Indemnification by the Sellers. From and after the Closing Date, each of the Sellers shall, subject to the limitations set forth in Section 6.4, severally and not jointly, save, defend, indemnify and hold harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to: (a) any breach of any representation or warranty made by the Sellers contained in this Agreement; (b) any breach of any covenant or agreement by the Sellers contained in this Agreement; (c) any Seller Taxes; (d) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and (e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000.
Appears in 2 contracts
Samples: Purchase Agreement (Differential Brands Group Inc.), Purchase Agreement
Indemnification by the Sellers. (a) From and after the Closing DateClosing, each of the Sellers shall, subject to the limitations set forth in Section 6.4, shall jointly and severally and not jointly, save, defend, indemnify and hold harmless the Buyer EII, Florham and its their directors, officers, employees, agents, stockholders and Affiliates (including collectively, the Company“Purchasing Parties”) and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, against any and all lossesLosses finally awarded arising out of, damagesresulting from or in any way related to: (i) a breach by the Sellers or the Company of any of their representations and warranties contained herein, liabilitiesor (ii) the failure to perform or satisfy, deficiencieswhen due, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to:
(a) any breach of any representation or warranty covenants and agreements made by the Sellers contained or the Company in this Agreement;Agreement or in any other document or certificate delivered by the Sellers or the Company at the Closing pursuant hereto.
(b) Notwithstanding the foregoing, the indemnification obligations of the Sellers under Section 7.1(a)(i) above shall not be applicable to Losses incurred by EII Parties which shall be in excess of the Purchase Price (the “Indemnity Cap”); provided, that there shall be no Indemnity Cap with respect to the matters contemplated by Section 7.1(a)(ii) above or for any breach of any covenant the provisions of Section 2.1 (a), (b) or agreement by the Sellers contained in this Agreement;
(c) any Seller Taxes;
(d) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including and such indemnity obligations shall survive indefinitely. Any payment made to any Purchasing Party pursuant to the indemnification obligations under this Section 2.2 or out 7.1 shall constitute a reduction in value of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company Purchase Price paid pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000this Agreement.
Appears in 1 contract
Samples: Interest Purchase Agreement (Florham Consulting Corp)
Indemnification by the Sellers. From Subject to the other terms and conditions of this Article VIII, from and after the Closing Dateconsummation of the Merger, each of the Sellers Seller shall, subject to the limitations set forth in Section 6.4, severally and not jointly, save, defend8.5, indemnify and hold harmless defend each of Parent, Merger Sub I, Merger Sub II, the Buyer Ultimate Surviving Corporation and its Affiliates and their respective Representatives (including collectively, the Company“Parent Indemnitees”) against, and the respective Representatives, successors and assigns of shall hold each of the foregoing them harmless from and against, and shall compensate pay and reimburse each of the foregoing them for, such Seller’s Pro Rata Percentage of any and all lossesLosses incurred or sustained by, damagesor imposed upon, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any of the foregoing Parent Indemnitees as a result of, arising out of or relating to:
(a) any breach or alleged breach of any representation of the representations or warranty made by warranties of the Sellers Company contained in (i) this Agreement (including, for the avoidance of doubt, the Specified Claims) or (ii) any certificate delivered by or on behalf of the Company in connection with this Agreement;
(b) any breach or non-fulfillment of any covenant covenant, agreement or agreement obligation to be performed by the Sellers contained in Company pursuant to this AgreementAgreement as of or prior to the Closing;
(c) any Seller TaxesIndebtedness not fully satisfied at Closing;
(d) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; andCompany Expenses not fully satisfied at Closing;
(e) any amounts payable Actions regarding the amount of the Merger Consideration received by a Seller and any claims by any Person that such Person is entitled to receive any portion of the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated Merger Consideration; and
(f) any Fraud in connection with this Agreement committed as of July 15, 2016, net of any Tax benefit or prior to the Company resulting from such paymentClosing by or on behalf of the Company, up to a maximum aggregate amount of NOK 1,000,000its Representatives or any Seller.
Appears in 1 contract
Samples: Merger Agreement (3d Systems Corp)
Indemnification by the Sellers. From The Sellers shall indemnify and after the Closing Date, defend each of the Sellers shallCompany, subject to the limitations set forth in Section 6.4, severally each Subsidiary and not jointly, save, defend, indemnify and hold harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing from and their respective successors, transferees, assignees, officers, directors, employees, shareholders, agents, advisors or representatives (each, a "BUYER INDEMNITEE") against, and shall compensate and reimburse hold each of the foregoing forBuyer Indemnitee harmless from any loss, any and all lossesliability, damagesobligation, liabilitiesdeficiency, deficienciesdamage, claimsTax or expense including, without limitation, interest, awards, judgments, penalties, costs reasonable attorneys' and expenses consultants' fees and disbursements (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”"DAMAGES"), incurredthat any Buyer Indemnitee may suffer or incur based upon, sustained attributable to, arising from, relating to or suffered by in connection with any of the foregoing as a result of, arising out of following (whether or relating to:not in connection with any third party claim):
(a) any breach The inaccuracy of any representation or warranty made by the Sellers contained in this AgreementAgreement or in any other Transaction Documents;
(b) any breach of The Sellers' failure to perform or to comply with any covenant or agreement required to be performed by the Sellers contained in this Agreementany Transaction Document;
(c) any Seller TaxesAny brokerage, finder's fee or the like incurred as a result of the actions of the Sellers in connection with the transactions herein contemplated;
(d) any claim or amounts due Any liability relating to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; andEmployee Benefit Plan other than Assumed Plans;
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000.Item;
(f) Any Designated Employee Liability; and
Appears in 1 contract
Indemnification by the Sellers. From Subject to Sections 9.1 and after the Closing Date9.7 and without duplication, each of the Sellers shall, subject to the limitations set forth in Section 6.4, Seller shall severally (and not jointly, save, defend, jointly or jointly and severally) indemnify and hold harmless save the Buyer and its Affiliates (including the Company) Purchaser and the respective RepresentativesCorporation harmless for and from:
(1) any Losses, successors and assigns of each of the foregoing from and againstwhether known or unknown, and shall compensate and reimburse each of the foregoing for, any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any of the foregoing Purchaser or by the Corporation as a result of, arising out of or relating to:
(a) any breach of any representation representation, warranty or warranty made by obligation on the part of the Sellers contained in this Agreement or in any certificate or document delivered pursuant to or contemplated by this Agreement, and for the purpose of determination of whether or not there has been a breach of any such representation or warranty, any qualification thereof by reference to “materiality” shall be ignored;
(b2) all debts and liabilities of the Corporation existing at the Closing Time other than the Permitted Liabilities;
(3) any Losses in respect of any Taxes, whether known or unknown, suffered by the Purchaser or by the Corporation for any period up to the Closing Date for which no adequate reserve has been provided and disclosed in the Audited Financial Statements;
(4) any Losses, whether known or unknown, suffered by the Purchaser or the Corporation as a result of any breach of representation or warranty contained in Sections 3.1(1) to and including 3.1(7) and in Sections 3.1(10) and 3.1(31) or in any document delivered pursuant to or contemplated by this Agreement and for the purpose of determination of whether or not there has been a breach of a representation and warranty, any qualification thereof by reference to “materiality” shall be ignored;
(5) any Losses for any breach of any covenant or agreement by of the Sellers representations and warranties contained in this Agreement;
(c) Agreement or in any Seller Taxes;
(d) any claim agreement, instrument, certificate or amounts due to any Person in connection with the Closing other document executed or delivered pursuant to any written hereto involving fraud or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fundfraudulent misrepresentations; and
(e6) any amounts payable by the Company pursuant failure of such Seller to that certain agreement between the Company transfer good and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit marketable title to the Company resulting from such payment, up Purchased Shares to a maximum aggregate amount the Purchaser free and clear of NOK 1,000,000all Encumbrances.
Appears in 1 contract
Indemnification by the Sellers. From The Purchaser and after the Closing Dateits Affiliates, officers, directors, employees, agents, successors and assigns (each of the Sellers shall, subject to the limitations set forth in Section 6.4a “Purchaser Indemnified Party”) shall be indemnified and held harmless by each Seller, severally and not jointlyjointly based upon its Pro Rata Share, save, defend, indemnify for and hold harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, against any and all Liabilities, losses, damages, liabilitiesclaims, deficiencies, claimscosts and expenses, interest, awards, judgments, penalties, costs judgments and expenses penalties (including reasonable and documented attorneys’ feesand consultants’ fees and expenses) actually suffered or incurred by them (including any Action brought or otherwise initiated by any of them), costs specifically excluding punitive, incidental and consequential damages, other out-of-pocket expenses than punitive, incidental and consequential damages incurred in investigating, preparing or defending the foregoing) pursuant to any Third Party Claim (hereinafter a “Loss”, and collectively, “Losses”), incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating toresulting from:
(a) any the breach of any representation or warranty made by the Sellers any Seller contained in this Agreement or any other Transaction Document, other than indemnification for a breach of any representation or warranty contained in Section 3.24 of this Agreement, the indemnification of which shall be governed solely by Section 6.07;
(b) any the breach of any covenant or agreement by the Sellers any Seller contained in this Agreement or any other Transaction Document, other than indemnification for a breach of any covenant contained in Article VI of this Agreement;, the indemnification of which shall be governed solely by Section 6.07; or
(c) any Seller Taxes;
(d) and all Losses suffered or incurred by the Purchaser or the Company by reason of or in connection with any claim or amounts due to cause of action of any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative third party to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or extent arising out of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net liability or obligation of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000Seller.
Appears in 1 contract
Samples: Securities Purchase Agreement (Digital Realty Trust, Inc.)
Indemnification by the Sellers. From and after the Closing Date, each of the Sellers shall, subject to the limitations set forth in Section 6.4, Each Seller will severally and not jointly, save, defend, indemnify and hold harmless the Buyer and each of its directors, officers, shareholders, partners, employees, agents and Affiliates (including including, following the Closing, each Acquired Company) ), and the respective Representatives, successors Representatives and assigns Affiliates of each of the foregoing from Persons (each, a “Buyer Indemnified Person”), from, against and against, and shall compensate and reimburse each in respect of the foregoing for, any and all Actions, Liabilities, Governmental Orders, Encumbrances, losses, damages, liabilitiesbonds, deficienciesdues, claimsassessments, interest, awards, judgmentsfines, penalties, costs and expenses (including reasonable and documented attorneys’ Taxes, fees, costs (including costs of investigation, defense and other out-of-pocket enforcement of this Agreement), expenses incurred or amounts paid in investigatingsettlement (in each case, preparing including reasonable attorneys’ and experts fees and expenses), whether or defending the foregoing) not involving a Third Party Claim (hereinafter collectively, “Losses”), incurred, sustained incurred or suffered by the Buyer Indemnified Persons or any of the foregoing them as a result of, arising out of or directly or indirectly relating to:
: (a) any breach of of, or inaccuracy in, any representation or warranty made by the Company or the Sellers contained or any of them in this Agreement;
Agreement (other than in Section 4), any Ancillary Agreement or in any document, Schedule, instrument or certificate delivered pursuant to this Agreement (in each case, as such representation or warranty would read if all qualifications as to materiality, including each reference to the defined term “Material Adverse Effect,” were deleted therefrom); (b) any fraud of the Company or any breach or violation of any covenant or agreement of the Company in or pursuant to this Agreement or any Ancillary Agreement to the extent required to be performed or complied with by the Sellers contained in this Agreement;
Company at or prior to the Closing; (c) any breach of, or inaccuracy in, any representation or warranty made by such Seller Taxes;
in Section 4, any Ancillary Agreement or in any document, Schedule, instrument or certificate delivered pursuant to this Agreement (in each case, as such representation or warranty would read if all qualifications as to materiality, including each reference to the defined term “Material Adverse Effect,” were deleted therefrom); or (d) any claim fraud of any of the Sellers or amounts due to any Person breach or violation of any covenant or agreement of such Sellers or any of them (including under this Section 10) in connection with the Closing or pursuant to this Agreement or any written or oral agreement with Ancillary Agreement. As set forth in Section 2.4.1, it is the Companyintent of the parties that, except as otherwise set forth in Section 10.6(c) and Section 10.7, the Escrow Fund shall serve as the sole recourse of Buyer for any Law or otherwise based upon breaches of any allocation of payments made by the Sellers’ Representative representations and warranties set forth in Section 3 and Section 4 of this Agreement and any recourse to the Escrow Fund shall be (a) pro rata as to all Sellers for all Losses arising out of any breach of the amounts representations and warranties set forth in Section 3 and (b) several as to be paid under this Agreement, including pursuant to Section 2.2 or each Seller for all Losses arising out of any breach by a Seller of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company representations and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000warranties set forth in Section 4.
Appears in 1 contract
Indemnification by the Sellers. From (a) Subject to Section 11.01, the Sellers, jointly and after the Closing Dateseverally, each of the Sellers shall, subject to the limitations set forth in Section 6.4, severally and not jointly, save, defend, shall indemnify and hold the Purchaser, its respective Affiliates and their respective employees, officers and directors (collectively, the "PURCHASER INDEMNIFIED PARTIES") harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate agree to promptly defend any Purchaser Indemnified Party from and reimburse each of the foregoing any Purchaser Indemnified Party for, any and all losses, damages, costs, expenses, liabilities, deficienciesobligations and claims of any kind (including, claimswithout limitation, interest, awards, judgments, penalties, any Action brought by any Governmental Authority or Person and including reasonable attorneys' fees and other legal costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoingreasonably incurred) (hereinafter collectively, “Losses”"LOSSES"), incurredwhich such Purchaser Indemnified Party may at any time suffer or incur, sustained or suffered become subject to, as a result of or in connection with:
(i) the inaccuracy as of the date of this Agreement or the Closing Date of any representations and warranties made by any Seller in or pursuant to this Agreement, without giving effect to any materiality qualifier or exception related to Material Adverse Effect, or the Ancillary Agreements, or in any instrument, certificate or affidavit delivered by any Seller at the Closing in accordance herewith; or
(ii) any failure by any Seller to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement or the Ancillary Agreements or under any of the foregoing as a result of, arising out of documents or relating to:
(a) any breach of any representation or warranty made other instruments delivered by the Sellers contained in this Agreement;
(b) any breach of any covenant or agreement by the Sellers contained in this Agreement;
(c) any Seller Taxes;
(d) any claim or amounts due to any Person in connection with the Closing pursuant to any written this Agreement or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow FundAncillary Agreements; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000.or
Appears in 1 contract
Samples: Asset Purchase Agreement (Cellnet Data Systems Inc)
Indemnification by the Sellers. From and after the Closing Date, each of the Sellers shall, subject to the limitations set forth in Section 6.4, severally and not jointly, save, defend, indemnify and hold harmless the Buyer (A) The Purchaser and its Affiliates (including the Company) and the respective Representativesofficers, successors directors, employees and assigns of each agents of the foregoing from (each a "Purchaser Indemnified Party") shall be indemnified and againstheld harmless, on a joint and shall compensate several basis, by the Sellers for and reimburse each of the foregoing for, against any and all Liabilities, losses, damages, liabilitiesclaims, deficiencies, claimscosts and expenses, interest, awards, judgments, penalties, costs judgments and expenses penalties (including reasonable attorneys' fees and documented attorneys’ fees, costs and other out-of-pocket expenses expenses) actually suffered or incurred in investigating, preparing by them (including any Action brought or defending the foregoingotherwise initiated by any of them) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any of the foregoing as a result of, "Loss") arising out of or relating toresulting from:
(ai) any the breach of any representation or warranty made by the Sellers contained in this Agreementany Acquisition Document, in each case without giving effect to any materiality or "Material Adverse Effect" qualifiers set forth therein;
(bii) any the breach of any covenant or agreement by the Sellers contained in this Agreementany Acquisition Document;
(ciii) Liabilities of the Company to the extent not reflected on the Closing Statement of Net Current Assets, whether arising before or after the Closing, arising from or relating to the ownership or actions or inactions of the Company or the conduct of the Business prior to the Closing; or
(iv) any Seller Taxes;
(d) and all Losses suffered or incurred by the Purchaser or the Company by reason of or in connection with any claim or amounts due to cause of action of any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative third party to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or extent arising out of the Indemnity Escrow Fund; and
(e) any amounts payable by action, inaction, event, condition, liability or obligation of any Seller or the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit occurring or existing prior to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lincoln Educational Services Corp)
Indemnification by the Sellers. From (a) Subject to the provisions of this Article VIII (including the provisions of Sections 8.2(b) and after the Closing Date8.7), each of the Sellers shallseverally, subject to the limitations set forth in Section 6.4, severally and not jointlyjointly nor jointly and severally, savehereby agrees, defendfrom and after the Closing, indemnify to indemnify, defend and hold harmless the Buyer and Buyer, its Affiliates (including including, post-Closing, the CompanyTransferred Companies) and the their respective RepresentativesRepresentatives and their heirs, successors and assigns permitted assigns, each in its capacity as such (the “Buyer Indemnified Parties,” collectively with the Seller Indemnified Parties, the “Indemnified Parties”) from, against and in respect of each of the foregoing from and againstany damages, and shall compensate and reimburse each of the foregoing for, any and all losses, damagescharges, liabilitiesobligations, Liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, claimsTaxes (without duplication, in the event that a claim for Taxes arises under both Sections 4.9 and 6.4(a)), royalties, fines, interest, awards, judgments, penalties, penalties and reasonable costs and expenses (including reasonable fees and documented expenses of attorneys’ fees, costs accountants, consultants and other out-of-pocket expenses reasonably incurred in investigatingthe investigation, preparing preparation, defense, settlement and ongoing monitoring of any of the same or defending the foregoingin asserting, preserving or enforcing rights under this Agreement) (hereinafter collectively, “Losses”)) imposed on, incurredsustained, sustained incurred or suffered by by, any of the foregoing as a result ofBuyer Indemnified Parties, whether in respect of third-party claims, claims among the Buyer and the Sellers, or otherwise, directly or indirectly, relating to or arising out of or relating to:
resulting from (ai) any breach of any representation or warranty made by such Seller or the Sellers Company contained in this Agreement or any Ancillary Agreement;
; it being understood that, for purposes of Section 8.2(a)(i), any qualifications relating to materiality or “Material Adverse Effect” contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached, (bii) any breach breach, violation or non-fulfillment of any covenant or agreement by of such Seller or the Sellers Company contained in this Agreement;
Agreement or any Ancillary Agreement (cincluding as to the payment, or setting aside of cash for payment, of Taxes for which the Sellers are responsible in accordance with Section 6.4(a)), or (iii) any Seller Taxes;
(d) any claim action taken or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made not taken by the Sellers’ Representative or his nominee (including any failure to distribute, or error in the distribution of, the aggregate purchase price payable by Buyer under this Agreement and the Minority Purchase Agreements to the Sellers of and the amounts to be paid under this AgreementMinority Shareholders, including whether such distribution is made by Sellers’ Representative or by XxXxxxx Xxxxxxxxx or another nominee) or any action taken or not taken by the Buyer in reliance upon the actions taken or not taken or communications or writings given or executed by the Sellers’ Representative pursuant to Section 2.2 or out 10.11(b). For greater certainty, notwithstanding anything to the contrary herein, no Seller shall be liable to the Buyer for any breach by another Seller of any of the Individual Representations of such other Seller or for such Seller’s Willful Misconduct or for the breach of any covenant of another Seller.
(b) The Sellers shall not be liable to indemnify the Buyer Indemnified Parties under Section 8.2(a)(i) for Losses arising from breaches of the several representations and warranties of the Company and the Sellers under Article IV hereof (the “Company Representations”) unless and until:
(i) in the case of the Company Representations other than (x) the Company Representations in Sections 4.7 (Financial Statements), 4.13 (Intellectual Property) and 4.29 (Disclosure), which are the subject to Section 8.2(b)(ii), and (y) the Company Representations in Sections 4.22(b) (Absence of Indebtedness) and 4.9 (Taxes), which shall not be subject to the following limitations, (A) each individual Loss exceeds the De Minimis, all such individual Losses being disregarded in calculating the Aggregate Indemnity Escrow FundThreshold or Basket; provided, however, that, if all such individual Losses that do not exceed the De Minimis in the aggregate equal or exceed the De Minimis Basket, then all such individual Losses and any others shall be included in calculating the Aggregate Indemnity Threshold or Basket, and (B) the aggregate amount of all such Losses included pursuant to clause (A) exceeds the applicable Aggregate Indemnity Threshold, in which case the Sellers shall be liable only for such Losses as are in excess of the Basket, all Losses below the Basket being for the account of the Buyer Indemnified Parties; and
(eii) any amounts payable by in the case of the Company pursuant to Representations in each of (x) Section 4.7 (Financial Statements), (y) Section 4.13 (Intellectual Property) and (z) Section 4.29 (Disclosure), (A) each individual Loss exceeds the De Minimis, all such individual Losses being disregarded in calculating the Aggregate Indemnity Threshold or Basket; provided, however, that, if all such individual Losses that certain agreement between do not exceed the Company De Minimis in the aggregate equal or exceed the De Minimis Basket, then all such individual Losses and Xxxxxx Xxxxxxxx Xxxxany others shall be included in calculating the Aggregate Indemnity Threshold or Basket, dated as of July 15, 2016, net of any Tax benefit to and (B) the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000.all such Losses included in the calculation pursuant to clause (A) and arising from breaches of the representations and warranties under the applicable Section exceeds its applicable Aggregate Indemnity Threshold, in which case the Sellers shall be liable under such Section only for such Losses as are in excess of such Aggregate Indemnity Threshold, all Losses below the Aggregate Indemnity Threshold being for the account of the Buyer Indemnified Parties. For the avoidance of doubt, Losses resulting from the breach by a Seller of any of its Individual Representations (which are contained in Article III) shall not be included in calculating any Aggregate Indemnity Threshold or Basket. Notwithstanding anything to the contrary in this Agreement, except in the case of Willful Misconduct (as set forth in
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (J2 Global Communications Inc)
Indemnification by the Sellers. From Subject to the terms, conditions and limitations set forth in this Article IX, after the Closing Date, each of Closing:
(a) the Sellers shall, subject to the limitations set forth in Section 6.4jointly and severally, severally and not jointlyindemnify, save, defend, indemnify defend and hold harmless the Buyer Buyer, its members, stockholders, partners, officers, employees and agents, and its Affiliates (including the Company) and the their respective Representatives, Affiliates (including, after the Closing, the Acquired Group), partners, successors and permitted assigns of each of the foregoing (each, a “Buyer Indemnified Party”), from and against, and shall compensate and promptly pay or reimburse each of the foregoing Buyer Indemnified Party for, any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses Losses sustained or incurred (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, any Losses sustained or suffered incurred after the end of the applicable survival period, provided that a claim is made prior to the end of the applicable survival period in accordance with the terms of this Agreement) by any of the foregoing as a result ofBuyer Indemnified Party based upon, arising out of or relating toresulting from:
(ai) any breach of any or inaccuracy in a representation or warranty made by the Sellers contained in Article IV of this Agreement or in any Compliance Certificate relating thereto;
(ii) any breach of any Covenant of any member of the Acquired Group in this Agreement required to be performed as of or in connection with and prior to or at the Closing;
(iii) (A) any obligation of or with respect to the Acquired Group for any Taxes for any Pre‑Closing Tax Period (net of any such Taxes which resulted in an adjustment to the Net Cash Purchase Price, as finally determined (to the extent of such adjustment)); (B) any Taxes of any member of an affiliated, combined or unitary group of which the Company is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Sec. 1.1502 6 or any similar provision of foreign, state or local Law; and (C) any and all Taxes of any Person (other than a member of the Acquired Group) imposed on the Acquired Group as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date;
(iv) any Liability, or loss of a Tax deduction, under, or as a result of the application of, Section 280G of the Code;
(v) any Indebtedness of the Acquired Group as of the Closing;
(vi) any Sale Transaction Expenses;
(vii) any claims that any payments set forth on the Allocation Spreadsheet were not properly calculated, allocated or distributed by any Company or the Sellers’ Representative among the Persons set forth therein; and
(viii) any Fraud committed by or on behalf of the Company or any Seller in connection with the Contemplated Transactions.
(b) each Seller shall, on a several basis, indemnify, defend and hold harmless the Buyer Indemnified Parties from and against, and shall promptly pay or reimburse each Buyer Indemnified Party for, any and all Losses sustained or incurred (including any Losses sustained or incurred after the end of the applicable survival period, provided that a claim is made prior to the end of the applicable survival period in accordance with the terms of this Agreement) by any Buyer Indemnified Party based upon, arising out of or resulting from:
(i) any breach of or inaccuracy in a representation or warranty made by such Seller in Article III of this Agreement or in any Compliance Certificate delivered by such Seller pursuant hereto;
(ii) any breach of any Covenant of such Seller in this Agreement;
(biii) (A) any breach Taxes of such Seller; and (B) any covenant or agreement by the Sellers contained in this Agreement;Transfer Taxes allocated to such Seller pursuant to Section 8.2; and
(civ) any Fraud committed by or on behalf of such Seller Taxes;
(d) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000Contemplated Transactions.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (AquaVenture Holdings LTD)
Indemnification by the Sellers. From and after the Closing DateClosing, each of the Sellers shallshall indemnify, subject to the limitations set forth in Section 6.4, severally and not jointly, savereimburse, defend, indemnify and hold harmless the Buyer Buyers and its Affiliates (including the Company) and the respective Representativestheir Representatives for, successors and assigns of each of the foregoing from and againstfrom, and shall compensate and reimburse each of the foregoing for, any and against all losses, damages, liabilities, deficienciesdemands, claims, interestactions or causes of action, awardsand Damages, judgmentsasserted against, penaltiesresulting to, costs and expenses (including reasonable and documented attorneys’ feesimposed on, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered or incurred by any of the foregoing as a result ofBuyers or their Representatives, arising out directly or indirectly, in connection with any of or relating tothe following:
(a) any breach of of, or inaccuracy in, any representation or warranty made by of the Sellers contained in this AgreementAgreement or any certificate, instrument or other document delivered pursuant hereto or in connection herewith; provided, however, that the Sellers shall not have any liability for any breach of, or inaccuracy in, a representation or warranty set forth in SECTION 3.4, 3.7, 3.8, 3.9, 3.11, 3.12, 3.13, 3.14, 3.15, 3.16, 3.21 OR 3.22, and shall have no obligation to indemnify the Buyers and their Representatives in respect thereof, if and to the extent that (i) as a result of such breach, one or more of the Partnerships suffers Damages, (ii) such breach does not constitute a breach, violation or default under any Organizational Document of the Companies, and (iii) such breach was not willful, intentional or fraudulent, and did not occur as a result of the gross negligence, neglect or willful or intentional misconduct of (x) any LLC in the performance of its duties as a general partner of a Partnership or (y) any Seller in the performance of its duties as a manager of an LLC;
(b) any breach of any covenant or agreement by of the Sellers contained in this Agreement;
(c) any Seller TaxesTaxes of the LLCs and the Sellers for periods (or portions thereof) ending on or prior to the Closing Date;
(d) any claim or amounts due to any Person in connection with and all liabilities and obligations of JWE Management other than the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow FundAssumed Liabilities; and
(e) any amounts payable the matters disclosed in SCHEDULE 3.1(c); provided, however, that the Sellers' obligations from time to time under SECTIONS 8.1(a) AND (b) may not exceed (i) the value of the OP Units subject to the Pledge Agreement at such time, determined by multiplying the number of such OP Units by the Company pursuant to that certain agreement between AIMCO Market Price at such time, minus (ii) the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000cash payments theretofore made by the Sellers to satisfy their obligations under SECTIONS 8.1(a) AND (b), except that (x) willful, intentional or fraudulent breaches or inaccuracies shall not be subject to any limitation, and (y) the Sellers' obligations under SECTIONS 8.1(a) AND (b) may not exceed $1,000,000 for breaches or inaccuracies that are not willful, intentional or fraudulent and are disclosed in writing by the Sellers to the Buyers prior to the Closing Date.
Appears in 1 contract
Samples: Acquisition Agreement (Apartment Investment & Management Co)
Indemnification by the Sellers. From and after the Closing Date, each of the Sellers shall, subject Subject to the limitations set forth in Section 6.411.6, severally from and not jointlyafter the Closing, savethe Sellers shall, defendjointly and severally, indemnify indemnify, defend and hold harmless the Buyer Buyer, its Affiliates, the Health Center Assignee and its Affiliates (including the Company) Buyer’s manager, and the respective Representatives, successors and assigns of each of their respective officers, directors, employees, stockholders, members, agents and representatives (collectively, the foregoing “Buyer Indemnitees”) from and against, and shall compensate and reimburse each of the foregoing for, against any and all claims, losses, damages, liabilities, deficienciesobligations or expenses, claims, interest, awards, judgments, penalties, costs including reasonable legal fees and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurredto the extent relating, sustained arising or suffered by resulting, directly or indirectly, from any of the foregoing as a result of, arising out of or relating tofollowing:
(ai) any breach of any representation or warranty made by of the Sellers contained in this Agreement, the Schedules hereto, any certificate delivered by Sellers, or the Ancillary Agreements, without giving effect to any supplements to the schedules hereto after the date hereof (but subject to the provisions of Section 7.5);
(bii) any breach of any covenant or agreement by of the Sellers contained in this AgreementAgreement or the Ancillary Agreements;
(ciii) any Seller TaxesExcluded Asset or Excluded Liability;
(div) any claim fees, expenses or amounts due other payments incurred or owed by the Sellers to any Person agent, broker, investment banker or other firm or person retained or employed by them in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made transactions contemplated by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and
(ev) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit all liabilities relating to the Company resulting from such paymentownership of the Purchased Assets or conduct or operation of the Facility, up including both the Retirement Center and the Health Center, prior to a maximum aggregate amount of NOK 1,000,000the Closing Date, other than the Assumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Retirement Corp)
Indemnification by the Sellers. From In accordance with and subject to the terms of this Article VIII, from and after the Closing DateClosing, each of the Sellers shall, subject to the limitations set forth in Section 6.4, severally jointly and not jointly, save, defendseverally, indemnify and hold harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing Parent and the Purchaser and each of their respective Affiliates, directors, officers, employees, agents and other representatives from and against, and shall compensate and reimburse each of the foregoing for, against any and all Claims, Legal Proceedings, Taxes, assessments, losses, damages, liabilities, deficienciessettlements, claimsjudgments, fines, penalties, interest, awardsremoval and cleanup costs, judgmentsnatural resource damages, penalties, costs of remediation and other costs and expenses (including reasonable fees and documented attorneys’ disbursements of counsel, court costs, reasonable third-party expert and consultant fees, and reasonable costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoingof investigation) (hereinafter collectively, “Losses”)) that are asserted against, incurred, sustained imposed upon or suffered incurred by any of the foregoing such Person as a result of, based upon or arising out of or relating toin connection with any of the following (the “Purchaser Indemnity Claims”), whether or not they involve or arise from a Claim by a third party:
(a) the breach, or any breach allegation by a third party that, if true, would constitute a breach, by any Seller as of the date of this Agreement or as of the Closing Date of any representation of its representations or warranty made by the Sellers warranties contained in this AgreementAgreement or any of its representations or warranties or certifications contained in any of the Deeds; provided, however, that all Materiality Qualifications contained in any such representation, warranty or certification shall be disregarded for purposes of determining whether a breach has occurred and the amount of Losses resulting therefrom;
(b) the breach, or any breach allegation by a third party that, if true, would constitute a breach, by any Seller of any covenant of its covenants or agreement by the Sellers agreements contained in this AgreementAgreement or any of the Ancillary Deliveries;
(c) any Seller TaxesRetained Liabilities;
(d) any claim the ownership and operation of the Excluded Assets, whether before, on or amounts due to any Person in connection with after the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow FundDate; and
(e) the failure to comply with any amounts payable by the Company pursuant to Bulk Sales Laws that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit may be applicable to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000transactions contemplated by this Agreement.
Appears in 1 contract
Indemnification by the Sellers. (a) From and after the Closing Date, each of the Sellers shallSellers, subject to the limitations set forth in Section 6.4jointly and severally, severally and not jointlyshall indemnify, save, defend, indemnify defend and hold harmless the Buyer and its Affiliates (including the Company) Buyer, Merger Subs and the Surviving Corporations and each of their respective RepresentativesAffiliates, successors officers, directors, employees, members, agents, successors, transferees and assigns of each of the foregoing (other than Sellers) (collectively, "Buyer Indemnified Group") from and against, and shall compensate and reimburse each of the foregoing for, against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses Losses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any member of the foregoing as a result ofBuyer Indemnified Group based upon, resulting from or arising out of or relating to:
(ai) any the breach of any representation or warranty made by of any of the Sellers or any Company contained in this Agreement;
Agreement or any of the Ancillary Documents, (bii) any the breach of any covenant or agreement by of any of the Sellers or any Company contained in this Agreement;Agreement or any of the Ancillary Documents, (iii) any inaccuracies in the Closing Certificate, and (iv) any claims relating to shares of capital stock issued, and warrants, options or other equity awards granted, by either Company.
(b) The Sellers' indemnification obligations pursuant to Section 8.3(a)(i) shall be effective only after the amount of Losses, in the aggregate, incurred by Buyer Indemnified Group exceeds $100,000 (the "Basket") and if such aggregate liabilities exceed the Basket, the Sellers shall be liable for the dollar value of all of such Losses. The Basket shall not be applicable to any breach of the representations and warranties in Section 3.3 (capitalization; title to shares), 3.4(d) (Indebtedness), 3.4(e) (Working Capital), 3.5(b) (environmental), 3.10 (brokers), 3.17 (taxes) and 3.19 (employee benefits). The maximum amount recoverable under Section 8.3(a)(i) from the Sellers, in the aggregate, shall be an amount equal to the product of (1) the aggregate number of shares of Buyer Common Stock issued or issuable in connection with the Merger, multiplied by (2) the Reference Share Price; provided, however, Losses arising as a result of breaches of the representations and warranties in Section 3.3 (capitalization; title to shares), 3.4(d) (Indebtedness), 3.4(e) (Working Capital), 3.5(b) (environmental), 3.15 (Company Proprietary Assets), 3.17 (taxes) and 3.19 (employee benefits) shall not be limited by this sentence and shall not be included in the calculation of amounts recoverable for purposes of calculating whether such maximum has been reached. Sellers shall make indemnification payments for any breach of the representations and warranties in Section 3.4(e) and 3.10 in cash; provided, however, that any payments made in connection with a breach of the representations and warranties in Section 3.4(e) shall be reduced by the amount actually offset against fees payable pursuant to the Consulting Agreements entered into by and between Sellers and Merger Subs pursuant to Section 6.1(q).
(c) The materiality qualifications included in the representations and warranties set forth in Article III shall have no effect on any Seller Taxes;
(d) any claim or amounts due to any Person provisions in connection with this Section 8.3 concerning the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation indemnities of payments made by the Sellers’ Representative to the Sellers with respect to such representations and warranties, each of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out which is given as though there were no materiality qualification for purposes of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000indemnities.
Appears in 1 contract
Samples: Merger Agreement (Theglobe Com Inc)
Indemnification by the Sellers. From and after the Closing Date, each of the Sellers shall, subject (a) Subject to the limitations set forth in Section 6.4this Article VII, severally each Seller shall, jointly and not jointlyseverally, saveindemnify, protect, defend, indemnify exculpate and hold the Purchaser and their Affiliates and their respective partners, directors, managers, members, shareholders, officers, employees and agents (collectively, the “Purchaser Indemnified Parties”) harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate defend the Purchaser Indemnified Parties from and reimburse each of the foregoing Purchaser Indemnified Parties for, any and all actual losses, damages, costs, expenses, liabilities, deficienciesobligations and claims of any kind (including costs of investigation, claims, interest, awards, judgments, penalties, reasonable attorneys’ fees and other legal costs and expenses (expenses, but not including reasonable and documented attorneys’ feesconsequential, costs and punitive, treble or other out-of-pocket expenses incurred in investigatingsimilar damages, preparing lost profits, special or defending indirect damages, including loss of future revenue, profits or income or loss of business reputation or opportunity related to the foregoingbreach or alleged breach of this Agreement) (hereinafter collectively, the “Purchaser Indemnified Losses”)) which the Purchaser Indemnified Parties shall at any time suffer or incur, incurredor become subject to, sustained as a result of or suffered by in connection with:
(i) Any breach or inaccuracy in any of the foregoing as representations or warranties (other than a result of, arising out of or relating to:
(a) any breach of any representation or warranty Section 2.2(d)) as and when made by the Sellers contained in or pursuant to this Agreement or any Seller Documents; 886463.02-NYCSR06A - MSW
(ii) Any breach of any covenant, agreement or undertaking made by the Sellers under this Agreement;
(biii) any breach of any covenant or agreement Any failure by the Sellers contained in this Agreement;
(c) any Seller Taxes;
(d) to satisfy any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow FundExcluded Liability; and
(eiv) any amounts payable Any breach of Section 2.2(d) as and when made by the Company Sellers in or pursuant to this Agreement.
(b) Except as provided otherwise herein, (i) the aggregate liability of the Sellers for Purchaser Indemnified Losses under Section 7.1(a)(i) and Section 7.1(a)(ii) shall not exceed the amount of Fifteen Million ($15,000,000) in the aggregate, and (ii) the Sellers shall be liable for Purchaser Indemnified Losses under Section 7.1(a)(i) or Section 7.1(a)(ii) only if the aggregate Purchaser Indemnified Losses exceed the amount of Five Hundred Thousand Dollars ($500,000) (the “Seller Basket”), at which point the Sellers shall be liable for all Purchaser Indemnified Losses (i.e., from the first dollar of such Purchaser Indemnified Losses); provided, that certain agreement between Sellers’ obligations hereunder shall be reduced by the Company amount of insurance proceeds, tax benefits, indemnification payments and Xxxxxx Xxxxxxxx Xxxxother third-party payments, dated as of July 15, 2016, actually received in connection with such claims (net of any Tax benefit costs incurred in recovering such amounts). For the avoidance of doubt, the limitations set forth in this Section 7.1(b) shall not apply in the case of any claim made pursuant to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000Section 7.1(a)(iii).
Appears in 1 contract
Indemnification by the Sellers. From and after In the Closing Dateevent that, each during the Indemnification Period there is (i) a breach (or an alleged breach) of any of the Sellers shallrepresentations or warranties made by, subject or any breach of or failure to perform any covenant, agreement or obligation of, the Operating Seller in this Agreement or any other document contemplated hereby, or in any document relating hereto or thereto or contained in any exhibit or Schedule to this Agreement, (ii) any Liabilities, Adverse Consequences or remediation, clean-up or similar obligations or costs under Environmental Laws and relating to the limitations set forth Business and activities or the ownership, operation or lease by the Companies of facilities in Section 6.4respect of any periods prior to the Closing, severally or (iii) any demands, assessments, judgments, costs and not jointlyreasonable legal and other expenses or other Adverse Consequences arising from, saveor in connection with, defendany investigation, indemnify and hold harmless the Buyer and its Affiliates (including the Company) and the respective Representativesaction, successors and assigns of each suit, proceeding or any of the foregoing from and, if there is an applicable survival period pursuant to Section 8.1, then, in each case, provided that the Buyer made a written claim for indemnification and against, and shall compensate and reimburse each provided that Buyer incurs an aggregate of the foregoing for, any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses Two Hundred Dollars (including reasonable and documented attorneys’ fees, costs and other $200.00) in out-of-pocket expenses incurred and costs in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by connection with any of the foregoing as a result of(the “Threshold Amount”), then thereafter the Operating Seller agrees to indemnify the Buyer and its Affiliates from and against the entirety of any Adverse Consequences the Buyer Indemnified Parties may suffer through and after the date of the claim for indemnification resulting from, arising out of or of, relating to:
(a) , in the nature of, or caused by any breach of any representation (or warranty made by the Sellers contained in this Agreement;
(balleged breach) any breach of any covenant or agreement by the Sellers contained in this Agreement;
(c) any Seller Taxes;
(d) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000foregoing.
Appears in 1 contract
Indemnification by the Sellers. From Subject to the provisions of this Article VIII, from and after the Closing DateClosing, the Sellers hereby agree to indemnify, defend and hold harmless the Buyer, the Company, each of the Sellers shallCompany’s Subsidiaries, subject to the limitations set forth in Section 6.4, severally and not jointly, save, defend, indemnify and hold harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing Blockers and their respective officers, directors, managers, stockholders, partners, members, employees, Representatives, Subsidiaries and Affiliates (collectively, “Buyer Indemnified Persons”) from and againstagainst any losses, and shall compensate and reimburse each of the foregoing forliabilities, any and all lossesclaims, obligations, damages, liabilitiesfines, deficienciespenalties, claims, interest, awardsActions, judgments, penaltiessettlements, violations, or reasonable out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees, costs fees and all other reasonable out-of-pocket expenses incurred in investigating, preparing preparing, or defending the foregoingany litigation or proceeding, commenced or threatened) (hereinafter collectively, “LossesBuyer Damages”), incurred, sustained or suffered by any of the foregoing as a result of, ) arising out of or relating toresulting from:
(a) any the breach of any representation or warranty made by the Sellers or the Company contained in this Agreement;; or
(b) any the failure of Company to obtain the consents described in Section 5.6(f). Notwithstanding Section 8.2, in the event of the breach of any covenant a representation or agreement warranty made by a Seller in Article III, only the Sellers contained Seller breaching such representation or warranty shall be liable for such breach, subject to the other limitations set forth in this Agreement;
(c) any Seller Taxes;
(d) any claim or amounts due Article VIII; provided, however, that the Buyer shall be entitled to any Person in connection with seek recourse against the Closing pursuant to any written or oral agreement with Insurance Deductible Escrow Fund for the Company, any Law or otherwise based upon any allocation entire amount of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company Buyer Damages resulting from such payment, up to breach of a maximum aggregate amount of NOK 1,000,000representation or warranty by any individual Seller.
Appears in 1 contract
Samples: Securities Purchase Agreement (Mattress Firm Holding Corp.)
Indemnification by the Sellers. From Subject to the terms and conditions of this Article VII, from and after the Closing DateClosing, each of the Sellers shalland their respective successors and assigns (the “Indemnifying Parties”) will jointly and severally indemnify, subject to the limitations set forth in Section 6.4, severally and not jointly, save, defend, indemnify defend and hold harmless the Buyer Purchaser and its Affiliates (including the Company) and the its respective Representativesofficers, directors, managers, employees, successors and permitted assigns of each of (the foregoing “Indemnified Parties”) from and against, and shall compensate and reimburse each of the foregoing for, against any and all losses, Actions, Orders, Liabilities, damages (including consequential damages), liabilitiesdiminution in value, deficiencies, claimsTaxes, interest, awardspenalties, judgmentsLiens, penaltiesamounts paid in settlement, costs and expenses (including reasonable expenses of investigation and documented court costs and reasonable attorneys’ fees, costs fees and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”expenses), incurred, sustained or suffered by (any of the foregoing as foregoing, a result of“Loss”) paid, suffered or incurred by, or imposed upon, any Indemnified Party to the extent arising in whole or in part out of or relating to:
resulting directly or indirectly from (awhether or not involving a Third Party Claim): (i) any the breach of any representation or warranty made by the Sellers contained Company or any Seller set forth in this Agreement or in any certificate delivered by the Company or any Seller pursuant to this Agreement;
; (bii) any the breach of any covenant or agreement on the part of any Seller or the Company set forth in this Agreement or in any certificate delivered by the Sellers contained in Company or any Seller pursuant to this Agreement;
; (ciii) any Seller Taxes;
(dAction by Person(s) any claim who were holders of equity securities of a Target Company, including options, warrants, convertible debt or amounts due other convertible securities or other rights to any Person in connection with acquire equity securities of a Target Company, prior to the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or arising out of the Indemnity Escrow Fundsale, purchase, termination, cancellation, expiration, redemption or conversion of any such securities; and
or (eiv) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000Fraud Claims.
Appears in 1 contract
Samples: Share Exchange Agreement (Planet Green Holdings Corp.)
Indemnification by the Sellers. From The Sellers (the “Indemnifying Stockholders”) shall, for a period commencing from the Closing Date and ending eighteen (18) months after the Closing Date, each of the Sellers shallseverally, subject to the limitations set forth in Section 6.4, severally and not jointly, save, defendpro rata in such proportion as the number of Shares sold by each Indemnifying Stockholder pursuant to Section 1.1 bears to the total number of Shares sold by all Indemnifying Stockholders pursuant to Section 1.1, indemnify the Buyer in respect of, and hold him harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, any and all debts, obligations losses, damages, liabilities, deficiencies, claimsdamages, fines, fees, penalties, interest obligations, expenses or costs (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise) (including without limitation amounts paid in settlement, interest, awards, judgments, penaltiescourt costs, costs of investigators, fees and expenses (including reasonable and documented of attorneys’ fees, costs accountants, financial advisors and other out-of-pocket experts, and other expenses incurred in investigating, preparing or defending the foregoingof litigation) (hereinafter collectively, “LossesDamages”), incurred, sustained ) incurred or suffered by the Buyer, the Company or any Affiliate thereof resulting from any misrepresentation, inaccuracy or breach of the foregoing as a result warranty by, or failure to perform any covenant or agreement of, arising out of the Company or relating to:
(a) any breach of any representation or warranty made by the Sellers contained in this Agreement;
(b) any breach of any covenant Agreement or agreement by the Sellers contained in this Agreement;
(c) any Seller Taxes;
(d) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000Certificate.
Appears in 1 contract
Indemnification by the Sellers. From and after the Closing Date, each of the Sellers shall, subject Subject to the limitations set forth in Section 6.4this Article IX, the Sellers shall jointly and severally and not jointlyindemnify, save, defend, indemnify defend and hold harmless the Buyer and its Affiliates and their managers, members, officers, directors, agents, attorneys and employees, (including the Companyhereinafter “Buyer Indemnified Parties”) and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, against any and all costs, expenses, liabilities, losses, damages, liabilities, deficienciesamounts paid in settlement, claims, interestinterests, awards, judgments, penalties, costs fines and expenses penalties (including without limitation, reasonable costs of investigation and documented attorneys’ fees, costs defense and other out-of-pocket expenses reasonable attorneys fees and expenses) incurred in investigating, preparing or defending the foregoingsustained (collectively “Damages”) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any of the foregoing Buyer Indemnified Parties as a result of, arising out of or relating to:
(a) any the breach of any representation or warranty made by of the Sellers contained in this Agreement or in any certificate or other instrument furnished by the Sellers to Buyer pursuant to this Agreement;
(b) any the breach of, default under or nonfulfillment of any covenant covenant, obligation or agreement by of the Sellers contained in under this AgreementAgreement or the agreements and instruments contemplated herein;
(c) any Seller Taxesa claim for Damages asserted with respect to the ownership or use of the Excluded Assets;
(d) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow FundExcluded Liability; and
(e) any amounts payable by and all actions, suits, or proceedings, incident to any of the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Iconix Brand Group, Inc.)
Indemnification by the Sellers. (a) From and after the Closing DateClosing, each of the Sellers shall, subject to the limitations set forth in Section 6.4, shall jointly and severally and not jointly, save, defend, indemnify and hold harmless the Buyer EII, Florham and its their directors, officers, employees, agents, stockholders and Affiliates (including collectively, the Company"Purchasing Parties") and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, against any and all lossesLosses finally awarded arising out of, damagesresulting from or in any way related to: (i) a breach by the Sellers or the Company of any of their representations and warranties contained herein, liabilitiesor (ii) the failure to perform or satisfy, deficiencieswhen due, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to:
(a) any breach of any representation or warranty covenants and agreements made by the Sellers contained or the Company in this Agreement;Agreement or in any other document or certificate delivered by the Sellers or the Company at the Closing pursuant hereto.
(b) Notwithstanding the foregoing, the indemnification obligations of the Sellers under Section 7.1(a)(i) above shall not be applicable to Losses incurred by EII Parties which shall be in excess of the Purchase Price (the "Indemnity Cap"); provided, that there shall be no Indemnity Cap with respect to the matters contemplated by Section 7.1(a)(ii) above or for any breach of any covenant the provisions of Section 2.1 (a), (b) or agreement by the Sellers contained in this Agreement;
(c) any Seller Taxes;
(d) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including and such indemnity obligations shall survive indefinitely. Any payment made to any Purchasing Party pursuant to the indemnification obligations under this Section 2.2 or out 7.1 shall constitute a reduction in value of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company Purchase Price paid pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000this Agreement.
Appears in 1 contract
Samples: Interest Purchase Agreement (Florham Consulting Corp)
Indemnification by the Sellers. From Subject to the terms and conditions of this Article VIII, the Sellers hereby agree that, from and after the Closing Date, each of the Sellers shallthey shall severally (based on their Pro-Rata Allocation) indemnify, subject to the limitations set forth in Section 6.4, severally and not jointly, save, defend, indemnify defend and hold harmless Parent, Merger Sub, the Buyer Surviving Company and its Affiliates their respective successors and assigns, and each of their respective directors, officers, employees, managers, agents, stockholders, partners, and members (collectively, the “Parent Indemnified Parties”) from and against any claim, loss, fine, penalty, damage, liability, judgment, Tax, interest (including interest from the Companydate of such losses) and the respective Representativessettlement, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses cost or expense (including reasonable attorneys’ and documented attorneysaccountants’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending expert witness fees and disbursements and the foregoingcost of litigation) (hereinafter collectively, “Losses”), incurred, sustained ) incurred or suffered by any of the foregoing as a result of, such Parent Indemnified Party resulting from or arising out of or relating toof:
(a) any breach the breach, inaccuracy or violation of any representation or warranty made by the Sellers Company or any Seller contained in Article III hereof at and as of this Agreementdate of this Agreement or at and as of the Closing Date with the same force and effect as if made at and as of the Closing Date (other than such representations and warranties that by their terms address matters only as of another specified time, at and as of such specified time);
(b) any the breach of or violation of, or failure to perform, any covenant or agreement by of the Sellers Company or a Seller contained in this Agreement;
(c) any Seller Indemnified Taxes;; and
(d) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000matters described on Schedule 8.02(d).
Appears in 1 contract
Samples: Merger Agreement (Envestnet, Inc.)
Indemnification by the Sellers. From Subject to the terms and conditions of this Article 8, from and after the Closing DateClosing, each of the Sellers shall, subject to the limitations set forth in Section 6.4Seller, severally and not jointlyjointly (in accordance with each Seller’s Pro Rata Share), saveagrees to indemnify, defend, indemnify defend and hold harmless the Buyer and Buyer, its Affiliates (including the CompanyCompany after the Closing) and the their respective Representativesholders of Securities, directors, managers, officers, employees, agents and representatives and their respective successors and assigns of each of (each, a “Buyer Indemnified Party” and collectively, the foregoing “Buyer Indemnified Parties”) from and against, and shall compensate and pay or reimburse each of the foregoing Buyer Indemnified Parties for, any and all losses, damages, liabilities, deficienciesLiabilities, claims, interestProceedings, awardslosses, judgmentscosts, penalties, costs and expenses (including reasonable fees and documented expenses of attorneys’ fees, costs accountants and other out-of-pocket expenses incurred experts, and reasonable costs of investigation and defense of Third Party Claims), payments, settlements, awards, levies, injuries, interest, fines and penalties and Taxes, whether or not involving a Third Party Claim, in investigatingeach case, preparing or defending solely to the foregoing) extent awarded to a prevailing party by a court of competent jurisdiction (hereinafter individually and collectively, “Losses”)) which any Buyer Indemnified Party suffers, incurredsustains, sustained incurs or suffered by any of the foregoing as a result ofbecomes subject to, arising out of of, relating to or relating tootherwise by virtue of, directly or indirectly:
(a) any inaccuracy in, or breach of, any of the Fundamental Representations of the Company or such Seller, as if such Fundamental Representation was made on and as of the date hereof and on and as of the Closing Date (except to the extent expressly relating to a specific date, the inaccuracy in or breach of any representation or warranty made by the Sellers contained in this Agreementwhich will be determined with reference to such date);
(b) any breach of, or the failure of such Seller to perform or comply with any covenant of its covenants or agreement by the Sellers obligations contained in this Agreement, any Related Agreement or any certificate or instrument delivered pursuant to this Agreement;
(c) any Seller Taxesbreach of, or the failure of the Representative to perform or comply with any of the Representative’s covenants or obligations contained in this Agreement, any Related Agreement or any certificate or instrument delivered pursuant to this Agreement;
(d) any claim Company Indebtedness outstanding immediately prior to the Closing that is not paid at the Closing or amounts due to any Person taken into account in connection with the Closing pursuant to any written or oral agreement a purchase price adjustment in accordance with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and1.4;
(e) any amounts payable inaccuracy contained in the Distribution Schedule; or
(f) the matters described on Schedule 8.2(f). For all purposes of this Section 8.2 including in the determination of breach and calculation of the amount of Losses arising out of, relating to or resulting from a breach or inaccuracy, or allegation by the Company any third party which, if true, would be a breach or inaccuracy, of a representation or warranty, contained in or pursuant to this Agreement, the parties agree that certain agreement between the Company all materiality qualifiers will be disregarded and Xxxxxx Xxxxxxxx Xxxxeach such representation or warranty will be read and interpreted without regard to any materiality qualifier; provided, dated as of July 15however, 2016, net such qualification shall not be read out of any Tax benefit reference to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000defined terms “Material Contract” and “Material Adverse Effect.”
Appears in 1 contract
Indemnification by the Sellers. From and after the Closing Date, each of the The Sellers shall, subject agree to the limitations set forth in Section 6.4, severally and not jointly, save, defend, indemnify and hold harmless the Buyer and its Affiliates subsidiaries and affiliates (including the CompanyCompany following Closing) and the respective Representatives, successors and assigns of each of their respective shareholders, officers, directors, employees, subsidiaries and affiliates (collectively the foregoing from and against, and shall compensate and reimburse each of the foregoing for, any and "Buyer Indemnified Parties") against all losses, liabilities, obligations, demands, judgments, settlements, damages (but excluding any claims for consequential damages, liabilitieslost profits or punitive damages suffered directly by Buyer as opposed to consequential damages, deficiencieslost profits or punitive damages paid by Buyer to a third party), claimsTaxes, or expenses (including, but not limited to, interest, awards, judgments, penalties, costs and expenses (including reasonable and documented attorneys’ fees, and reasonable professional fees and expenses) and against all claims in respect thereof (including, without limitation, amounts paid in settlement and costs and other outof investigation) or diminution in value, whether or not involving a third-of-pocket expenses incurred in investigatingparty claim (herein referred to collectively as "Buyer's Losses" or individually as a "Buyer's Loss") to which the Buyer Indemnified Parties may become subject to or which they may suffer or incur, preparing directly or defending the foregoing) (hereinafter collectivelyindirectly, “Losses”), incurred, sustained or suffered by any of the foregoing as a result of, arising out of from or relating toin connection with:
(a) any untrue representation of or breach of any representation or warranty made warranty, by the Sellers contained in any part of this Agreement;
(b) any the breach of or nonfulfillment of any covenant covenant, agreement or agreement by undertaking of the Sellers contained in this Agreement;
(c) any Seller Taxes;
obligation for Taxes of the Sellers or the Company for any period (dor portion thereof) any claim or amounts due to any Person in connection with the Closing pursuant to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative prior to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000.Effective Date;
Appears in 1 contract
Samples: Stock Purchase Agreement (Clarion Technologies Inc/De/)
Indemnification by the Sellers. From Subject to the other provisions of this Article VIII, and notwithstanding any investigation at any time made by the Buyer or on behalf of the Buyer, from and after the Closing Date, each of the Sellers shallSellers, subject to the limitations set forth in Section 6.4jointly and severally, severally and not jointly, save, defend, will indemnify and hold harmless the Buyer Buyer, its affiliates and its Affiliates respective employees, representatives, officers, directors and agents (including the Company"Buyer Parties") and the respective Representatives, successors and assigns of each of the foregoing harmless from and against, and shall compensate and reimburse each of the foregoing for, against any and all monetary losses, claims, damages, liabilitiescosts, deficienciesfees, claims, interest, awards, judgmentsfines, penalties, obligations, payments and liabilities, together with all reasonable costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by connection with any of the foregoing as a result of, ("Damages") suffered by any Buyer Party arising out of or relating toof:
(a) any the breach of any representation or warranty made by the Sellers or the Companies contained in this Agreement (including any applicable disclosures in the Disclosure Schedule) or any certificate delivered by the Sellers or the Companies at the Closing pursuant to this Agreement;
(b) the failure of the Sellers or the Companies to perform any breach of any covenant covenant, agreement or agreement obligation by the Sellers or the Companies contained in this Agreement;; and
(c) any Seller Taxes;
(d) environmental liability or claim relating to or arising from any claim fact, circumstance or amounts due event occuring or alleged to any Person in connection with have occured prior to the Closing pursuant with respect to any written or oral agreement with the Company, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting arising from such payment, up to a maximum aggregate amount of NOK 1,000,000.00 Xxxxxxxxxx Xxxxxxx,
Appears in 1 contract
Indemnification by the Sellers. From and after the Closing DateIn addition to any rights Buyer may otherwise have at law or in equity, each of the Sellers shall, subject to the limitations set forth in Section 6.4, severally jointly and not jointly, saveseverally, defend, indemnify and hold harmless the Buyer Company, Buyer, Parent and its their respective managers, officers, directors, employees, agents, consultants, representatives, advisers, equityholders, partners, Affiliates (including the Company) and the respective Representatives, successors and assigns of each of (collectively, the foregoing “Buyer Indemnified Parties”) from and against, against and shall compensate and pay or reimburse each of the foregoing for, Buyer Indemnified Parties for any and all lossesLosses resulting from, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating to, or arising directly or indirectly out of:
(a) any inaccuracy in or breach of any representation or warranty made by the Sellers contained either Seller in this AgreementAgreement or in any Transaction Document delivered by either Seller;
(b) any breach of any covenant or agreement by the Sellers contained obligation of either Seller in this AgreementAgreement or in any Transaction Document delivered by either Seller;
(c) any Seller TaxesIndebtedness or Selling Expenses, to the extent not taken into account in the determination of the Purchase Price pursuant to Section 1.2;
(d) any claim or amounts due except to any Person the extent included in connection with the Closing pursuant to any written or oral agreement with the CompanyIndebtedness, any Law or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers Taxes of the amounts to be paid under this Agreement, Company for any Pre-Closing Tax Period (including pursuant to Section 2.2 or out the portion of the Indemnity Escrow Fund; andany Straddle Period that constitutes a Pre-Closing Tax Period);
(e) related to, arising out of or caused by any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as withdrawal liability under Title IV of July 15, 2016, net of any Tax benefit to the Company ERISA resulting from such paymentthe transactions contemplated by this Agreement; and/or
(f) related to, up to a maximum aggregate amount arising out of NOK 1,000,000or caused by any item or matter set forth on Schedule 9.2(f).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (CRAWFORD UNITED Corp)
Indemnification by the Sellers. From and after Upon the Closing Date, each of the Sellers shall, Merger and subject to the limitations set forth in Section 6.47.3 below, severally and not jointly, save, defend, indemnify and hold harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing from Sellers, on a basis providing for equal culpability, agrees to indemnify Acquiror, its officers, directors and against, Affiliates and shall compensate the Company (the “Acquiror Indemnitees”) and reimburse each of the foregoing for, hold them harmless against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses Loss incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered by any of the foregoing as a result ofAcquiror Indemnitee resulting from, arising out of relating to or relating toconstituting:
(a) any breach the breach, as of the date of this Agreement or as of the Closing Date, by the Company of any representation or warranty made by the Sellers Company contained in Article IV of this Agreement or any agreement or instrument furnished by the Company to the Acquiror pursuant to this Agreement;
(b) any breach the breach, as of the date of this Agreement or as of the Closing Date, by the Company of any covenant or agreement made by the Sellers Company contained in this Agreement or any agreement or instrument furnished by the Company to the Acquiror pursuant to this Agreement;
(c) any Seller Taxesfailure of any holder of Company Capital Stock to have good, valid and marketable title to the issued and outstanding shares of Company Capital Stock issued in the name of such holder, free and clear of all Encumbrances;
(d) any claim or amounts due an amount equal to any Person the difference between (i) four (4) times the revenue for the month ended September 30, 2005 under each of the Contracts listed in connection with Section 7.1(d) of the Company Disclosure Schedule which is terminated within four (4) months after the Closing pursuant to any written or oral agreement with Date minus (ii) the Company, any Law or otherwise based upon any allocation of payments made actual revenue received by the Sellers’ Representative Acquiror under each such contract, in each case unless such termination occurs after the receipt of a consent from such contract counterparty to the Sellers of the amounts to be paid under transactions contemplated by this Agreement, including pursuant to Section 2.2 or out of the Indemnity Escrow Fund; andor
(e) any amounts payable by the matters set forth in Item 3 of Section 4.10 of the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000Disclosure Schedule.
Appears in 1 contract
Indemnification by the Sellers. From (a) The Purchaser and after the Closing Dateits Affiliates, officers, directors, employees, agents, successors and assigns (each of the Sellers shall, subject to the limitations set forth in Section 6.4a “Purchaser Indemnified Party”) shall be indemnified and held harmless by each Seller, severally and not jointly, save, defend, indemnify for and hold harmless the Buyer and its Affiliates (including the Company) and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of the foregoing for, against any and all Liabilities, losses, diminution in value, damages, liabilitiesclaims, deficiencies, claimsreasonable out-of-pocket costs and expenses, interest, awards, judgments, penalties, costs judgments and expenses penalties (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses consultants’ fees and expenses) actually suffered or incurred in investigating, preparing by them (including as a result of any Action brought or defending the foregoingotherwise initiated by any of them) (hereinafter collectively, a “LossesLoss”), incurred, sustained or suffered by any of the foregoing as a result of, arising out of or relating toresulting from:
(ai) any breach of any representation or warranty made by such Seller in Article III of this Agreement or in any certificate or instrument delivered pursuant to this Agreement to the Sellers contained extent relating to Article III of this Agreement (it being understood that such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein); or
(ii) any breach by such Seller of any covenant or agreement made individually by such Seller in this Agreement;.
(b) The Purchaser Indemnified Parties shall be indemnified and held harmless by Xx. Xxxxxxxx for and against any and all Losses actually suffered or incurred by them, arising out of or resulting from:
(i) the breach of any representation or warranty made by the Sellers or the Company contained in Article IV of this Agreement (other than Section 4.07(e)) or in any certificate or instrument delivered pursuant to this Agreement to the extent relating to Article IV (other than Section 4.07(e)) of this Agreement (it being understood that, except for the representations and warranties set forth in Sections 4.07(b), 4.07(c), 4.09, 4.10, 4.12(b), 4.15(a), 4.17(a), 4.18(d)(iii), 4.21(a) and 4.26, the second sentence of Section 4.11 and the defined term “Material Contracts” in Section 4.15(b), such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein and being further understood that to the extent a breach of representations or warranties dealing with Tax matters contained in Sections 3.05, 4.07, 4.08, 4.10, 4.11, 4.12, 4.21 and 4.25 also gives rise to indemnification under Section 8.01(a), the Sellers’ obligation to indemnify for such breach shall be governed solely by Article VIII and the provisions of this Agreement that apply to Article VIII);
(ii) the breach of any covenant or agreement by the Sellers or the Company contained in this Agreement or the Escrow Agreement;
(ciii) any Seller Taxes;
damages incurred by the Purchaser, the Company or any Subsidiary as a result of a breach of any Company Lease due to the failure to obtain (di) a Lease Consent with respect to such Company Lease or (ii) any claim or amounts due to any Person consent required under a Company Lease set forth in Section 10.02 of the Disclosure Schedule in connection with the Closing pursuant consummation of the transactions contemplated hereby, in each case prior to Closing; or
(iv) the breach of any written representation or oral agreement with the Company, any Law or otherwise based upon any allocation of payments warranty made by the Sellers or the Company contained in Section 4.07(e) of this Agreement or in any certificate or instrument delivered pursuant to this Agreement to the extent relating to Section 4.07(e) of this Agreement To the extent that the Sellers’ Representative undertakings set forth in this Section 10.02 may be unenforceable, the Sellers shall contribute the maximum amount that they are permitted to contribute under applicable Law to the Sellers payment and satisfaction of all Losses incurred by the amounts Purchaser Indemnified Parties otherwise subject to be paid under this Agreement, including indemnification pursuant to this Section 2.2 or out of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,00010.02.
Appears in 1 contract
Indemnification by the Sellers. From and After the Closing, the Purchasers, their Affiliates (including, after the Closing DateClosing, each of the Sellers shall, subject to the limitations set forth in Section 6.4, severally and not jointly, save, defend, indemnify and hold harmless the Buyer and its Affiliates (including the Company) ), and the their respective Representativesofficers, managers, directors, shareholders, employees, agents, successors and assigns of (each a “Purchaser Indemnified Party” and collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless by each of the foregoing from Sellers, jointly and againstseverally, and shall compensate and reimburse each of the foregoing for, for any and all Liabilities, losses, damagesdamages of any kind, liabilitiesclaims, costs, expenses, fines, fees, deficiencies, claims, interest, awards, judgments, penaltiesamounts paid in settlement and penalties (including, costs without limitation, attorneys’, consultants’ and experts’ fees and expenses (including reasonable and documented attorneys’ fees, costs and other out-of-pocket expenses costs of defending, investigating or settling claims) actually suffered or incurred by them (including, without limitation, in investigating, preparing connection with any action brought or defending the foregoing) (hereinafter collectively, “Losses”), incurred, sustained or suffered otherwise initiated by any of the foregoing as a result ofthem) (hereinafter, “Loss(es)”), arising out of or relating toresulting from:
(ai) any breach of the Seller’s representations and warranties hereunder or any representation or warranty made by material misrepresentations in any instrument delivered pursuant to this Agreement at the Sellers contained in this AgreementClosing;
(bii) any breach of any covenant or agreement required to be performed prior to the Closing by the Company or any covenant or agreement made by any of the Sellers, in each case in this Agreement or in any other instrument delivered pursuant to this Agreement at the Closing;
(iii) breach of contract or other claims made by any party alleging to have had a contractual or other right to acquire Company Equity Interests or any of the Acquired Assets;
(iv) any Company Expenses required to be paid by the Sellers contained in this Agreementpursuant to Section 5.3;
(cv) any Seller Taxesthe Remaining Litigation;
(dvi) any claim or amounts due and all civil (including contractual), commercial, Tax (other than income tax), labor and employment, legal and/or administrative liabilities of the Company (including any liabilities with any Affiliates of the Sellers prior to any Person in connection with the Closing pursuant Date), and of any of its predecessors to the extent that they arise, are caused or are incurred prior to the Closing Date; or
(vii) the diminution, impairment or reduction of the amount of the Tax Credits to an amount less than the Acquisition Consideration, in which case the extent of any written or oral agreement with such Losses shall be limited to the Companydeficiency below the Acquisition Consideration; provided, however, that if such Losses result from knowing fraud on the part of any Seller, any Law such Seller shall fully indemnify the Purchasers for the entire diminution, impairment or otherwise based upon any allocation of payments made by the Sellers’ Representative to the Sellers reduction of the amounts to be paid under this Agreement, including pursuant to Section 2.2 or out amount of the Indemnity Escrow Fund; and
(e) any amounts payable by the Company pursuant to that certain agreement between the Company and Xxxxxx Xxxxxxxx Xxxx, dated as of July 15, 2016, net of any Tax benefit to the Company resulting from such payment, up to a maximum aggregate amount of NOK 1,000,000Credits.
Appears in 1 contract
Samples: Equity Purchase Agreement (America Online Latin America Inc)
