Indemnification by the Buyer. (a) In accordance with and subject to the provisions of this Section 5, the Buyer and Guarantor shall, jointly and severally, indemnify and hold harmless the Company, the Parent and their respective affiliates (for purposes of this Section 5, the “Company Indemnitees”) from and against and in respect of any and all loss, damage, diminution in value, liability, cost and expense, including reasonable attorneys’ fees and amounts paid in settlement (collectively, the “Company Indemnified Losses”), suffered or incurred by the Company Indemnitees by reason of, or arising out of (i) any misrepresentation or breach of representation or warranty of the Buyer or Guarantor contained in this Agreement, or in any schedules delivered to the Company or the Parent by or on behalf of the Buyer or Guarantor pursuant to this Agreement; (ii) or the breach of any covenant or agreement of the Buyer or Guarantor contained in this Agreement; (iii) the Assumed Liabilities, including, without limitation, any liability to sureties with respect to bonded jobs; or (iv) the operation of the Business following the Closing, including, but not limited to, any claims made by Transferred Employees concerning COBRA, the WARN Act, unemployment claim liability, or any similar matters as a result of the termination by Buyer of the Transferred Employees.
(b) The Buyer and the Guarantor, jointly and severally (the “Buyer Indemnifying Parties”), shall reimburse the Company Indemnitees on demand for any Company Indemnified Losses suffered by the Company Indemnitees with respect to matters other than Third Party Claims. With respect to Third Party Claims, the Buyer Indemnifying Parties shall reimburse the Company Indemnitees on demand for any Company Indemnified Losses suffered by the Company Indemnitees, based on the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement in respect of any Company Indemnified Losses. The Buyer Indemnifying Parties shall have the opportunity to defend at their expense any claim, action or demand for which the Company Indemnitees claim indemnity against the Buyer Indemnifying Parties; provided that: (i) the defense is conducted by reputable counsel; (ii) the defense is expressly assumed in writing within twenty (20) days after written notice of the claim, action or demand is delivered to the Buyer Indemnifying Parties; and (iii) counsel for the Company and the Parent may participate at all times and in all proceedings (form...
Indemnification by the Buyer. The Buyer agrees to indemnify, defend and hold harmless Seller against and in respect of any loss, damage, deficiency, cost or expense (including without limitation reasonable attorneys’ fees) resulting from any breach by the Buyer of any of the representations, warranties, covenants or agreements of the Buyer contained in this Agreement.
Indemnification by the Buyer. The Buyer shall indemnify the Seller in respect of, and hold it harmless against, any and all Damages incurred or suffered by the Seller resulting from, relating to or constituting:
(a) any breach, as of the date of this Agreement or as of the Closing Date, of any representation or warranty of the Buyer contained in this Agreement, any Ancillary Agreement or any other agreement or instrument furnished by the Buyer to the Seller pursuant to this Agreement;
(b) any failure to perform any covenant or agreement of the Buyer contained in this Agreement, any Ancillary Agreement or any other agreement or instrument furnished by the Buyer to the Seller pursuant to this Agreement; or
(c) any Assumed Liabilities.
Indemnification by the Buyer. From and after the Closing and subject to Section 11.1, the Buyer agrees to indemnify and hold harmless each of the Seller Parties from and against any and all Losses and Expenses imposed upon, or incurred or suffered by, any Seller Group Member as a result of or arising out of or relating to or caused by:
(i) any breach by the Buyer of, or any other failure of the Buyer to perform, any of its covenants, agreements or obligations in this Agreement;
(ii) any breach of or inaccuracy of any representation or warranty of the Buyer contained or in this Agreement or any certificate delivered by or on behalf of the Buyer pursuant hereto; or
(iii) the Assumed Liabilities. provided, however, that in respect of the Non-Fundamental Representations only, the Buyer shall not be required to indemnify and hold harmless pursuant to clause (ii) of this Section 9.2 with respect to Losses and Expenses imposed upon, or incurred or suffered by, Seller Group Members until, and then only to the extent that, the aggregate amount of all such Losses and Expenses exceed the Deductible; and, provided, further, that the aggregate amount of Losses and Expenses that the Buyer shall be required to indemnify and hold harmless pursuant to clause (ii) of this Section 9.2, other than in respect of the Non-Fundamental Representations, shall not exceed the Cap. Any qualification of the representations and warranties of the Buyer or its Affiliates by reference to materiality or Material Adverse Effect, where applicable, relating to the matters stated therein, or words of similar effect, shall be disregarded in determining the amount of Losses and Expenses arising therefrom.
Indemnification by the Buyer. The Buyer agrees to hold harmless, defend, and indemnify the Seller and its officers, directors, subsidiaries, affiliates, employees, agents, attorneys, representatives, successors and assigns (collectively the “Seller Indemnified Parties”) from and against, and pay to the applicable Seller Indemnified Parties the amount of any and all losses, liabilities, claims, obligations, deficiencies, demands, judgments, damages (including incidental and consequential damages), interest, fines, penalties, claims, suits, actions, causes of action, assessments, awards, costs and expenses (including the costs of investigation and defense and attorneys’ and other professionals’ fees), whether or not involving a third party claim arising out of or relating to (individually, a “Loss” and collectively, the “Losses”):
(a) the failure of any of the representations or warranties made by the Buyer in this Agreement to be true and correct in all respects at and as of the Closing Date;
(b) the breach of any covenant or other agreement on the part of the Buyer under this Agreement;
(c) any claims or demands against any Seller Indemnified Party arising out of or resulting to the Assumed Liabilities (as defined below);
(d) any claims or demands against any Seller Indemnified Party arising out of or resulting to Buyer’s ownership, lease, use or operation of the Company after the Closing;
(e) any claims or demands arising out of or relating to that certain Amended and Restated Supply, License and Development Agreement between the Seller and Digital Angel Corporation dated December 27, 2005, as amended;
(f) any claims or demands arising out of or relating to that certain Asset Purchase Agreement among the Seller, Digital Angel Corporation, and Destron Fearing Corporation dated November 12, 2008; and
(g) any claims or demands arising out of or relating to that certain Letter Agreement between the Seller and Digital Angel Corporation dated May 15, 2008.
Indemnification by the Buyer. (a) Subject to the limitations set forth herein, after Closing, the Buyer shall indemnify and defend the Sellers, their respective Agents and Affiliates, and each of the equityholders, heirs, executors, successors and assigns of any of the foregoing (collectively, the “Seller Indemnitees”) against, and shall hold each Seller Indemnitee harmless from, any Loss suffered or incurred by or imposed on such Seller Indemnitee to the extent resulting from or arising out of (i) any breach of any representation and warranty of the Buyer contained in Article IV of this Agreement or the certificates delivered pursuant to Section 2.8(c)(i)(B), (ii) any breach of the covenants or agreements of the Buyer contained in this Agreement, and (iii) without duplication, any Assumed Liability. In the event that the Buyer may be obligated to indemnify a Seller Indemnitee under both subsection (i) and subsection (iii) of this Section 6.4(a), the Buyer’s obligations under subsection (iii) shall be controlling.
(b) The Buyer shall not be liable for (i) any Loss or Losses unless the claim for such Loss or Losses is brought within the Applicable Survival Period, and (ii) any Loss or Losses pursuant to Section 6.4(a)(i) (other than with respect to the Fundamental Representations to which the limitations in this Section 6.4(b) other than the Aggregate Cap shall not apply) unless and until (A) the Loss is a Covered Loss and (B) the aggregate amount of all Covered Losses incurred by the Seller Indemnitees exceeds the Deductible, and then only to the extent that such Covered Losses exceed the Deductible; provided that (1) the cumulative indemnification obligations of the Buyer pursuant to Section 6.4(a)(i) (other than with respect to the Fundamental Representations to which the limitations in this Section 6.4(b) other than the Aggregate Cap shall not apply) shall in no event exceed the 10% Cap in the aggregate and (2) the cumulative indemnification obligations of the Buyer pursuant to Section 6.4(a)(i) and (ii) shall in no event exceed the Aggregate Cap in the aggregate.
(c) Except as set forth in Section 2.9, Section 2.11 and Section 7.7, the Sellers acknowledge and agree that its and each Seller Indemnitee’s sole and exclusive remedy with respect to any and all matters arising out of, relating to or connected with this Agreement shall be pursuant to the indemnification provisions set forth in this Article VI; provided that the provisions of this Section 6.4(c) shall not apply in the case...
Indemnification by the Buyer. The Buyer shall indemnify the Indemnifying Stockholders in respect of, and hold them harmless against, any and all Damages incurred or suffered by the Indemnifying Stockholders resulting from, relating to or constituting any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Buyer or the Transitory Subsidiary contained in this Agreement or the Buyer Certificate.
Indemnification by the Buyer. The Buyer shall indemnify and hold harmless each Seller and each underwriter, if any, which facilitates the disposition of Registrable Securities for the account of the Sellers, and each of their respective officers and directors and each person who controls such Seller or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) (each such person being sometimes hereinafter referred to as an “Indemnified Person”) from and against any losses, claims, damages or liabilities, joint or several, to which such Indemnified Person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, not misleading, or arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any prospectus or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Buyer hereby agrees to reimburse such Indemnified Person for all reasonable legal and other expenses incurred by them in connection with investigating or defending any such action or claim as and when such expenses are incurred; provided, however, that the Buyer shall not be liable to any such Indemnified Person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon (i) an untrue statement or alleged untrue statement made in, or an omission or alleged omission from, such registration statement or prospectus in reliance upon and in conformity with written information furnished to the Buyer by such Indemnified Person expressly for use therein or (ii) in the case of the occurrence of an event of the type specified in Section 12.2(e), the use by the Indemnified Person of an outdated or defective prospectus after the Buyer has provided to such Indemnified Person an updated prospectus correcting the untrue statement or alleged untrue statement or omission or alleged omission giving rise to such loss, claim, damage or liabil...
Indemnification by the Buyer. (a) The Buyer agrees, subject to the other terms and conditions of this Agreement to indemnify the Sellers and its Affiliates, officers, directors, employees, agents, successors and assigns (each a "Seller Indemnified Party") against and hold them harmless from all Losses arising out of (i) the breach of any representation or warranty of the Buyer contained herein, and (ii) any breach of any covenant or agreement of the Buyer contained herein. Anything in Section 8.1 to the contrary notwithstanding, no claim may be asserted nor may any action be commenced against the Buyer for breach of any representation or warranty contained herein, unless written notice of such claim or action is received by the Buyer describing in detail the facts and circumstances with respect to the subject matter of such claim or action on or prior to the thirtieth (30th) day after the date on which the representation or warranty on which such claim or action is based ceases to survive as set forth in Section 8.1, and such claim or action arose on or prior to the date such representation or warranty ceased to survive, in which case such representation or warranty will survive as to such claim until such claim has been finally resolved.
(b) The indemnification obligations of the Buyer pursuant to Section 8.3(a) shall not be effective until the aggregate dollar amount of all Losses (including without limitation the Buyer's expenses of defending and/or settling any claim or dispute giving rise to such indemnification obligation) that would otherwise be indemnifiable pursuant to Section 8.3(a) exceeds the Threshold Amount, and then only to the extent such aggregate amount exceeds the Threshold Amount. The indemnification obligations of the Buyer pursuant to Section 8.3(a) shall be effective only until the dollar amount paid in respect of the Losses (including without limitation the Buyer's expenses of defending and/or settling any claim or dispute giving rise to such indemnification obligation) indemnified against under Section 8.3(a) aggregates to equal the Maximum Amount. For purposes of this Section 8.3(b), in computing such individual or aggregate amounts of claims, the amount of any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the Seller Indemnified Parties from any third party with respect thereto shall be deducted from each such claim.
(c) [Not applicable]
(d) A Seller Indemnified Party shall give the Buyer written notice of an...
Indemnification by the Buyer. From and after the Closing, the Buyer agrees to indemnify, defend and save the Company, its stockholders, and their respective Affiliates, and each of their respective officers, directors, employees, attorneys, agents, Employee Benefit Plans and fiduciaries, plan administrators or other parties dealing with such plans (each, a “Company Indemnified Party”) forever harmless from and against, and to promptly pay to a Company Indemnified Party or reimburse a Company Indemnified Party for, any and all Losses sustained or incurred by any Company Indemnified Party relating to, resulting from, arising out of or otherwise by virtue of any of the following:
(i) any inaccuracy in or misrepresentation or breach of a representation or warranty made by the Buyer, provided that for purposes of this Section 6.4, all “material adverse effect,” “material” or similar qualifiers contained herein or therein shall not be given any effect herein or in the Buyer Transaction Documents;
(ii) non-compliance with or breach by the Buyer of any of the covenants or agreements contained in this Agreement or the Buyer Transaction Documents to be performed by the Buyer;
(iii) any liability or obligation of the Buyer or any assertion against a Company Indemnified Party, arising out of or relating, directly or indirectly, to any of the Assumed Liabilities; and
(iv) any claim for payment of fees and/or expenses as a broker or finder in connection with the origin, negotiation, execution or consummation of this Agreement based upon an alleged agreement between claimant and the Buyer.
