet for any Product or service of the Company produced or furnished by the Company on or prior to the Closing Date Closing; and
(“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted iv) Any action or inaction by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than Company or any event, circumstance or condition occurring or existing with respect to JAC Indemnifiable Claims under clauses the Company on or prior to the Closing; provided, however, that (iiA) or (iii) above) unless the aggregate of all indemnification obligation of the Indemnifying Party’s obligations Stockholders hereunder shall be limited to indemnify the JAC lessor of (A) $12,000,000 less any amounts paid to the Zoll Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 the indemnification provisions of the LLC Purchase Agreement executed by the parties hereto and Pinpoint Properties Management, LLC of even date herewith (the “Basket”"LLC Purchase Agreement") (the "Indemnity Cap") and (B), and once this threshold has been exceededif the Stockholders unanimously determine in their discretion, the Indemnifying Party Indemnity Cap shall indemnify be fully satisfied by the JAC Indemnified Parties for all remittance to Zoll of 425,000 Zoll Common Shares in the aggregate, provided, however, that such obligations, subject limitations shall not apply to the limitations indemnification claims relating to or arising from a breach of any representation or warranty set forth in Section 9.3 hereofSections 5.3, 5.4, 5.6, 6.1 and 6.2; (B) each Stockholder shall only be liable for his pro rata share of the total indemnification obligation (such pro rata share constituting the equivalent of each Stockholder's ownership percentage in the Company just prior to the Closing); (C) the obligation to pay any amounts due hereunder shall not commence until Buyer has registered one-half of the Zoll Common Shares pursuant to the terms of this Agreement and the Registration Rights Agreement, though the obligation to pay such amounts shall accrue irrespective of such registration or lack thereof; and (D) the indemnification obligation hereunder shall terminate twelve (12) months after the date such obligation commences, except that Claims relating to or involving tax matters shall expire on the date three months after the applicable statute of limitations relating thereto. In the event the Stockholders determine to satisfy their indemnification obligations with Zoll Common Shares, such stock shall be valued at the closing price of the Zoll Common Shares on the date Zoll notifies the Stockholders of the existence of the relevant Claim.
Appears in 1 contract
Indemnification by Stockholders. Subject The Stockholders shall be obligated to indemnify and hold harmless the other provisions of this ARTICLE 9Purchaser, its Affiliates (including, after the Closing Date, the Company) and their respective officers, directors, employees, agents, successors, representatives, successors and assigns (each a "Purchaser Indemnified Party" and collectively, the "Purchaser Indemnified Parties") from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, against any and all losses, liabilities, obligationslosses, damages, claims, costs, expenses, fines, fees, deficiencies, actionsinterest, suits, proceedings, demands, assessmentsawards, judgments, penaltiesamounts paid in settlement and penalties (including, diminutions in valuewithout limitation, lost earnings, costs and expenses, including reasonable attorneys’ ', consultants' and experts' fees and expenses and other reasonable costs of investigationdefending, investigating or settling claims) suffered or paid incurred by them (collectivelyincluding, “Losses”) as a result and without limitation, in connection with any action brought or otherwise initiated by any of them), including any punitive damages (solely to the extent awarded in respect of any Third Party Claims), consequential damages, special damages, incidental damages, indirect damages, lost profits or similar items (it being understood that any such damages shall not be calculated with the application of a multiplier related to (x) lost earnings or (y) a similar financial metric and shall not include charges for time spent by the Purchaser or its employees in managing or otherwise dealing with such claim), net of any insurance proceeds actually received (net of recovery costs) (hereinafter, "Loss(es)"), by the Purchaser Indemnified Party, arising out of: , relating to or resulting from:
(ia) any inaccuracy in or breach of any representations representation or warranties warranty contained in ARTICLE 3 of this Agreement (or any claim by any third party alleging or constituting an inaccuracy or breach of any such representation or warranty) (in each case as modified by the Company or any Stockholder; Disclosure Schedules), which representations and (ii) any breach by warranties shall be deemed to have been made as of the Company or any Stockholder date hereof and as of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses representations and warranties which are expressly made as of a particular date, in which case such representations and warranties shall be deemed to have been made as of such date);
(iib) any breach of any covenant or (iii) above) unless agreement made by the aggregate of all Company in this Agreement prior to the Closing Date, including without limitation, the covenants of the Indemnifying Party’s obligations Company set forth in ARTICLE 2 and ARTICLE 5 or any post-closing covenant or agreement made by the Stockholders which is contained in any of ARTICLE 2 or any of Sections 5.4 or 5.5 hereof (and related Losses and/or remedies (if any)); or
(c) any claim by any Person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to indemnify have been made by any such Person with the JAC Company or any of the Stockholders (or any Person acting on their behalf) in connection with any of the transactions contemplated hereby. Of any amounts which are payable by the Stockholders to any Purchaser Indemnified Parties Party pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligationsSection 7.2, subject to the limitations set forth in this Agreement including Section 9.3 hereof7.4, such amounts shall be the obligation of the Stockholders, jointly and severally as between themselves.
Appears in 1 contract
Indemnification by Stockholders. (a) Subject to Section 9.3(a), from and after the other provisions Closing the Stockholders shall, jointly and severally, indemnify and save Parent, its Subsidiaries (including, without limitation, the Surviving Corporation), and their respective Affiliates, directors, officers, employees, agents, counsel and representatives and all of their successors and assigns (collectively, the "Parent Claimants" and, individually, a "Parent Claimant") harmless from, and defend each of them from and against, any and all demands, claims, actions, liabilities, losses, costs, damages or expenses whatsoever, including reasonable attorneys' fees (collectively, "Losses"), imposed upon or incurred by the Parent Claimants constituting, resulting from or arising out of (i) any misrepresentation or breach of any representation or warranty of Meer or any of the Stockholders contained in this ARTICLE 9Agreement or (ii) any breach of any covenant or obligation of Meer or any of the Stockholders contained in this Agreement. Without limiting the generality of the foregoing and subject to Section 9.3(a), the Stockholders shall pay any Parent Claimant who is successful asserting any claim for indemnification hereunder an amount sufficient to put such Parent Claimant in the same position it would have been in had such representation or warranty been accurate or had such covenant or obligation not been breached, as the case may be, net of any tax benefit received by such Parent Claimant due to such Losses (after taking into account any amounts to be received hereunder).
(b) Subject to Section 9.3(b), from and after the Closing, Parent shall indemnify and save the Stockholders and their respective Affiliates, beneficiaries, heirs, executors, successors and assigns (collectively, the “Stockholders Indemnifying Party”"Stockholder Claimants" and, individually, a "Stockholder Claimant") harmless from and defend each of them from and against any and all Losses imposed upon or incurred by the Stockholder Claimants, constituting, resulting from or arising out of (i) any inaccuracy or breach of any representation or warranty of Parent or Sub contained in Sections 4.1, 4.2, 4.3, 4.4, the last sentence of Section 4.5, 4.6, 4.7 or 4.8 of this Agreement or (ii) any material breach of any covenant or obligation of Parent or Sub contained in this Agreement or the Registration Rights Agreement. Without limiting the generality of the foregoing and subject to Section 9.3(b), severally and Parent shall pay any Stockholder Claimant who is successful asserting any claim for indemnification hereunder an amount sufficient to put the Stockholder Claimant in the same position it would have been in had such representation or warranty been accurate or had such covenant or obligation not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assignsbeen breached, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and againstbe, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and to the extent arising out of: (i) any breach net of any representations or warranties tax benefit received by the Company or Stockholder Claimant (after taking into account any Stockholder; and (ii) any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required amounts to be performed prior to the Closing Date (“JAC Indemnifiable Claims”received hereunder). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereof.
Appears in 1 contract
Samples: Merger Agreement (Schein Henry Inc)
Indemnification by Stockholders. Subject Except to the other provisions of this ARTICLE 9extent waived by Xxxxx in accordance with Section 6.7, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), agree severally and not jointlyjointly to defend, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them Xxxxx harmless from and against, against and reimburse and pay each of them as actually incurred with respect to, to any and all lossesloss, liabilitiesdamage, obligationsliability, damagesdeficiency, deficienciescost, actionsobligation, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expensesor expense, including reasonable attorneys’ ' fees and court costs of investigation, suffered resulting from or paid by them (collectively, “Losses”) as a result and with respect to the extent arising out of: (i) any a breach of any representations representation or warranties by the Company or any Stockholderwarranty of Stockholders contained in this Agreement; and (ii) the failure of Stockholders to perform or comply with any breach covenant, agreement or obligation required by this Agreement to be performed or complied with by Stockholders (collectively, "Losses"). Each claim for Losses (as distinguished from claims to defend) shall, if not paid when due, bear interest at a rate equal to ten percent (10%) from the Company or date Stockholders are required to pay such claim until the date such claim is satisfied in full; provided, that any Stockholder claim for indemnity made with respect to this Section 8.2 must be made by Xxxxx by notice in accordance with Section 9.6 hereof within the applicable periods of time as set forth in Section 8.1. Expiration of the applicable limitation period subsequent to the filing of any of its covenants or agreements claim hereunder and to which such period is applicable shall not terminate any such claim. Notwithstanding anything else to the contrary, contained in this Agreement that are required to Section 8.2 the obligations of Stockholders shall be performed prior to the Closing Date limited as follows:
(“JAC Indemnifiable Claims”). The JAC Indemnified Parties a) Stockholders shall not be entitled required to indemnification indemnify Xxxxx (A) for any individual Loss which may be asserted by the JAC Representative on behalf of JAC is less than $5,000 and the JAC Indemnified Parties(B) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless until the aggregate amount of all of Losses hereunder (together with Losses incurred under the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 ChromaTech Agreement) exceeds $1,000,000 (the “Basket”), after which point Stockholders shall be severally obligated to indemnify Xxxxx from and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligationsagainst further Losses, subject to (A) immediately above, in excess of such amount) (all Losses meeting both (A) and (B) being "Eligible Losses"); and
(b) The maximum aggregate liability of Stockholders under this Section 8.2 shall be limited to $3,425,000 (apportioned among Stockholders based on the limitations relevant percentages set forth in Schedule 8.2) less any Losses paid under the ChromaTech Agreement (the "First Phase Limit"); provided, however, that if the aggregate amount of Eligible Claims that are timely made by Xxxxx exceeds $3,425,000 (such excess amount, "Excess Eligible Losses") and if the Sales Contingency is met, that portion of Excess Eligible Losses up to an additional maximum amount of $8,575,000 (apportioned among Stockholders based on the relevant percentages set forth in Schedule 8.2) less any Losses under the ChromaTech Agreement not applied to the First Phase Limit shall be deferred (the "Deferred Losses"), without a claim for interest during the deferral period, until the later to occur of (i) the payment of the Contingent Sales Payment (at which time the Deferred Losses shall be setoff against the Contingent Sales Payment) and (ii) the final determination of such Excess Eligible Loss which amount shall be paid in immediately available funds within five (5) Business days thereafter; provided, however, that the limitations contained in Sections 8.2(a) and 8.2(b) shall not apply to (1) any breach of the representations made in Section 9.3 hereof5.1, or (2) any Losses incurred in respect of Section 8.2(ii) above.
Appears in 1 contract
Indemnification by Stockholders. (a) Subject to the other provisions of this ARTICLE limitations set forth in Section 9, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”)Stockholders, severally jointly and not jointlyseverally, shall hold harmless and indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless Parent Indemnitees from and against, and reimburse and pay each against any Damages (regardless of them as actually incurred with respect to, whether such Damages relate to any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”third party claim) as a result and to the extent arising out of: (i) any misrepresentation or breach of or default in connection with any representations of the representations, warranties, covenants and agreements given or warranties made by SRC or the Company Stockholders in this Agreement, the Disclosure Schedules or any Stockholderexhibit or schedule to this Agreement; and (ii) any breach noncompliance of SRC's 401(k) plan with ERISA or applicable law, including any liability arising from revocation of a favorable determination by the Company Internal Revenue Service of qualification under ss. 401(a) of the Code and cost of correction, including without limitation, legal fees, consulting fees, accounting fees, interest, penalties and additional contributions (except to the extent of any amounts accrued on the Unaudited Interim Balance Sheet as Other Accrued Liabilities); (iii) any alleged obligation of SRC or its Stockholders for investment banking or other fees arising from the sale of the Shares other than the investment banking fees payable to Granite Hill Advisors llc as disclosed on Schedule 4.27; (iv) any Stockholder Damages to SRC resulting from the failure to have the Deferred Compensation Trust administered in accordance with the trust documents; (v) any Legal Proceeding relating to any claim under clause "(i)", "(ii)", "(iii)" or "(iv)" above (including any Legal Proceeding commenced by any Parent Indemnitee for the purpose of enforcing any of its rights under this Section 9). Recovery under this Section 9 shall be the exclusive remedy under this Agreement for any claim for Damages arising out of any breach or default in connection with any of the representations, warranties, covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereofthis Agreement, the Disclosure Schedule or any exhibit or schedule to this Agreement; unless such breach or default is the result of willful misconduct or fraud on the part of the Stockholders.
(b) The Stockholders acknowledge and agree that if SRC suffers, incurs or otherwise becomes subject to any Damages as a result of or in connection with any inaccuracy in or breach of any representation, warranty, covenant or obligation, then (without limiting any of the rights of SRC as an Parent Indemnitee) Buyer shall also be deemed, by virtue of its ownership of the stock of SRC, to have incurred Damages as a result of and in connection with such inaccuracy or breach.
Appears in 1 contract
Indemnification by Stockholders. Subject The Stockholders shall be obligated to indemnify and hold harmless the other provisions of this ARTICLE 9Purchaser, its Affiliates (including, after the Closing Date, the Company) and their respective officers, directors, employees, agents, successors, representatives, successors and assigns (each a "Purchaser Indemnified Party" and collectively, the "Purchaser Indemnified Parties") from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, against any and all losses, liabilities, obligationslosses, damages, claims, costs, expenses, fines, fees, deficiencies, actionsinterest, suits, proceedings, demands, assessmentsawards, judgments, penaltiesamounts paid in settlement and penalties (including, diminutions in valuewithout limitation, lost earnings, costs and expenses, including reasonable attorneys’ ', consultants' and experts' fees and expenses and other reasonable costs of investigationdefending, investigating or settling claims) suffered or paid incurred by them (collectivelyincluding, “Losses”) as a result and without limitation, in connection with any action brought or otherwise initiated by any of them), including any punitive damages (solely to the extent awarded in respect of any Third Party Claims), consequential damages, special damages, incidental damages, indirect damages, lost profits or similar items (it being understood that any such damages shall not be calculated with the application of a multiplier related to (x) lost earnings or (y) a similar financial metric and shall not include charges for time spent by the Purchaser or its employees in managing or otherwise dealing with such claim), net of any insurance proceeds actually received (net of recovery costs) (hereinafter, "Loss(es)"), by the Purchaser Indemnified Party, arising out of: , relating to or resulting from:
(ia) any inaccuracy in or breach of any representations representation or warranties warranty contained in ARTICLE 3 of this Agreement (or any claim by any third party alleging or constituting an inaccuracy or breach of any such representation or warranty) (in each case as modified by the Company or any Stockholder; Disclosure Schedules), which representations and (ii) any breach by warranties shall be deemed to have been made as of the Company or any Stockholder date hereof and as of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses representations and warranties which are expressly made as of a particular date, in which case such representations and warranties shall be deemed to have been made as of such date);
(iib) any breach of any covenant or (iii) above) unless agreement made by the aggregate of all Company in this Agreement prior to the Closing Date, including without limitation, the covenants of the Indemnifying Party’s obligations Company set forth in ARTICLE 2 and ARTICLE 5 or any postclosing covenant or agreement made by the Stockholders which is contained in any of ARTICLE 2 or any of Sections 5.4 or 5.5 hereof (and related Losses and/or remedies (if any)); or
(c) any claim by any Person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding alleged to indemnify have been made by any such Person with the JAC Company or any of the Stockholders (or any Person acting on their behalf) in connection with any of the transactions contemplated hereby. Of any amounts which are payable by the Stockholders to any Purchaser Indemnified Parties Party pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligationsSection 7.2, subject to the limitations set forth in this Agreement including Section 9.3 hereof7.4, such amounts shall be the obligation of the Stockholders, jointly and severally as between themselves.
Appears in 1 contract
Samples: Share Purchase Agreement
Indemnification by Stockholders. Subject Each of the Stockholders ------------------------------- jointly and severally (each in his or her individual capacity and on behalf of his or her heirs, successors and permitted assigns, as an indemnifying party, an "Indemnifying Party") covenant and agree to the other provisions of this ARTICLE 9indemnify, defend, protect, and hold ------------------ harmless Sheffield and its Affiliates, successors and assigns (each in its capacity as an indemnified party, an "Indemnitee") at all times from and after ---------- the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each date of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless this Agreement from and against, and reimburse and pay each of them as actually against all Adverse Consequences incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) such Indemnitee as a result and to the extent arising out of: :
(i) any breach of any representations representation or warranties by warranty of any of the Stockholders or the Company or any Stockholder; and in this Agreement;
(ii) any breach nonfulfillment or noncompliance by the Stockholders or the Company of any covenant or obligation thereof contained herein and which is within the direct or indirect control of such Stockholder or the Company;
(iii) any Tax obligations and liabilities, (including, without limitation, all penalties, interest or fines and charges), due after the date hereof but (a) resulting from earnings, operations or other events respecting the Company for all periods up to the date hereof, or (b) incident to any Taxes imposed on the Company for any Taxable year or period that ends on or before the date hereof;
(iv) any liabilities or claims asserted by any Person after the date hereof for personal injuries or property damages (including, without limitation, any indirect, consequential, or punitive damages) arising out of wrongful acts, negligence or strict liability for goods sold or services rendered by the Company prior to the date hereof;
(v) the presence, emanation, migration, disposal, release or threatened release of any Hazardous Materials on, within, or to or from any of the properties presently or heretofore owned or leased by any of the Companies, their Affiliates, or any Stockholder predecessor thereof or the violation or noncompliance by any of the Companies, their Affiliates, or any predecessor thereof with any Environmental, Health and Safety Law, rule or regulation relating to any of the Companies, their Affiliates or their predecessors;
(vi) any liability, including attorney fees and defense costs, in defending or prosecuting the pending litigation among the Company and Xxxxxxx X. Xxxxxx in the Xxxxxxxxxxxxx County, Texas District Court proceeding No. 6313;
(vii) any liability to any person or governmental agency relating to or arising in any manner out of the ESOP Plan or the MR Plan;
(viii) any liability to any person, entity or governmental agency relating to or arising in any manner out of the Company's association with any of the Subsidiaries or relating in any manner to the operations, assets, taxes, liabilities, or activities of any of the Subsidiaries; and/or,
(ix) the Excluded Liabilities and any liability of the Company (except the liabilities identified in the Most Recent Financial Statements or stated in the Adjustment Schedule) relating to its covenants operations, assets, employees, contracts, agreements, insurance plans, or agreements contained employee benefit plans arising in this Agreement that are required whole or in part from any event or act occurring or omissions occurring before the date hereof (whether or not known to be performed the Stockholders or the Company prior to the Closing Date (“JAC Indemnifiable Claims”date hereof). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereof.
Appears in 1 contract
Indemnification by Stockholders. Subject to the other provisions terms and conditions of this ARTICLE 9Article VIII, if the Closing occurs, then, from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”)Stockholders, severally jointly and not jointlyseverally, shall indemnify JAC, Buyer and each of its Affiliates (including Enterprises and each of its the Surviving Entity) and their respective Representativescontrolling persons, directors, managers, officers, employees, agents and successors and assignsother Representatives (collectively, as the case may be (the “JAC Buyer Indemnified Parties”) against, and shall hold each of them the Buyer Indemnified Parties harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all lossesLosses incurred or sustained by, liabilitiesor imposed upon, obligationsthe Buyer Indemnified Parties based upon, damagesarising out of, deficiencieswith respect to or by reason of:
(a) any inaccuracy in or breach of any of the representations or warranties of Enterprises contained in Article IV of this Agreement;
(b) any breach or non-fulfillment of any covenant, actionsagreement or obligation to be performed by any Stockholder or the Stockholder Representative at or after the Closing pursuant to this Agreement;
(c) any breach or non-fulfillment of any covenant, suitsagreement or obligation to be performed by Enterprises or the Stockholder Representative at or prior to the Closing pursuant to this Agreement;
(d) any Stockholder’s exercise or threatened exercise of such Stockholder’s dissenter’s or appraisal rights under the DGCL, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earnings, costs and expenses, including reasonable attorneys’ fees and costs of investigation, suffered or paid by them (collectively, “Losses”) as a result and but only to the extent arising out of: in excess of the Per Share Consideration which, absent such Stockholder’s exercise or threatened exercise of such dissenter’s or appraisal rights, would be payable to such Stockholder hereunder;
(e) the Closing Direction Letter, including any claim or demand relating to the accuracy or completeness thereof but excluding claims caused by Buyer’s failure to comply with the terms of Closing Direction Letter;
(f) the manner in which the Stockholder Representative administers or maintains any portion of the Purchase Price that is delivered to the Stockholder Representative pursuant to this Agreement (including the Stockholder Representative Retained Amount), including any claim or demand relating to the timeliness or manner in which the Stockholder Representative uses, fails to use, distributes or fails to distribute any such funds;
(g) any Indebtedness of Enterprises or the Company as of the Closing that was not satisfied pursuant to Section 2.02(a)(i)(C);
(h) any Closing Payments, Deal Bonus Payments and other bonuses and other amounts (including change of control bonuses, stay put bonuses and retention bonuses) payable to any of the directors, officers or employees of Enterprises or the Company in connection with the consummation of the transactions contemplated by this Agreement, whether payable on the Closing Date or thereafter and whether disclosed to Buyer or not disclosed to Buyer, that were not satisfied pursuant to Section 2.02(a)(i)(D) or Section 2.02(a)(i)(E), but excluding (i) any breach claims caused by Buyer’s failure to cause the payment of any representations of the Deal Bonus Payments after the Closing pursuant Section 6.20 or warranties caused by Buyer’s failure to comply with the Company or any Stockholder; terms of Closing Direction Letter and (ii) any breach such amounts payable as a result of any agreement to which Buyer or an Affiliate of Buyer (excluding Enterprises and the Company) is a party or as a result of any plan, arrangement or agreement instituted or entered into by Enterprises or the Company or any Stockholder at Buyer’s express written request after the date of any of its covenants or agreements contained in this Agreement that are required to be performed and prior to the Closing;
(i) any Pre-Closing Date Taxes; or
(“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by j) the JAC Representative matters set forth on behalf of JAC and the JAC Indemnified PartiesSection 8.02(j) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereofDisclosure Schedules.
Appears in 1 contract
Indemnification by Stockholders. Subject to the limitations of Section 11.11, the Stockholders shall jointly and severally indemnify, defend and hold harmless Clarant, Newco, the Company, and the Surviving Corporation and their respective officers, directors, employees, agents, representatives and Affiliates (other provisions of this ARTICLE 9than the Stockholders) (each, a "Clarant Indemnified Party"), at all times from and after the Closing, the Stockholders (the “Stockholders Indemnifying Party”), severally and not jointly, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them this Agreement harmless from and against, and promptly pay to a Clarant Indemnified Party or reimburse and pay each of them as actually incurred with respect toa Clarant Indemnified Party for, any and all losses, liabilities, obligations, damagesdeficiencies, deficienciesdemands, claims, suits, actions, suits, proceedings, demandsor causes of action, assessments, judgmentslosses, costs, expenses, filing fees, interest, fines, penalties, diminutions or damages or costs or expenses of any and all investigations, proceedings (including appeals, arbitration and mediation), judgments, environmental analyses, remediations, settlements and compromises (in value, lost earnings, costs and expenses, including cluding reasonable attorneys’ fees and costs expenses of investigationattorneys, suffered or paid by them accountants and other experts) (individually and collectively, “the "Losses”") as a result and to the extent sustained or incurred by any Clarant Indemnified Party resulting from, or arising out of: of (ia) any breach of the representations and warranties of the Stockholders or the Company set forth herein or on the schedules, exhibits or certificates delivered in connection herewith, (b) any breach of any representations covenant or warranties agreement on the part of the Stockholders or the Company under this Agreement, (c) any liability under the 1933 Act, the 1934 Act, or other Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to the Company or the Stockholders, and provided to Clarant or its counsel by the Company or the Stockholders (but in the case of the Stockholders, only if such statement was provided in writing) contained in the Registration Statement or any Stockholderprospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact relating to the Company or the Stockholders required to be stated therein or necessary to make the statements therein not misleading, (d) any Claim or Action arising out of or relating to any purchase or redemption of Company Stock, Convertible Securities or Options by the Company prior to the date of this Agreement, (e) except to the extent reserved for (other than as a deferred Tax item) on the most recent financial statements provided pursuant to Section 7.9, or if no such financial statements are provided, the Company Financial Statements dated as of the Balance Sheet Date, any liability of the Company or any Subsidiary for Taxes for any Pre-Closing Period; or (f) any matter identified on SCHEDULE 11.1(f): provided, however, (i) that in the case of any indemnity arising pursuant to clause (c) such indemnity shall not inure to the benefit of Clarant, Newco, the Company or the Surviving Corporation to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and the Stockholders provided in writing corrected information to Clarant counsel and to Clarant for inclusion in the final prospectus, and such information was not so included or properly delivered, and (ii) that no Stockholder shall be liable for any breach by the Company or any Stockholder of any of its covenants or agreements contained in this Agreement that are required to be performed prior to the Closing Date (“JAC Indemnifiable Claims”). The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all of the Indemnifying Party’s obligations to indemnify the JAC Indemnified Parties obligation pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceeded, the Indemnifying Party shall indemnify the JAC Indemnified Parties for all of such obligations, subject Section 11.1 to the limitations set forth in Section 9.3 hereofextent attributable to a breach of any representation, warranty or agreement made herein individually by any other Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Indemnification by Stockholders. Subject to the other provisions terms of this ARTICLE 9------------------------------- Article 10, Seller and the Stockholders (but after the consummation of the Merger, solely the Stockholders, and not the Seller) shall, severally, but not jointly, indemnify, defend, save and hold harmless Parent, Merger Sub, Seller (after the consummation of the Merger) and their successors and assigns (collectively, the "Parent Indemnified Parties"), from and after against any demands, claims (as defined in Section 101 of the Closing, the Stockholders (the “Stockholders Indemnifying Party”U.S. Bankruptcy Code), severally and not jointlyactions, shall indemnify JAC, and each of its Affiliates and each of its respective Representatives, and successors and assigns, as the case may be (the “JAC Indemnified Parties”) and hold each of them harmless from and against, and reimburse and pay each of them as actually incurred with respect to, any and all losses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, assessments, judgments, penalties, diminutions in value, lost earningsliabilities, costs and expensesexpenses (including, including without limitation, reasonable attorneys’ ' and accountants' fees and costs of investigationexpenses), suffered together with interest and penalties, if any, awarded by court order or paid by them otherwise agreed to (collectively, “Losses”) as "Indemnifiable Damages"), suffered by the Parent Indemnified Parties that arise out of or result from any of the following (whether or not a result and third party initiates the proceeding or claim giving rise to the extent arising out of: such Indemnifiable Damages):
(ia) any breach of any representations of the representations, warranties, covenants or warranties agreements made by Seller or the Company or any Stockholder; and Stockholders in this Agreement;
(iib) any breach of any representation, warranty, covenant or agreement made by the Company Seller or any Stockholder in a document, certificate or affidavit delivered by Seller or the Stockholders at the Closing; or
(c) any expenses, charges, fees, or costs associated with any audit of any of its covenants or agreements contained in this Agreement that are required Seller for Taxes related to be performed periods prior to the Closing Date (“JAC Indemnifiable Claims”)Date, and any Taxes imposed as a result of any such audit, even though any such audit commences, or a party does not become aware of any such audit until, after the Closing Date. The JAC Indemnified Parties shall not be entitled to indemnification (which may be asserted by the JAC Representative on behalf of JAC and the JAC Indemnified Parties) under this ARTICLE 9 (other than with respect to JAC Indemnifiable Claims under clauses (ii) or (iii) above) unless the aggregate of all Any of the Indemnifying Party’s obligations foregoing to indemnify the JAC Indemnified Parties pursuant to this ARTICLE 9 exceeds $1,000,000 (the “Basket”), and once this threshold has been exceededcontrary notwithstanding, the Indemnifying Party Stockholders' indemnification obligations in connection with the breach of any provision of Article 5 shall indemnify the JAC Indemnified Parties for all of such obligations, subject to the limitations set forth in Section 9.3 hereofbe several and not joint.
Appears in 1 contract
Samples: Merger Agreement (M2direct Inc)
