Indemnification by the Sellers. (a) Subject to the other provisions of this Article VIII, including Section 8.5 below, the Sellers and their heirs, successors, and assigns (collectively, the “Seller Indemnifying Parties”) will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees, costs, and other out-of-pocket expenses incurred in investigating, preparing, or defending the foregoing) (hereinafter collectively, “Losses”) to the extent arising out of or resulting from: (i) any breach of any representation or warranty made by or on behalf of the Company, the Sellers, or Representative contained in this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding representations and warranties made in Section 3.15, the breach of which results in a payment of additional Taxes; (ii) any breach of any covenant or agreement by the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives Closing; (iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties); (iv) any and all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue. (b) Anything in this Agreement to the contrary notwithstanding: (i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and (ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject to the other provisions of this Article VIII11, including Section 8.5 belowfrom and after Closing, the Sellers and their heirs, successorsshall severally, and assigns not jointly or jointly and severally, reimburse, indemnify and hold the Purchaser and its shareholders, Representatives and Affiliates (the “Purchaser Indemnified Parties”) harmless from and against any charges, claims, damages, Liabilities, losses, Taxes and expenses (including reasonable attorney’s fees incurred in defending any claim by a third person, and amounts paid in settlement of any claim or suit), fines, penalties and interest (collectively, the “Seller Indemnifying Parties”) will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees, costs, and other out-of-pocket expenses incurred in investigating, preparing, Loss” or defending the foregoing) (hereinafter collectively, “Losses”) which are sustained or suffered by the Purchaser Indemnified Parties to the extent caused by or arising out of or resulting from:
(i) any a breach of any representation or warranty made by the Acquired Companies or on behalf of the Company, the Sellers, or Representative contained Sellers in this Agreement or Agreement; provided, that any Ancillary Agreements or any certificate delivered pursuant hereto, excluding representations and warranties made in Section 3.15, the Losses arising from a breach of which results in a payment of additional Taxesany Tax Rep shall be governed by the Indemnified Taxes Indemnity;
(ii) a breach by the Acquired Companies or the Sellers of any covenant or agreement made by the Acquired Companies or the Sellers in this Agreement; provided, that Losses arising from a breach of any covenant or agreement contained in Section 6.1 or Section 8.4 shall be governed by the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives ClosingIndemnified Taxes Indemnity;
(iii) any obligations amounts of Closing Indebtedness or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (except Transaction Expenses, solely to the extent that any Buyer Indemnified Party collects reimbursements such amount is not deducted for such losses from insurance proceeds purposes of determining the payment of the Estimated Purchase Price to the Sellers at the Closing pursuant to Section 2.3 or from indemnification payments received from one or more third parties)included in the calculation of Closing Date Working Capital;
(iv) any and all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if Taxes (the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything indemnity in this Agreement to clause (iv) shall be the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose“Indemnified Taxes Indemnity”); and
(iiv) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter the LC Options (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters“LC Options Indemnity”), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II.
Appears in 1 contract
Samples: Securities Purchase Agreement (TreeHouse Foods, Inc.)
Indemnification by the Sellers. (a) Subject From and after the Closing, subject to the other provisions of this Article VIII, including Section 8.5 belowVII, the Sellers shall jointly and their heirsseverally indemnify Apollo and its officers, successorsdirectors, employees and assigns Affiliates (collectively, the “Seller Indemnifying Indemnified Apollo Parties”) will save, defend, indemnify), and hold each of them harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against against, any and all lossesactions, suits, proceedings, demands, assessments, judgments, claims, liabilities, losses (including losses arising from the diminution of value), costs, damages, liabilitiesexpenses, deficiencies, claims, interest, awards, judgments, interest or penalties, costs, and expenses (including reasonable attorneys’ fees, costsexpenses and disbursements, and other out-of-pocket expenses incurred in investigating, preparing, whether or defending the foregoing) not resulting from a Third Party Claim (hereinafter collectively, “LossesDamages”) to the extent ), suffered, paid or incurred by such Indemnified Apollo Party arising out of of, resulting from or resulting from:
caused by: (i) any breach of any of the representations and warranties (read without giving effect to any qualifications regarding materiality, Material Adverse Effect or similar qualifications other than with respect to the representations in Section 2.6 and Section 2.9(a)) made by the Sellers in Article II, or in any certificate or other document delivered in connection with this Agreement, as if such representation or warranty was made by or on behalf as of the Company, Closing (except in the Sellers, or Representative contained in this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding case of representations and warranties made which by their terms speak only as of a specific date or dates, in Section 3.15which case as of such date or dates), the breach of which results in a payment of additional Taxes;
(ii) any breach by a Seller of any covenant or agreement by the Sellers or Representative of such Seller contained in this Agreement or any Ancillary Agreement that survives Closing;
Agreement, (iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by matter described in Section 7.1(a)(iii) of the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties);
Seller Disclosure Letter, (iv) the Excluded RCS Business or any other businesses operated or conducted by the Sellers and all reasonable attorneys’ fees and expenses and costs its Subsidiaries (other than the Subject Companies), (v) any matter described in Section 7.1(a)(v) of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable Disclosure Letter, (vi) the Pre-Closing Restructuring Actions, (vii) any FINRA Burdensome Condition (provided, however, that the obligation to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach FINRA Burdensome Condition shall not apply if Apollo has exercised its right under the second sentence of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other mattersSection 5.2(i)), or and (Cviii) if such matter was included in determining any New Disclosure that would entitle Apollo to terminate the Adjusted Purchase Price Agreement pursuant to Article IISection 4.5.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Apollo Global Management LLC)
Indemnification by the Sellers. Each of the Sellers and the Estate will jointly and severally indemnify and hold harmless each Buyer, their respective Affiliates, and each of the respective officers, directors, employees, consultants, agents and representatives of each of the foregoing (together, "Buyer Indemnities"):
(a) Subject with respect to any Claim (as hereinafter defined) which the Buyer Indemnities, may incur or suffer as 122 129 a result of any breach or inaccuracy of any of the representations or warranties in this Agreement as of the Escrow Closing Date or in any certificate, schedule, exhibit or other document required to be delivered under this Agreement or the Estate Guaranty, or any failure to perform or comply with any covenant or agreement of either of the Sellers set forth herein or of the Estate pursuant to the other provisions Estate Guaranty;
(b) with respect to any Claim arising out of this Article VIII, including Section 8.5 below, the failure of either of the Sellers and their heirs, successors, and assigns to comply with the bulk transfer or bulk sales laws of any jurisdiction in accordance with Article 12;
(collectively, the “Seller Indemnifying Parties”c) will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against with respect to any and all claims, demands, causes of action, proceedings, losses, damages, expenses (including without limitation, reasonable attorneys' fees and expenses), liabilities, fines, excise taxes, penalties, deficiencies, claims, interest, awards, judgments, penalties, judgments or costs, including, without limitation, reasonable accountants' and attorneys' fees, court costs, amounts paid in settlement and expenses of investigation (collectively, "Claims") at any time asserted against or incurred by the Buyer Indemnities insofar as such Claims arise out of (i) any Permitted Encumbrance, (ii) the Sony Agreement (including reasonable attorneys’ fees, costs, and other out-of-pocket expenses incurred in investigating, preparing, or defending but not limited to the foregoingSony Lien) (hereinafter collectively, “Losses”) except to the extent arising out of or resulting from:
(i) any breach of any representation or warranty made by or the Company's failure to comply with the restrictions on behalf and obligations of the CompanyCompany set forth on Schedule 7.14, the Sellers, 123 000 (xxx) xxx claim by any union or Representative contained in this Agreement guild or any Ancillary Agreements other Person for residuals or any certificate delivered pursuant hereto, excluding representations and warranties made in Section 3.15, the breach of which results in a payment of additional Taxes;
(ii) any breach of any covenant or agreement by the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives Closing;
(iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date other Third Party Costs (except to the extent that assumed or to be assumed by AAG pursuant to Section 9.4(b) or relating to Programs (other than "The Price Is Right" during the term of the Network Production Agreement) produced or delivered after the Final Closing), (iv) any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds liability or from indemnification payments obligation of either of the Sellers to repay advances or to refund any amount received from one by Sellers prior to the Closing or more third parties(v) any liability or obligation of either of the Sellers other than a liability or obligation which is included in the Assumed Liabilities;
(d) in the case of the Partnership, with respect to any Claim in connection with items described on Schedule 4.13 hereto or any suit, claim, action, proceeding or investigation brought prior to the date hereof (whether or not now pending);
(ive) other than with respect to certain obligations expressly assumed or to be assumed by AAG as set forth in Section 9.4(b), (i) with respect to any Claims arising from or in connection with the maintenance or contribution by either Seller or any predecessors, constituent partners, joint venturers, Related Persons or Affiliates of either Seller, at any time, of or to any employee benefit plan (as defined in Section 3(3) of ERISA), including, without limitation, any liability to the Pension Benefit Guaranty Corporation, any plan subject to Title IV 124 131 of ERISA, employees or former employees (or their beneficiaries) of either Seller (together with their respective predecessors, constituent partners, joint venturers, Related Persons and all reasonable attorneys’ fees Affiliates), guilds or unions arising out of or relating to the maintenance, administration, contribution or termination or any other reason of or with respect to any such plans, the trusts related to such plans, or employment with either Seller (together with their respective predecessors, constituent partners, joint venturers, Related Persons and expenses Affiliates), and costs (ii) with respect to any Claims made by or with respect to employees, consultants or contractors or former employees, consultants or contractors (including without limitation performers, actors, musicians, hosts, writers, directors, producers or other persons employed in the Exploitation of investigation Library Programs or other Library Rights) of either Seller (together with their respective predecessors, constituent partners, joint venturers, Related Persons and litigation incurred Affiliates) relating to or arising out of employment with or engagement by a Buyer Indemnified Party in enforcing its rights under this Section but only if the either Seller Indemnifying Parties are ultimately liable (together with their respective predecessors, constituent partners, joint venturers, Related Persons and Affiliates), including without limitation any Claims for severance pay, welfare and fringe benefits or for wrongful discharge by any employee, consultant or contractor or former employee, consultant or contractor of either Seller (together with their predecessors, constituent 125 132 partners, joint venturers, Related Persons and Affiliates) relating to indemnify the Buyer Indemnified Parties for the Loss at issueor arising out of employment with or engagement by either Seller (together with their respective predecessors, constituent partners, joint venturers, Related Persons and Affiliates) or which relates to any unpaid wages, salaries, commissions, bonuses, vacation pay, retiree medical payments or any other compensation or benefits, or any Claims made by any union or guild or pursuant to any collective bargaining agreement.
(bf) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) Taxes for which there is a reserve or accrual intended Sellers are liable pursuant to cover such matter in Sections 7.11 and 7.17 hereof. Notwithstanding the foregoing, on and after the Final Closing Balance Sheet (but only up the Sellers shall not be required to make any indemnification payments pursuant to the terms of clause (a) of this Section 13.1 (x) until the aggregate Claims with respect to which the Buyer Indemnities are entitled to indemnification thereunder shall have exceeded $250,000 (the "Threshold Amount"), but then shall be required to pay the full amount of such reserve or accrual not otherwise relieved by other matters), Claims including the Threshold Amount; or (Cy) with respect to any Claim of which the Sellers shall not have received notice prior to the expiration and termination of the representation, warranty, covenant or agreement the breach of which forms the basis for indemnification hereunder (it being understood that such notice shall be adequate if it specifies the event or circumstance which is reasonably anticipated to cause an 126 133 indemnifiable loss, but without specifying the actual amount of such loss if such matter was included amount cannot at the time be finally determined); provided, however, that the limitations set forth in determining this Section shall not apply to any Claim against any Seller that is based upon fraud or willful or deliberate wrongdoing by any Seller or its Affiliates. The foregoing indemnity obligations and the Adjusted Purchase Price other obligations of Sellers, the Estate or their Related Persons pursuant hereto or the Related Agreements shall be supported by an irrevocable letter of credit (the "Seller Letter of Credit") from The Bank of New York or another commercial bank reasonably acceptable to Buyers in favor of the Buyer Indemnities in the form attached hereto as Schedule 13.1 and to be delivered on the Escrow Closing Date in escrow pursuant to Article IIthe Escrow Agreement. The Seller Letter of Credit shall be in continuous effect for five years after the Final Closing (and thereafter, so long as all claims in such period have not been resolved unless the Seller Letter of Credit can be drawn upon with respect to such claims) and shall be issued on the Escrow Closing Date in an amount of $5,000,000.
(g) with respect to any Claim resulting from any alleged or actual violation, breach, default, termination or acceleration under the Sony Agreement as a result of the failure of the Company, AAG, IPG Sub or Producer to obtain any agreement as to television exclusivity from the CBS Network in connection with any 127 134 extension or renewal of "The Price Is Right" after the 1995/1996 broadcast season.
Appears in 1 contract
Samples: Asset Purchase Agreement (All American Communications Inc)
Indemnification by the Sellers. The Sellers, jointly and severally, shall indemnify and hold Buyer and (awithout duplication) Subject to the other provisions of this Article VIIIits officers, including Section 8.5 belowdirectors, the Sellers and their heirsequity holders, successorsmembers, managers, employees, agents, and assigns representatives (collectively, the “Seller Indemnifying Parties”) will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “"Buyer Indemnified Parties”") harmless from and against any and all liabilities, losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penaltiesfines, costscosts and expenses, and expenses (including reasonable attorneys’ feescounsel fees ("Losses"), costsincurred or sustained by any Buyer Indemnified Parties that result from, and other out-of-pocket expenses incurred in investigating, preparingrelate to, or defending the foregoing) (hereinafter collectively, “Losses”) to the extent arising arise out of or resulting fromof:
(iA) any breach of any representation or warranty made by or nonfulfillment of any agreement or covenant on behalf the part of the Company, the Sellers, or Representative contained in any Seller under this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding representations and warranties made in Section 3.15, the breach of which results in a payment of additional TaxesAgreement;
(iiB) any breach action, suit, claim or proceeding incident to any of any covenant the foregoing or agreement by to the Sellers or Representative contained in enforcement of this Agreement or any Ancillary Agreement that survives ClosingArticle VI;
(iiiC) any obligations or liabilities relating to or arising from for Taxes, including any product liability or warranty claims based on products or services sold disallowance for payroll expenses, owed by the Company on or after the Closing Date with respect to any Subsidiary taxable period ending on or prior to the Closing Date (except treating any Taxable period that begins before and ends after the Closing Date as if such Taxable period had ended on the Closing Date), to the extent that any Buyer Indemnified Party collects reimbursements such liabilities have not been accounted for such losses from insurance proceeds or from indemnification payments received from one or more third parties)pursuant to Section 1.6;
(ivD) any and all reasonable attorneys’ fees and expenses and costs failure of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable Company to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement obtain or maintain any required Licenses or to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for make any breach of a representation as to itself required report or a covenant or obligation to be performed by it under this Agreement or filing with any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purposeGovernmental Authority; and
(iiE) in no event will any Seller Indemnifying Parties have Losses arising out of or related to any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statementsclaim which may be brought by, or (B) for which there is a reserve on behalf of, Xxxxx Xxxxx or accrual intended his successors, assigns and heirs against the Company or any Buyer Indemnified Party, including any claims made by any Governmental Authority relating to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IIXxxxx Xxxxx.
Appears in 1 contract
Samples: Stock Purchase Agreement (Asset Acceptance Capital Corp)
Indemnification by the Sellers. (a) Subject to Following the other provisions of this Article VIII, including Section 8.5 belowClosing, the Sellers and their heirsSellers, successors, and assigns (collectively, the “Seller Indemnifying Parties”) will save, defend, indemnify, shall indemnify and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) Parties from and against any and all losses, liabilities, damages, liabilitiespenalties, deficienciesobligations, claimsawards, fines, interest, awardsclaims (whether or not involving Third-Party Claims (as defined herein)), judgmentsassessments, penalties, costs, costs and expenses (to the extent such expenses are actually and reasonably incurred), (including reasonable attorneys’ feeslegal, costs, accounting and other out-of-pocket expenses incurred in investigating, preparing, or defending the foregoingprofessional fees) (hereinafter collectively, “LossesDamages”) to the extent ), without duplication, arising out of or resulting from:
(ia) any breach of any representation or and warranty made by or on behalf of the Company, the Sellers, or Representative contained Sellers in this Agreement or any Ancillary Agreements or in any certificate delivered pursuant heretoto Sections 3.2(a), excluding and (b), provided, however, that any indemnification for any breach of any representations and warranties made in Section 3.15regarding Taxes shall be limited, the breach of which results in a payment of additional with respect to Taxes, to Pre-Closing Taxes;
(iib) any failure to comply with any covenant made by the Sellers in this Agreement;
(c) any breach of any covenant or agreement by the Sellers or Representative contained in this Agreement or Section 7.6, including, for the avoidance of doubt, all liability for any Ancillary Agreement unpaid Transfer Taxes that survives Closing;
(iii) any obligations or liabilities relating are the responsibility of Sellers pursuant to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third partiesSection 7.6(f);
(ivd) any and Transaction Expenses (to the extent not deducted from the Purchase Price pursuant to Section 2.2);
(e) any liabilities, including Taxes, fees or expenses in connection with, or related to, the Restructuring Transaction;
(f) all reasonable attorneys’ fees and expenses and costs liability for Pre-Closing Taxes, including for the avoidance of investigation and litigation incurred doubt all liability for Taxes attributable to a debt capitalization in a Pre-Closing Tax Period; provided, however, that any Taxes attributable to the elimination of Intercompany Indebtedness described in Section 7.6(j) that are the obligation of the Buyers pursuant to Section 7.6(j) shall not be covered by a Buyer Indemnified Party in enforcing its rights under this Section but only if 10.1(f);
(g) any Taxes, liabilities, fees or expenses to the Seller Indemnifying Parties are ultimately liable extent related to indemnify the Buyer Indemnified Parties Diagnostics Business, including for the Loss at issue.
(b) Anything in this Agreement avoidance of doubt any liabilities associated with any Contracts transferred or assumed by the Diagnostic Entities pursuant to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purposeSection 6.1; and
(iih) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IIHealthpoint Agreement.
Appears in 1 contract
Samples: Share Purchase Agreement (Centaur Guernsey L.P. Inc.)
Indemnification by the Sellers. (a) Subject From and after the Closing, subject to the other provisions of this Article VIII, including Section 8.5 belowVII, the Sellers shall jointly and their heirsseverally indemnify Apollo and its officers, successorsdirectors, employees and assigns Affiliates (collectively, the “Seller Indemnifying Indemnified Apollo Parties”) will save, defend, indemnify), and hold each of them harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against against, any and all lossesactions, suits, proceedings, demands, assessments, judgments, claims, liabilities, losses (including losses arising from the diminution of value), costs, damages, liabilitiesexpenses, deficiencies, claims, interest, awards, judgments, interest or penalties, costs, and expenses (including reasonable attorneys’ fees, costsexpenses and disbursements, and other out-of-pocket expenses incurred in investigating, preparing, whether or defending the foregoing) not resulting from a Third Party Claim (hereinafter collectively, “LossesDamages”) to the extent ), suffered, paid or incurred by such Indemnified Apollo Party arising out of of, resulting from or resulting from:
caused by: (i) any breach of any of the representations and warranties (read without giving effect to any qualifications regarding materiality, Material Adverse Effect or similar qualifications other than with respect to the representations in Section 2.6 and Section 2.9(a)) made by the Sellers in Article II, or in any certificate or other document delivered in connection with this Agreement, as if such representation or warranty was made by or on behalf as of the Company, Closing (except in the Sellers, or Representative contained in this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding case of representations and warranties made which by their terms speak only as of a specific date or dates, in Section 3.15which case as of such date or dates), the breach of which results in a payment of additional Taxes;
(ii) any breach by a Seller of any covenant or agreement by the Sellers or Representative of such Seller contained in this Agreement or any Ancillary Agreement that survives Closing;
Agreement, (iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by matter described in Section 7.1(a)(iii) of the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties);
Seller Disclosure Letter, (iv) the Excluded RCS Business or any other businesses operated or conducted by the Sellers and all reasonable attorneys’ fees and expenses and costs its Subsidiaries (other than the Subject Companies), (v) any matter described in Section 7.1(a)(v) of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable Disclosure Letter, (vi) the Pre-Closing Restructuring Actions and (vii) any FINRA Burdensome Condition (provided, however, that the obligation to indemnify for any FINRA Burdensome Condition shall not apply if Apollo has exercised its right under the Buyer Indemnified Parties for the Loss at issuesecond sentence of Section 5.2(i)).
(b) Anything in this Agreement Notwithstanding anything to the contrary notwithstanding:contained in this Section 7.1, except with respect to actual and intentional fraud or breaches of Fundamental Representations (and, for the avoidance of doubt, Section 2.11, the indemnification for which shall be governed under Article VIII), as to which the limitations in this Section 7.1(b) shall not apply, the Indemnified Apollo Parties shall be entitled to indemnification for breaches of representations and warranties pursuant to Section 7.1(a)(i):
(i) each Seller Indemnifying Party alone will only if, and then only to the extent that, the aggregate Damages to all Indemnified Apollo Parties (without duplication), with respect to all claims for indemnification pursuant to Section 7.1(a)(i), exceed $250,000 (the “Deductible”), whereupon (subject to the provisions of clause (ii) below) the Sellers shall be liable for any breach obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes amount of this Article VIII) for such purposethe Deductible; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder only with respect to claims for indemnification in respect of which notice of the inaccuracy or breach giving rise to such claim shall have been given to RCAP on or before the date that is eighteen (18) months after the Closing Date (other than claims for indemnification arising from a matter breach of any Fundamental Representation, which must be asserted by the Indemnified Apollo Parties not later than sixty days following the expiration of the relevant statute of limitations). In addition, the Sellers shall not be liable for indemnification pursuant to Section 7.1(a)(i) with respect to any Damages suffered, paid or incurred by an Indemnified Apollo Party of less than $10,000 (A) specifically identified in any Financial Statements or Interim Financial Statementsa “De Minimis Damage”), or and all De Minimis Damages shall be disregarded for purposes of the Deductible (B) for which there is a reserve or accrual intended to cover such matter it being understood and agreed that in the Closing Balance Sheet event any Damage is greater than the threshold for a De Minimis Loss, no portion of such Damage shall be disregarded pursuant to this sentence).
(c) Notwithstanding anything to the contrary contained in this Section 7.1, the Indemnified Apollo Parties shall be entitled to indemnification pursuant to Section 7.1(a)(iii) only if, and then only to the extent that, the aggregate Damages to all Indemnified Apollo Parties (without duplication), with respect to all claims for indemnification pursuant to Section 7.1(a)(iii), exceed $100,000, whereupon the Sellers shall be obligated to pay in full all such amounts but only up to the amount extent such aggregate Damages are in excess of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II$100,000.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (RCS Capital Corp)
Indemnification by the Sellers. (a) Subject to From and after the other provisions of this Article VIII, including Section 8.5 belowClosing, the Sellers shall, in accordance with and their heirs, successors, and assigns (collectively, the “Seller Indemnifying Parties”) will save, defendsubject to Section 11.8(f), indemnify, defend and hold harmless save the Buyer and its officers, directors, employees, Affiliates, agents, representatives, successors and permitted assigns (collectivelyeach, the a “Buyer Indemnified PartiesParty”) ), forever harmless from and against against, and shall pay to a Buyer Indemnified Party or reimburse a Buyer Indemnified Party for, any and all lossesliabilities, damages, liabilitiesobligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses, interest, awardsfines, penalties, or costs or expenses of any and all investigations, proceedings, judgments, penaltiesorders, costsenvironmental analyses, remediations, settlements and expenses compromises (including reasonable fees and expenses of attorneys’ fees, costs, accountants and other out-of-pocket expenses incurred in investigating, preparing, or defending the foregoingexperts) (hereinafter collectively, “Loss” or “Losses”) to the extent sustained or incurred by any Buyer Indemnified Party relating to, resulting from, arising out of or resulting fromotherwise by virtue of:
(ia) any breach of any a representation or warranty made by the Companies and the Sellers in ARTICLE III of this Agreement, made by the ESOP in ARTICLE V or on behalf of the Company, the Sellers, or Representative contained in this Agreement or any Ancillary Agreements or any certificate delivered by the Companies pursuant heretoto Section 8.2(a); provided, excluding however, that for purposes of this ARTICLE XI, the representations and warranties made contained in ARTICLE III shall apply without giving effect to any qualifications of materiality or Material Adverse Effect contained therein; provided, further however, that the Buyer Indemnified Party shall have asserted its claim for indemnification in writing with reasonable supporting details before the expiration of any applicable survival period specified in Section 3.15, the breach of which results in a payment of additional Taxes11.1;
(iib) any breach of any a covenant or agreement made by the Sellers or Representative contained Companies in this Agreement or any Ancillary Agreement that survives prior to the Closing;
(iiic) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties)ESOP Liability;
(ivd) any and all reasonable attorneys’ claim or assertion for broker’s or seller’s fees and or expenses and costs arising out of investigation and litigation incurred the transactions contemplated by this Agreement by a Buyer Indemnified Party in enforcing its rights under this Section but only if person claiming to have been engaged by the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue.Companies; or
(be) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IIExcluded Liability.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lazy Days R.V. Center, Inc.)
Indemnification by the Sellers. Each Seller will severally indemnify and hold harmless the Buyer and each of its directors, officers, shareholders, partners, employees, agents and Affiliates (a) Subject to including, following the other provisions Closing, the Company), and the Representatives and Affiliates of each of the foregoing Persons (each, a “Buyer Indemnified Person”), from, against and in respect of any and all Actions, Liabilities, Governmental Orders, Encumbrances, losses, damages, bonds, dues, assessments, fines, penalties, Taxes, fees, costs (including costs of investigation, defense and enforcement of this Article VIIIAgreement), expenses or amounts paid in settlement (in each case, including Section 8.5 belowreasonable attorneys’ and experts fees and expenses), the Sellers and their heirswhether or not involving a Third Party Claim (each, successorsa “Loss”, and assigns (collectively, the “Seller Indemnifying PartiesLosses”) will save), defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, incurred or suffered by the “Buyer Indemnified Parties”) from and against Persons or any and all lossesof them as a result of, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees, costs, and other out-of-pocket expenses incurred in investigating, preparing, or defending the foregoing) (hereinafter collectively, “Losses”) to the extent arising out of or resulting from:
directly or indirectly relating to: (ia) any breach of of, or inaccuracy in, any representation or warranty made by the Company or on behalf the Sellers or any of the Company, the Sellers, or Representative contained them in this Agreement or (other than in Section 4), any Ancillary Agreements Agreement or in any document, Schedule, instrument or certificate delivered pursuant heretoto this Agreement (in each case, excluding representations and warranties made in Section 3.15as such representation or warranty would read if all qualifications as to materiality, including each reference to the breach of which results in a payment of additional Taxes;
defined term “Material Adverse Effect,” were deleted therefrom); (iib) any fraud of the Company or any breach or violation of any covenant or agreement by of the Sellers Company in or Representative contained in pursuant to this Agreement or any Ancillary Agreement that survives Closing;
(iii) any obligations to the extent required to be performed or liabilities relating to or arising from any product liability or warranty claims based on products or services sold complied with by the Company or any Subsidiary on at or prior to the Closing Date Closing; (except c) any breach of, or inaccuracy in, any representation or warranty made by such Seller 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 extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds defined term “Material Adverse Effect,” were deleted therefrom); or from indemnification payments received from one or more third parties);
(ivd) any and all reasonable attorneys’ fees and expenses and costs fraud of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights any of the Sellers or any breach or violation of any covenant or agreement of such Sellers or any of them (including under this Section but only if the Seller Indemnifying Parties are ultimately liable 10) in or pursuant to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject The Sellers agree to indemnify, defend and hold harmless in the manner and subject to the other provisions of limitations and qualifications set forth in this Article VIII, including Section 8.5 belowVIII the Parent, the Sellers Merger Sub and the Surviving Corporation (and their heirsrespective directors, successorsofficers, employees, affiliates, successors and assigns assigns) (collectively, the “Seller Indemnifying Parties”"PURCHASER PARTIES") will save, defend, indemnify, against and hold the Purchaser Parties harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against in respect of any and all losses, liabilities, damages, liabilities, deficiencies, costs, expenses (including, without limitation, expenses of investigation and defense and reasonable fees, disbursements and expenses of counsel incurred by the Purchaser Parties in any action or proceeding between the Purchaser Parties and the Sellers or between the Purchaser Parties and any third party or otherwise), claims, interestliens or other obligations of any nature whatsoever (collectively, awards"LOSSES") based upon, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees, costs, and other out-arising out of-pocket expenses incurred in investigating, preparing, or defending the foregoing) (hereinafter collectively, “Losses”) to the extent arising out otherwise in respect of or resulting from:
which may be incurred by virtue of or result from (ia) any the inaccuracy in or breach of any representation representation, warranty, covenant or warranty agreement made by or on behalf of the Company, Sellers or the Sellers, or Representative contained Company in this Agreement or in any Ancillary Agreements document or any certificate instrument delivered at the Closing pursuant hereto, excluding representations and warranties made in Section 3.15, the breach of which results in a payment of additional Taxes;
(iib) any breach claim of any covenant nature, including, without limitation, any claim for appraisal or agreement dissenters' rights, by the Sellers any Shareholder or Representative contained Option Holder arising out of or in connection with this Agreement or any Ancillary Agreement that survives Closing;
the Merger (iiiother than claims for payments under Article II of this Agreement); or (c) any obligations or liabilities relating enforcing the indemnification provided for hereunder. The Sellers shall have no right to or arising seek contribution from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on of the Subsidiaries with respect to all or prior to any part of any of the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from Sellers' indemnification payments received from one or more third parties);
(iv) any and all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights obligations under this Section but only if the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue8.1.
(b) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject From and after the Closing, subject to the other provisions of this Article VIII, including Section 8.5 belowVII, the Sellers shall jointly and their heirsseverally indemnify Apollo and its officers, successorsdirectors, employees and assigns Affiliates (collectively, the “Seller Indemnifying Indemnified Apollo Parties”) will save, defend, indemnify), and hold each of them harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against against, any and all lossesactions, suits, proceedings, demands, assessments, judgments, claims, liabilities, losses (including losses arising from the diminution of value), costs, damages, liabilitiesexpenses, deficiencies, claims, interest, awards, judgments, interest or penalties, costs, and expenses (including reasonable attorneys’ fees, costsexpenses and disbursements, and other out-of-pocket expenses incurred in investigating, preparing, whether or defending the foregoing) not resulting from a Third Party Claim (hereinafter collectively, “LossesDamages”) to the extent ), suffered, paid or incurred by such Indemnified Apollo Party arising out of of, resulting from or resulting from:
caused by: (i) any breach of any of the representations and warranties (read without giving effect to any qualifications regarding materiality, Material Adverse Effect or similar qualifications other than with respect to the representations in Section 2.6 and Section 2.9(a)) made by the Sellers in Article II, or in any certificate or other document delivered in connection with this Agreement, as if such representation or warranty was made by or on behalf as of the Company, Closing (except in the Sellers, or Representative contained in this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding case of representations and warranties made which by their terms speak only as of a specific date or dates, in Section 3.15which case as of such date or dates), the breach of which results in a payment of additional Taxes;
(ii) any breach by a Seller of any covenant or agreement by the Sellers or Representative of such Seller contained in this Agreement or any Ancillary Agreement that survives Closing;
Agreement, (iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by matter described in Section 7.1(a)(iii) of the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties);
Seller Disclosure Letter, (iv) the Excluded RCS Business or any other businesses operated or conducted by the Sellers and all reasonable attorneys’ fees and expenses and costs its Subsidiaries (other than the Subject Companies), (v) any matter described in Section 7.1(a)(v) of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable Disclosure Letter, (vi) the Pre-Closing Restructuring Actions and (vii) any FINRA Burdensome Condition (provided, however, that the obligation to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach FINRA Burdensome Condition shall not apply if Apollo has exercised its right under the second sentence of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other mattersSection 5.2(i), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Apollo Global Management LLC)
Indemnification by the Sellers. (a) Subject to the other provisions terms of this Article VIII8, including Section 8.5 belowif the Second Closing occurs, the Sellers shall jointly and their heirsseverally indemnify, defend, save and hold harmless Netzee and each of its Subsidiaries, predecessors, successors, directors, officers, employees, agents, representatives and assigns (collectively, the “Seller Indemnifying Parties”) will save"NETZEE INDEMNIFIED PARTIES"), defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all claims, losses, damages, liabilities, deficienciesdemands, claims, interest, awardsassessments, judgments, penalties, costs, costs and expenses (including including, without limitation, reasonable attorneys’ fees' and accountants' fees and expenses), coststogether with interest and penalties, and other out-of-pocket expenses incurred in investigatingif any, preparing, awarded by court order or defending the foregoing) otherwise agreed to (hereinafter collectively, “Losses”) to "INDEMNIFIABLE DAMAGES"), suffered by the extent arising Netzee Indemnified Parties that arise out of or resulting from:result from any of the following (whether or not a third party initiates the proceeding or claim giving rise to such Indemnifiable Damages):
(ia) any breach of any representation of the representations, warranties, covenants or warranty agreements made by or on behalf any of the Company, the Sellers, or Representative contained Sellers in this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding representations and warranties made in Section 3.15, the breach of which results in a payment of additional Taxes;other Purchase Agreements; or
(iib) any breach of any representation, warranty, covenant or agreement in a document or certificate delivered by any of the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives at the Second Closing;
(iiic) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties)Retained Liability;
(ivd) any and all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party subject to the limitations set forth in enforcing its rights under Section 8.9 as if this Section but only if 8.1(d) were a representation and warranty of the Seller Indemnifying Parties are ultimately liable Sellers, any customer identified on Schedule 8.1 terminating its agreement relating to indemnify the Buyer Indemnified Parties Business based upon a failure to consent to transfer of the agreement to Netzee within sixty (60) days of the Second Closing Date, in which case the Indemnifiable Damages shall equal the expected revenues for the Loss at issue.applicable termination notice period set forth in the agreement; or
(be) Anything in this Agreement the failure of any of the Sellers to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for comply with any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IIBulk Sales Law.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject to From and after the other provisions of this Article VIII, including Section 8.5 belowClosing, the Sellers shall jointly and their heirs, successors, severally defend and assigns (collectively, indemnify the “Seller Indemnifying Parties”) will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, Parties against Damages sustained by the “Buyer Indemnified Parties”) Parties arising from and against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees, costs, and other out-of-pocket expenses incurred or in investigating, preparing, or defending the foregoing) (hereinafter collectively, “Losses”) to the extent arising out of or resulting from:
connection with: (i) any breach Taxes of any representation or warranty made by or on behalf of the CompanyCompanies for any Pre-Closing Tax Period (allocated, the Sellerswith respect to any Straddle Period, or Representative contained in this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding representations and warranties made as provided in Section 3.157.3), the breach of which results in a payment of additional Taxes;
(ii) Taxes imposed on any breach Company by reason of any covenant being a member of a consolidated, combined, unitary, or agreement by the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives Closing;
(iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary similar group on or prior to the Closing Date, and that are imposed pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision of Law), (iii) any failure of a representation or warranty of the Sellers contained in Section 2.8 to be true and correct on the date of this Agreement and on the Closing Date as if made on such date and the failure of the Sellers or, prior to the Closing, any of the Companies, to perform any covenant or agreement contained in this Agreement with respect to Taxes, (A) in each case determined without regard to any qualification related to materiality or Business Material Adverse Effect contained therein and (B) in each case, except with respect to the representations and warranties set forth in Sections 2.8(g), 2.8(h), clauses (i), (ii), (iv) and (v) of Section 2.8(j) and clause (ii) of Section 2.8(l), only insofar as such failure results in Tax for a Pre-Closing Tax Period, (iv) any Transfer Taxes arising as a result of the contribution of U.S. Assets to the U.S. Company prior to Closing, (v) Taxes that are Excluded Liabilities and (vi) Taxes of another Person for any Pre-Closing Tax Period imposed on any of the Companies by reason of Contract, assumption, transferee or successor liability, operation of Law or otherwise; provided that the Sellers shall not be liable with respect to any Taxes (A) to the extent of the amount of such Taxes that are reflected as a liability in the calculation of Closing Working Capital in the Final Closing Statement, (B) for any Taxes incurred as a result of any acts by Buyer or Buyer’s Affiliates (including the Companies following the Closing) after the Closing on the Closing Date that are outside the ordinary course of business and not otherwise contemplated by this Agreement, (C) to the extent that any Buyer Indemnified Party collects reimbursements for such losses Damages (other than Damages arising from insurance proceeds or from indemnification payments received from one or more third partiesin connection with Section 7.2(ii) and Section 7.2(v);
(iv) any and ), when aggregated with all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable other Damages to indemnify which the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement have become entitled to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it recover under this Agreement or any Ancillary in connection with the transactions contemplated by this Agreement. Each such Seller Indemnifying Party will be considered , exceed the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial StatementsAdjusted Purchase Price, or (BD) for which there is if a reserve or accrual intended to cover such matter notice of a Tax Claim in the Closing Balance Sheet (but only up to the amount respect of such reserve or accrual Taxes is not otherwise relieved by other matters), or (C) if such matter was included delivered within the applicable period provided in determining the Adjusted Purchase Price pursuant to Article IISection 6.4.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject to the other provisions of limits set forth in this Article VIIISection 10.1, including Section 8.5 belowfrom and after the Closing, the Sellers agree, on a joint and several basis, to indemnify, defend and hold the Company, the Subsidiaries, and their heirsrespective Affiliates (including, successors, and assigns (collectivelyfor the avoidance of doubt, the “Investors and the Seller Indemnifying Parties”Stockholder), officers, directors, stockholders, employees, agents and representatives (the "Investor Indemnified Persons") will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against in respect of any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, costs and reasonable expenses (including reasonable attorneys’ fees, costs, fees and other out-of-pocket expenses incurred in investigating, preparing, or defending the foregoingof counsel) (hereinafter collectively, “"Losses”) to the extent "), that they may incur arising out of or resulting from:
due to (i) any inaccuracy or breach of any representation or warranty made by or on behalf of the CompanySellers contained in Article 4 of this Agreement (other than set forth in Section 4.11 (Tax Matters) and, with respect to Taxes, in Section 4.4 (Financial Statements); provided, for the Sellersavoidance of doubt, or Representative that all other representations and warranties of the Sellers contained in Section 4.4 shall be included within the scope of the indemnity contained in this Agreement or any Ancillary Agreements or any certificate delivered pursuant heretoSection 10.1(a)(i)), excluding representations and warranties made in Section 3.15, the breach of which results in a payment of additional Taxes;
(ii) any breach of any covenant or other agreement by of the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives Closing;
Agreement, (iii) the Interim Transfer, the Transferred Companies and Assets and all liabilities related thereto, any obligations Retained Employee or liabilities any Retained Contract, (iv) any action, claim, demand, summons, subpoena, suit, proceeding or investigation relating to exposure to silica, asbestos, or arising from any product liability other personal injury or warranty claims based wrongful death caused or alleged to be caused by events, actions, circumstances or factors occurring prior to Closing that do not arise out of the Business, (v) any action, claim, demand, summons, subpoena, suit, proceeding or investigation relating to exposure to silica in respect of facts, circumstances or events occurring prior to the Closing that arise out of the Business, (vi) any failure to obtain any consent required under any agreements referenced on products Schedule 4.2(a), (vii) any employment or services sold other agreement between RSC or any of its Affiliates and Xxxxxx Xxxx, the termination of Xxxxxx Xxxx'x employment and other relationships with RSC and any other activities of Xxxxxx Xxxx, (viii) any activities, operations or business, including the industrial air tool business and the temperature control equipment business, conducted by the Company or any Subsidiary on or of its Affiliates prior to Closing other than the Closing Date Business and any disposition of any such business and (ix) any Intercompany Debt other than payments the Company is required to make under Section 7.10(a)(iv). Anything to the contrary contained herein notwithstanding, and except for claims made under Section 7.4 (Employee Matters; Labor Matters), none of Investor Indemnified Persons shall be entitled to recover from the Sellers pursuant to (x) clause (a)(i) of this Section 10.1 for (A) any particular Loss unless such Loss (together with all Losses arising out of the same facts, circumstances, events or series of events) exceeds $75,000 and no claim therefor shall be asserted for any purpose hereunder (and no such Loss shall be included in the calculation of the deductible provided for in clause (B) hereof), (B) any Losses unless and until the total of all Losses indemnifiable pursuant to clause (a)(i) of this Section 10.1 exceeds $33,000,000, and then only for the amount by which such claims exceed such amount and (C) more than an aggregate of twenty percent of the Purchase Price with respect to all Losses indemnifiable pursuant to clause (a)(i) of this Section 10.1 (the limitation set forth in this Section 10.1(a)(x)(C), the "Sellers Cap"), (y) clause (a)(vi) of this Section 10.1 for (A) any particular Loss unless and to the extent that such Loss exceeds $50,000 and no claim therefor shall be asserted for any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or purpose hereunder and (B) more third parties);
than $10,000,000 with respect to all Losses indemnifiable pursuant to clause (iva)(vi) any and all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties 10.1, or (z) clause (v) of this Section 10.1(a) for the Loss at issue.
(b) Anything in this Agreement to the contrary notwithstanding:
any Losses other than (i) each Seller Indemnifying Party alone will be liable for any breach one-half of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each all such Seller Indemnifying Party will be considered Losses until the Indemnifying Party (as defined below aggregate amount of such Losses equals $10,000,000 and for purposes of this Article VIII) for such purpose; and
(ii) all such Losses in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover excess of $10,000,000 until such matter Losses equal $35,000,000 in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IIaggregate.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject to Notwithstanding the other provisions of this Article VIIIClosing and, including Section 8.5 belowexcept as provided herein, the Sellers and their heirs, successors, and assigns (collectively, the “Seller Indemnifying Parties”) will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees, costs, and other out-of-pocket expenses incurred in investigating, preparing, or defending the foregoing) (hereinafter collectively, “Losses”) to the extent arising out of or resulting from:
(i) any breach regardless of any representation or warranty investigation at any time made by or on behalf of the CompanyBuyers or of any knowledge or information that the Buyers may have, the SellersSellers shall indemnify and fully defend, save and hold the Buyers, any Affiliate of the Buyers, and their respective directors, officers, agents and employees (the "Buyer Indemnitees"), harmless if any Buyer Indemnitee shall suffer any damage, demand, claim, liability, obligation, loss, cost, expense (including, without limitation, the fees and disbursements of attorneys, accountants, consultants and engineers), deficiency, interest, penalty, impositions, assessments or fines of any kind or nature, whether known or unknown, fixed or contingent (collectively, "Losses") arising out of or resulting from, or Representative shall pay or become obliged to pay any sum on account of, one or more of the following:
(i) subject to Section 7.1, any untruth or inaccuracy in any representation or certification of the Sellers or the breach of any warranty of the Sellers contained in this Agreement or any Ancillary Agreements or in any certificate delivered pursuant heretoto the Buyers in connection with the Closing (in each case, excluding representations and warranties made without regard to any qualification or limitation with respect to "knowledge" or "materiality", whether by reference to "in Section 3.15any material respect", the breach of which results in a payment of additional Taxes"Material Adverse Effect" or otherwise);
(ii) subject to Section 7.1, any breach failure of any covenant or agreement by the Sellers to duly perform or Representative observe any term, provision, covenant, agreement or condition contained in this Agreement on the part of the Sellers to be performed or any Ancillary Agreement that survives Closingobserved;
(iiiA) any and all Taxes of the Subject Companies for any Pre-Closing Tax Period and (B) all Taxes arising (directly or indirectly) as a result of the transactions contemplated hereby (except as otherwise provided by Section 11.4) (the obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by indemnify pursuant to this Section 7.2(a)(iii) shall survive for a period terminating 60 days after the Company or any Subsidiary on or prior applicable statute of limitations with respect to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third partiesTax Liabilities in question taking into account extensions);; and
(iv) all Excluded Liabilities; provided, however, that no Seller shall have any obligation to make any payment under Section 7.2(a)(i) and 7.2(a)(ii) (except pursuant to an inaccuracy of a representation or a breach of a warranty contained in Sections 3.5 [Capital Stock and Related Matters], 3.7 [Subsidiaries and Equity Investments], 3.10 [Tax Matters] or 3.25 [Brokers]) with respect to any representation or warranty unless and until the aggregate amount to which all reasonable attorneys’ fees Buyer Indemnitees are entitled by reason of all such claims under Section 7.2(a)(i) and expenses 7.2(a)(ii) exceeds $1,000,000 (the "Basket Amount"), in which case the party entitled to such indemnification shall be entitled to receive both the Basket Amount and costs the amount in excess of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issueBasket Amount.
(b) Anything in this Agreement Notwithstanding anything herein to the contrary notwithstandingcontrary, the maximum aggregate liability of the Sellers to the Buyer Indemnitees under Section 7.2(a)(i) and 7.2(a)(ii) hereof (except pursuant to an inaccuracy of a representation or a breach of a warranty contained in Sections 3.5 [Capital Stock and Related Matters], 3.7 [Subsidiaries and Equity Investments], 3.10 [Tax Matters] or 3.25 [Brokers]) shall not exceed $25,000,000 in the aggregate.
(c) For purposes of Section 7.2(a), whenever it is necessary to determine the liability for Taxes of the Subject Companies which are for a taxable period ending on a day other than the Closing Date:
(i) each Seller Indemnifying Party alone will Taxes imposed on a periodic basis (such as real, personal and intangible property Taxes) shall be liable for any breach prorated between the Buyers and the Sellers as of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purposeClosing; and
(ii) all other Taxes for the Pre-Closing Tax Period shall be determined as if the Subject Companies had a taxable year or period that ended at the close of the Closing Date.
(d) Other than pursuant to Sections 7.2(a)(i) (to the extent arising from breaches of the representations and warranties contained in no event will any Seller Indemnifying Parties have any liability hereunder with respect Sections 3.1 [Corporate Organization], 3.3 [No Conflict or Violation; Authority and Validity], 3.5 [Capital Stock and Related Matters] or 3.7 [Subsidiaries and Equity Investments]), 7.2(a)(ii), 7.2(a)(iii) or 7.2(a)(iv), the sole recourse of the Buyers against the Sellers pursuant to a matter this Section 7.2 shall be (Ai) specifically identified in any Financial Statements or Interim Financial Statements, or to the Escrow Fund pursuant to the terms of the Escrow Agreement and then (Bii) for which there is a reserve or accrual intended to cover such matter only in the Closing Balance Sheet (but only up event that the Escrow Agreement has been terminated or the Escrow Fund depleted, to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IIRMC.
Appears in 1 contract
Samples: Securities Purchase Agreement (Genesee & Wyoming Inc)
Indemnification by the Sellers. (a) Subject to the other provisions terms and conditions of this Article VIIIARTICLE VII, including Section 8.5 belowfrom and after the Closing, each of the Sellers Sellers, severally and their heirsnot jointly, successorson a pro rata basis based on the percentage set forth opposite such Seller’s name on Exhibit A (such percentage with respect to any Seller, and assigns (collectively, the such Seller’s “Seller Indemnifying PartiesPro Rata Portion”) will save, defend, indemnify, and hold harmless shall indemnify Buyer and its (following the Closing) the Company and the Subsidiary and each of their respective officers, directors, employees, agents, representatives, Affiliates, successors and permitted assigns (collectively, the “Buyer Indemnified Parties”) from in respect of, and against hold the Buyer Parties harmless against, such Seller’s Pro Rata Portion of any and all losses, damagesdebts, obligations and other liabilities, deficienciesdemands, claims, interestactions, awardscauses of action, judgmentsmonetary damages, fines, Taxes, penalties, costs, costs and expenses (including reasonable attorneys’ feesfee and expenses), costs, and other out-of-pocket expenses incurred in investigating, preparing, whether or defending the foregoing) not arising out of third party claims (hereinafter collectively, “LossesDamages”) ), incurred or suffered by any Buyer Party to the extent resulting from or arising out of or resulting fromin connection with:
(i) any breach of any representation or warranty made by or on behalf of the Company, the Sellers, or Representative Sellers contained in ARTICLE II of this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding (other than the representations and warranties made contained in Section 3.152.10(g)) or the certificate of the Sellers delivered at the Closing pursuant to Section 6.1(e) (or the assertion by any third party of claims which, if successful, would give rise to any of the breach foregoing), with the extent of which results such Damages being determined without regard to any qualification based on materiality or Company Material Adverse Effect contained in a payment of additional Taxesany such representation or warranty;
(ii) any breach of any covenant or agreement by of the Company contained in this Agreement, or any breach of any covenant or agreement of the Sellers or Representative contained in this Agreement to the extent relating to the Sellers’ obligation to cause the Company to comply with such covenant or any Ancillary Agreement that survives Closingagreement;
(iii) (1) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by Tax of the Company or the Subsidiary for all taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Closing Date (allocated in accordance with Section 9.2(b)), (2) any Tax of any member of an affiliated, consolidated, combined or unitary group of which the Company or the Subsidiary (or any predecessor) is or was a member on or prior to the Closing Date Date, including pursuant to Treasury Regulation §1.1502-6 or any similar state, local, or foreign law or regulation, (except 3) any Tax of any person (other than the Company or the Subsidiary) imposed on the Company or the Subsidiary as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which Taxes relate to an event or transaction occurring before the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties)Closing;
(iv) any and all reasonable attorneys’ fees and expenses and costs Indebtedness of investigation and litigation incurred the Company or the Subsidiary or any Seller Transaction Expenses, in each case that was not reflected on the Closing Statement or that was not otherwise paid at Closing by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable to indemnify Company or, on behalf of the Buyer Indemnified Parties for Company, by the Loss at issue.Sellers when due;
(bv) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a any representation as to itself or a covenant or obligation to be performed by it under warranty of the Sellers contained in Section 2.10(g) of this Agreement (or the assertion by any Ancillary Agreement. Each such Seller Indemnifying Party will be considered third party of claims which, if successful, would give rise to the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; andforegoing);
(iivi) any of the matters set forth in no event will Section 2.10(g) of the Disclosure Schedule (or the assertion by any Seller Indemnifying Parties have third party of claims which, if successful, would give rise to the foregoing); or
(vii) the Xxxxxxxx Claim. “Xxxxxxxx Claim” means any liability hereunder request, demand or claim asserted by any person against the Company, whether directly or for indemnification, arising from, relating to or in connection with respect to a any Intellectual Property owned by the Xxxxx Xxxxxxx Xxxxxxxx Trust, including the matter (A) specifically identified that is the subject of the litigation pending in any Financial Statements or Interim Financial Statementsthe U.S. District Court for the Eastern District of Texas, or (B) for which there is a reserve or accrual intended to cover Xxxx Xxxxxxx, as Trustee of the Xxxxx Xxxxxxx Xxxxxxxx Trust v. ADT Security Services, Inc., et. al., Civil Action No. 2:07-cv-00282-TJW, as such matter in the Closing Balance Sheet (but only up to the amount of such reserve may be amended, progress or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IIdevelop.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject to the other provisions terms and conditions of this Article VIII, including Section 8.5 belowVII, the Sellers hereby agree that, from and their heirsafter the Closing Date, successorsthey shall jointly and severally indemnify, defend and hold harmless the Purchaser and its Affiliates, successors and assigns, and assigns each of their respective directors, officers, managers, members, employees and agents (collectively, the “Seller Indemnifying Parties”) will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Purchaser Indemnified Parties”) from and against any and all lossesclaim, damagesobligation, liabilitiesloss, deficienciesfine, claimspenalty, interestdamage, awardsliability, judgmentsjudgment, penaltiesTax, costssettlement, and expenses cost or expense (including reasonable attorneys’ 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 or suffered by any such Purchaser Indemnified Party relating to the extent or arising out of or resulting fromof:
(ia) any the breach or violation of any representation or warranty made by the Company and/or Sellers in Article III;
(b) the breach or on behalf violation of, or failure to perform, any covenant or agreement of the Company, any Seller or the Sellers, or ’ Representative contained in this Agreement or in any Ancillary other Transaction Document, provided that each Seller shall be individually liable, and not jointly liable, for all Losses relating to or arising out of said Seller’s breach, violation or failure to perform any covenant or agreement set forth in Sections 6.05 (Additional Restrictions on Transfer of Shares) and 6.06 (Prior Employment Agreements and Certain Waivers and Releases) herein or in any Noncompetition Agreement executed by said Seller at Closing;
(c) any debt, claim, liability, obligation or commitment of the Company incurred prior to the Closing which was required to be disclosed under Section 3.11 or any certificate delivered pursuant heretoother provision of this Agreement, excluding representations and warranties made was not so disclosed (including Losses resulting from or arising out of the non-performance or non-compliance by the Company of any covenant, agreement or condition of any contract, agreement, license, lease, Governmental Approval, commitment, permit, order or other instrument or arrangement to which it is a party or by which it or any of its property is bound, which covenant, agreement or condition was required thereby to be performed or complied with by the Company prior to or on the Closing Date);
(d) the operation of the Company prior to the Closing Date;
(e) any matter set forth in Section 3.15Schedule 3.11 or otherwise relating to or arising out of (i) any non-compliance of the Company’s 401(k) plan with the terms of such plan, ERISA, the breach of which results in a payment of additional Taxes;
Code or other applicable Law, (ii) any breach of any covenant or agreement failure by the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives Closing;
Company to timely make contributions to the Company’s 401(k) plan and (iii) any obligations efforts and actions required to obtain a compliance statement with respect to the Company’s 401(k) plan under ERISA, the Code or liabilities relating other applicable Law. Except as otherwise expressly set forth herein, any indemnification, reimbursement or other payment to or arising be made by a Seller pursuant to this Section 7.02 shall be paid first from any product liability or warranty claims based on products or services sold the Indemnity Escrow Account, and then directly by the Company or any Subsidiary on or prior to the Closing Date (except Seller in cash to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties);
(iv) any and all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party the funds in enforcing its rights under this Section but only if the Seller Indemnifying Parties Indemnity Escrow Account are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended insufficient to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IISeller’s obligations hereunder.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject to the other limitations and the provisions of set forth in this Article VIIIAgreement, including Section 8.5 belowfrom and after the Closing, the Sellers shall, severally and their heirsnot jointly, successorsin accordance with the Seller Percentages, and assigns (collectively, the “Seller Indemnifying Parties”) will save, defend, indemnify, indemnify and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all lossesloss, damagesdamage, liabilitiesexpense (including court costs, deficiencies, claims, interest, awardsamounts paid in settlement, judgments, penalties, costs, and expenses (including reasonable attorneys’ feesfees or other expenses for investigating and defending), costssuit, and other out-of-pocket expenses incurred in investigatingaction, preparingclaim, liability or defending the foregoing) obligation (hereinafter collectively, “LossesDamages”) to the extent related to, caused by or arising out of or resulting from:
(i) any misrepresentation or breach of any representation or warranty contained in Article III or in any Related Document by the Sellers;
(ii) the failure by the Company or any Seller to fulfill any covenant or agreement contained herein or in any Related Document, other than such covenants or agreements set forth in Section 5.2, ignoring, for purposes of this Section 10.2(a)(ii), any Schedule Supplements;
(iii) the failure of the Sellers to fulfill any covenant or agreement contained in Section 5.2 (“Non-Compete; Confidentiality”) (it being understood that only the breaching Seller shall have any obligations under this clause (iii));
(iv) any Transaction Expenses payable by the Company not paid at or prior to the Closing (and not included in the calculation of Net Working Capital);
(v) any brokerage, finders or other fee or commission in connection with the transactions contemplated by this Agreement based upon any agreement, arrangement or understanding made by or on behalf of the Company, the Sellers, or Representative contained in this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding representations and warranties made in Section 3.15, the breach of which results in a payment of additional Taxes;
(ii) any breach of any covenant or agreement by the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives Closing;
(iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties);Seller; and
(ivvi) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party legal fees, in enforcing its rights under this Section but only if indemnity against the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issueSellers.
(b) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II.
Appears in 1 contract
Samples: Interest Purchase Agreement (Intercloud Systems, Inc.)
Indemnification by the Sellers. (a) Subject The Sellers hereby agree, jointly and severally, to indemnify and defend Purchaser and its Affiliates (including, for the other provisions avoidance of this Article VIIIdoubt, including Section 8.5 below, each of the Sellers Concurrent NC and Concurrent Asia Corp from and after the Closing and Concurrent HPS from and after the Concurrent HPS Closing) and its and their heirsdirectors, successorsofficers, employees, agents and representatives and their successors in interest and assigns (collectively, the “Seller Indemnifying PartiesPurchaser Indemnitees”) will save, defend, indemnify, against and agree to hold Purchaser Indemnitees harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all losses, damages, liabilities, deficienciescosts or expenses of any nature, claims, interest, awards, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees, costsclaims, diminution in value (but only to the extent of such diminution in value and other out-of-pocket expenses incurred not including any diminution calculated based on a multiple of earnings or revenue), amounts paid in investigatingsettlement, preparingjudgment, award, fine, penalty, Tax, fee (including any reasonable expert fee, accounting fee or defending advisory fee), charge, cost (including reasonable cost of investigation), including the foregoingcost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, but excluding punitive, unforeseeable consequential, indirect or special damages (except to the extent awarded in any proceeding by a third party against an Indemnified Party with respect to a matter for which such Indemnified Party is entitled to seek indemnification pursuant to this Article X) or speculative damages, except to the extent awarded to third parties (hereinafter collectively, “Losses”) incurred or sustained by, or imposed upon, any Purchaser Indemnitee based upon, arising out of, with respect to or by reason of:
(i) any inaccuracy in, or breach of (or alleged inaccuracy in or alleged breach of), any of the representations or warranties of the Sellers contained in this Agreement or the exhibits, certificates, schedules or instruments delivered in connection herewith;
(ii) any of the covenants or agreements of any of the Sellers contained in this Agreement;
(iii) any and all Excluded Liabilities incurred or sustained by, or imposed upon, any Purchaser Indemnitee based upon, arising out of, with respect to or by reason of any Excluded Liability (other than Liabilities described in Section 2.5(b) which will be governed exclusively by Section 11.1); and
(iv) any and all Non-Permitted Leakage.
(b) Without limiting any other provision of this Agreement (including the representations and warranties in Article V), the Sellers hereby agree, jointly and severally, to indemnify and defend the Purchaser Indemnitees against and agree to hold Purchaser Indemnitees harmless from and against:
(i) any and all of the following Losses to the extent arising out of or resulting from:
(i) any breach of any representation or warranty made by or on behalf relating to the application of the Companyterms of an Assigned Contract with a customer of the Business that conflict with (1) the Standard Seller Terms (including any invoices delivered to a customer of the Business in connection with the Standard Seller Terms) or (2) the terms of the VAR Agreements or Referral Partner Agreements (such conflicting terms, the Sellers“Conflicting Terms”); provided, or Representative that the Purchaser Indemnitees shall not be indemnified for any Conflicting Terms to the extent that such Conflicting Terms are contained in this Agreement any Contract entered into by Purchaser or its Affiliates after the Closing (which Contracts shall include any Ancillary Agreements or amendment to any certificate delivered Assigned Contract but exclude any purchase order to the extent it is duly submitted pursuant hereto, excluding representations and warranties made in Section 3.15, to the breach terms of which results in a payment of additional Taxesmaster services agreement that is an Assigned Contract);
(ii) any breach and all Losses arising out of or relating to any covenant claims that any Intellectual Property used by, or agreement useful to, the Business is owned by a third party as a result of the Sellers or Representative contained operation of the Conflicting Terms (including any of the Major Customer Terms listed in this Agreement or Section 5.12(b) of the Disclosure Schedule and in any Ancillary Agreement that survives Closingcross-reference thereto);
(iii) any obligations and all Losses arising out of or liabilities relating to any Conflicting Terms that constitute a Contract required to be disclosed pursuant to Section 5.12(a)(xvi) or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (Section 5.12(a)(xviii) of this Agreement, except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties)expressly disclosed in the applicable section of this Disclosure Schedule;
(iv) any and all reasonable attorneys’ fees Losses arising out of or relating to any “most favored” pricing provision or similar provision in any of the Conflicting Terms (including any of the Major Customer Terms listed in Section 5.12(b) of the Disclosure Schedule and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue.any cross-reference thereto);
(bv) Anything in this Agreement any and all Losses arising out of or relating to any obligation of the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach Business to perform custom software development which development obligation is not specifically set forth on the face of an invoice provided by the Business to a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purposecustomer; and
(iivi) any and all Losses arising out of or relating to the failure of any of the Conflicting Terms to limit Liabilities at fees received by Sellers under the relevant Contract, including infringement-related Liabilities (including under any of the Major Customer Terms listed in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (ASection 5.12(b) specifically identified of the Disclosure Schedule and in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matterscross-reference thereto), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II.
Appears in 1 contract
Samples: Asset and Share Purchase Agreement (Concurrent Computer Corp/De)
Indemnification by the Sellers. (a) Subject to the other provisions of this Article VIIIEach Seller will jointly and severally indemnify, including Section 8.5 belowhold harmless and defend Purchaser and Parent, the Sellers their subsidiaries and their heirsrespective Affiliates, successorsofficers, directors, employees and assigns (collectivelyagents excluding, the “Seller Indemnifying Parties”) will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees, costs, and other out-of-pocket expenses incurred in investigating, preparing, or defending the foregoing) (hereinafter collectively, “Losses”) to the extent arising out of or resulting from:
(i) any breach of any representation or warranty made by or on behalf of the Company, the Sellers, or Representative contained in this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding representations and warranties made in Section 3.15, the breach of which results in a payment of additional Taxes;
(ii) any breach of any covenant or agreement by the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives Closing;
(iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties);
(iv) any and all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIIIVIII only, the Sellers in any such capacity with Parent or any of its Affiliates (the “Purchaser Indemnified Parties”) for against, and hold them harmless from, any loss, liability, assessment, judgment, award, fine, penalty, obligation, damage, claim, Action, cause of action, interest or expense (including reasonable costs of investigation and defense and attorneys’ and other professionals’ fees) actually suffered or paid (including, in the case of a Third-Party Claim, consequential, incidental, exemplary, putative or similar damages) (“Damages”), whether or not involving a Third-Party Claim, sustained or incurred by such purpose; and
Purchaser Indemnified Parties (i) based upon, attributable to or resulting from the breach (or solely in the case of a Third-Party Claim, alleged breach) or failure of or inaccuracy in any of the representations or warranties made by the Sellers in the Transaction Documents (without giving effect to any materiality or Material Adverse Effect qualifiers contained in such representations or warranties), (ii) based upon, attributable to or resulting from the breach (or solely in no event will the case of a Third-Party Claim, alleged breach) of any covenant, obligation or other agreement on the part of any Seller Indemnifying Parties have or under the Transaction Documents or the failure by a Seller to comply with any liability hereunder such covenant, obligation or agreement, (iii) any Selling Expenses, (iv) arising out of, based upon or relating to the Demerger Transaction (including, without limitation, in connection with respect the ability to transfer Contracts), (v) arising out of, based upon or relating to the Keio University Fund or any obligations relating thereto, (vi) any Compensation Expenses, and (vii) any fraud or intentional misrepresentation by a Seller or any of their respective Affiliates. Notwithstanding anything to the contrary herein, the Sellers shall not be required to indemnify Parent for any U.S. federal income Taxes solely attributable to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) Final Determination by the IRS that Purchaser is not respected as the purchaser of the Company for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IIU.S. federal income Tax purposes.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sucampo Pharmaceuticals, Inc.)
Indemnification by the Sellers. (a) Subject Each of the Sellers covenants and agrees that, subject to the other provisions of this Article VIII, the Escrow Funds provided by it (including Section 8.5 below, interest and dividends thereon to the Sellers and their heirs, successors, and assigns (collectively, the “Seller Indemnifying Parties”extent held in escrow) will savebe available to indemnify, defend, indemnify, protect and hold harmless the Buyer (and, from and after the Closing Date, Xxxxxx), (and its successors directors, officers, employees, agents and assigns (collectively, affiliates) at all times after the “Buyer Indemnified Parties”) Closing Date from and against any and all claims, liabilities, losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, and costs or expenses (including reasonable attorneys’ legal fees, costscosts and expenses arising from or in connection with any action, and other out-of-pocket expenses incurred in investigatingsuit, preparing, proceeding or defending claim incident to any of the foregoing) (hereinafter collectively, “"Losses”") to suffered by any one or more of the extent Companies resulting from or arising out of or resulting from:
of: (i) any breach of or any inaccuracy in any representation or warranty made by the Sellers pursuant to or on behalf of the Company, the Sellers, or Representative contained in this Agreement or any Ancillary Agreements agreement, certificate or instrument contemplated hereby, any certificate delivered pursuant heretodocument relating hereto or thereto or contained in any Exhibit to this Agreement (in each case as such representation or warranty with respect to Companies other than the Far East Companies would read if all qualifications as to materiality, excluding representations Material Adverse Effect and warranties made in Section 3.15, the breach of which results in a payment of additional Taxes;
knowledge were deleted therefrom); (ii) any breach of or any covenant inaccuracy in any representation or agreement warranty made by the Sellers Companies pursuant to or Representative contained in this Agreement or any Ancillary agreement, certificate or instrument contemplated hereby, any document relating hereto or thereto or contained in any Exhibit to this Agreement that survives Closing;
(in each case as such representation or warranty would read if all qualifications as to materiality, Material Adverse Effect and knowledge were deleted therefrom); or (iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties);
(iv) any and all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as or failure by such Seller to itself or a perform any agreement, covenant or obligation to be performed by it under of such Seller set forth in this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements agreement or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article IIinstrument contemplated hereby.
Appears in 1 contract
Samples: Stock Purchase and Redemption Agreement (Holmes Products Corp)
Indemnification by the Sellers. (a) Subject to the other provisions terms of this Article VIIIVII, including Section 8.5 belowfrom and after the Closing, the Sellers shall, jointly and severally, indemnify, defend and hold harmless the Buyers and their heirsAffiliates and their respective directors, members, managers, stockholders, officers, partners, employees, agents, consultants, attorneys, representatives, successors, transferees and assigns assignees (collectively, the “Seller Indemnifying PartiesBuyers Covered Persons”) will save), defendto the fullest extent permitted by Law, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all losses, claims, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs, costs and expenses (including reasonable attorneys’ feesfees and expenses), costsinterest, penalties, judgments and other out-of-pocket expenses incurred in investigatingsettlements of any and every kind and character, preparingknown or unknown, fixed or defending the foregoing) contingent (hereinafter collectively, “Losses”) to the extent ), incurred, arising out of or resulting from:
relating to (ia) any breach of any representation of the representations or warranty warranties made by the Sellers contained in Article III or on behalf referred to in the certificates delivered by the Sellers pursuant to Section 6.2(b) or (b) any failure of the CompanySellers to carry out, the Sellersperform, satisfy and discharge any of their respective covenants, agreements, undertakings, liabilities or Representative contained in obligations under this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding representations and warranties made in Section 3.15, Transaction Document that are required to be performed after the breach of which results in a payment of additional Taxes;
(ii) any breach of any covenant or agreement by the Sellers or Representative contained in this Agreement or any Ancillary Agreement that survives Closing;
(iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties);
(iv) any and all reasonable attorneys’ fees and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and Solely for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to determining the amount of such reserve any Losses related to any breach or accrual inaccuracy (and not otherwise relieved by other mattersfor purposes of determining whether or not any breach or inaccuracy has occurred), the representations and warranties made by the Sellers in Article III or (C) if such matter was included deferred to in determining the Adjusted Purchase Price certificates delivered by the Sellers pursuant to Article IISection 6.2(b) shall be considered without regard to any “material,” “Material Adverse Effect” or similar qualifications set forth therein.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject to the other applicable provisions of this Article VIII, including Section 8.5 belowVI, the Sellers shall, jointly and their heirsseverally, successors, and assigns (collectively, the “Seller Indemnifying Parties”) will save, defend, indemnify, indemnify and hold harmless Buyer and its successors and assigns (collectivelyPurchaser, the Company, Pardot Europe and their respective successors, shareholders, members, Personnel, representatives, Affiliates and agents (other than the Seller Indemnified Parties) (the “Buyer Purchaser Indemnified Parties”) from and against any and all damages, losses, damages, liabilities, deficienciesLiabilities, claims, interest, awards, judgmentsEncumbrances, penalties, costs, costs and expenses (including costs of investigation and defense and reasonable attorneys’ feesfees and expenses) (each, costsan “Indemnity Loss”), and other out-incurred or suffered by the Purchaser Indemnified Parties or any of them as a result of-pocket expenses incurred in investigating, preparingarising out of, or defending the foregoing) (hereinafter collectively, “Losses”) to the extent arising out of directly or resulting fromindirectly relating to:
(ia) any breach of, or inaccuracy in, any of the representations or warranties of any representation or warranty made by or on behalf of the Company, the Sellers, or Representative Seller contained in this Agreement or any Ancillary of the Related Agreements (other than any Employment Agreement), in each case without regard to any qualification as to materiality or any certificate delivered pursuant hereto, excluding representations and warranties made in Section 3.15, the breach of which results in a payment of additional TaxesMaterial Adverse Effect;
(iib) any breach breach, or failure to perform, by any Seller of any covenant of his, her or agreement by the Sellers its covenants or Representative obligations contained in this Agreement or any Ancillary Agreement that survives of the Related Agreements (other than any Employment Agreement);
(c) any claim for indemnification or advancement or reimbursement of expenses made or asserted against the Company or Pardot Europe by any present or former officer, director and/or manager of the Company or Pardot Europe with respect to any action taken or omitted to be taken by any officer, director and/or manager of the Company or Pardot Europe prior to the Closing;
(d) (i) any Taxes of the Company or Pardot Europe for any Pre-Closing Tax Period (including that portion of any Straddle Period ending on the Closing Date, apportioned in accordance with Section 8.02(d)), except to the extent such Taxes are taken into account in the determination of the Final Net Working Capital, (ii) any Transfer Taxes to the extent allocated to the Sellers pursuant to Section 8.01, (iii) any obligations Taxes of the Sellers (including, without limitation, capital gains Taxes arising as a result of the transactions contemplated by this Agreement) or liabilities relating any of their Affiliates (excluding the Company) for any Tax period, (iv) any Taxes for which the Company or Pardot Europe is liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) by reason of inclusion in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date, or as a transferee or successor, by Contract, or otherwise, (v) any reimbursement paid to employees or arising from former employees of the Company to compensate for Tax penalties and interest incurred by such employees as a result of practices of the Company prior to Closing, and (vi) with respect to any product liability Pre-Closing Tax Period, any Taxes of the Company or warranty claims based on products or services sold Pardot Europe (including any withholding Tax Liability) and the incremental costs and expenses incurred by the Company or any Subsidiary on or prior Pardot Europe (including for Tax Return preparation) due to the Closing Date (except Company or Pardot Europe having become subject to the extent that Tax jurisdiction in any Buyer Indemnified Party collects reimbursements for state or jurisdiction and failing to have paid Taxes in such losses from insurance proceeds or from indemnification payments received from one or more third parties)jurisdiction;
(ive) any Liability relating to any Debt outstanding as of, or arising prior to, the Closing Date;
(f) any Liability relating to any Transaction Expenses outstanding as of, or arising prior to, the Closing Date; and
(g) any and all reasonable attorneys’ fees Proceedings, demands, assessments, audits or judgments arising out of any of the foregoing. Notwithstanding anything to the contrary contained herein, the Sellers severally, and expenses and costs of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable to not jointly, shall indemnify the Buyer Purchaser Indemnified Parties for any (A) breach of, or inaccuracy in, any of the Loss at issue.
representations or warranties contained in Article III pursuant to Section 6.01(a), (bB) Anything breach or failure to perform, by such Seller of any of such Seller’s covenants or obligations contained in this Agreement pursuant to the contrary notwithstanding:
(i) each Seller Indemnifying Party alone will be liable for any breach of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder with respect to a matter (A) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to the amount of such reserve or accrual not otherwise relieved by other mattersSection 6.01(b), or and (C) if such matter was included to the extent applicable to the Sellers, the matters set forth in determining the Adjusted Purchase Price pursuant to Article IISection 6.01(d)(iii).
Appears in 1 contract
Indemnification by the Sellers. (a) Subject to 9.2.1 The Sellers shall jointly and severally indemnify, defend and hold the other provisions of this Article VIII, including Section 8.5 belowBuyer, the Sellers Company (after the Closing Date) and their heirsany director, successorsofficer, employee, agent, advisor, parent, shareholder, Subsidiary or Affiliate of the Buyer (each a "Buyer Indemnitee") harmless from, against and assigns (collectivelypay or reimburse each Buyer Indemnitee for, the “Seller Indemnifying Parties”) will save, defend, indemnify, and hold harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all demands, claims, actions or causes of action, assessments, liabilities, losses, costs, damages, liabilitiespenalties, deficienciescharge or expense (whether absolute, accrued, conditional or otherwise, and whether or not resulting from third party claims), including, without limitation, interest, awards, judgments, penalties, costs, and expenses (including reasonable attorneys’ fees, costs, and other out-of-pocket expenses incurred in investigating, preparing, or defending the foregoing) (hereinafter collectively, “Losses”) to the extent arising out of or resulting from:penalties and
(i) any breach of any representation or warranty made by or on behalf of the Company, the Sellers, or Representative contained any Seller in this Agreement or in any Ancillary Agreements schedule hereto or any certificate certificate, document or other instrument delivered pursuant hereto, excluding representations and warranties made in connection herewith (other than in Section 3.15, the breach of which results in a payment of additional Taxes3.20);
(ii) any breach in any representation or warranty made by any Seller in Section 3.20 of this Agreement or in any schedule hereto or certificate, document or other instrument delivered in connection herewith relating to Section 3.20 (in the case of any such representation or warranty, without taking into account any qualification as to materiality or knowledge contained in such representation or warranty);
(iii) any breach of any covenant or agreement made by the Sellers or Representative contained in any Seller under this Agreement or in any Ancillary Agreement that survives Closing;
(iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by the Company schedule hereto or any Subsidiary on certificate, document or prior to other instrument delivered in connection herewith (other than any of the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third partiesEmployment Agreements);
(iv) any and all reasonable attorneys’ fees and excess of the actual Closing Indebtedness over the amount of the Closing Indebtedness which is utilized for determining the Purchase Price pursuant to Section 1.2 hereof;
(v) any failure of any Seller to bear any cost or expenses and costs required to be borne by any Seller pursuant to Section 5.7 hereof;
(vi) any amount to be paid by the Sellers to the Buyer in accordance with Section 5.1.1.3 hereof;
(vii) any event or condition occurring or existing prior to the Closing in respect of investigation and litigation incurred by the Profit Sharing Plan, including, without limitation, any such event or condition occurring or existing as a Buyer Indemnified Party result of, relating to, in enforcing its rights connection with or from any act or failure to act prior to the Closing of any Seller or the Company or any participant, administrator, trustee or other fiduciary of the Profit Sharing Plan;
(viii) the termination, or employment thereof, of Glovxx Xxxxx; xx
(ix) any of the matters set forth on Schedules 3.17, 3.20 or 3.22.
9.2.2 Notwithstanding the foregoing, to the extent indemnification is sought under Section 9.2.1(i) hereof with respect to any breach of any representation or warranty, (i) no claim shall be made under this Section but only if 9.2 and no Seller shall be liable for indemnification with respect thereto unless and until the Seller Indemnifying Parties are ultimately liable to indemnify the Buyer Indemnified Parties for the Loss at issue.
(b) Anything in this Agreement to the contrary notwithstanding:aggregate amount of Indemnifiable Losses arising under
(i) each Seller Indemnifying Party alone will exceeds one percent (1%) of the Purchase Price, in which case, the Sellers shall only be liable responsible for any breach amounts in excess of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered 1% of the Indemnifying Party Purchase Price (as defined below the "Indemnification Basket"), and for purposes of this Article VIII) for such purpose; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder (except for actual fraud) shall Sellers be liable with respect to a matter Indemnifiable Losses arising under Section 9.2.1(i) hereof for more than ten percent (A10%) specifically identified in any Financial Statements or Interim Financial Statements, or (B) for which there is a reserve or accrual intended to cover such matter in the Closing Balance Sheet (but only up to of the amount of such reserve consideration received by them under this Agreement (the "Indemnification Cap"); provided, however, that the foregoing limitations shall not apply to any claim made with respect to the breach of any representation or accrual not otherwise relieved by other matters)warranty set forth in Sections 3.3, 3.20, 3.22 or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II3.
Appears in 1 contract
Indemnification by the Sellers. (a) Subject From and after the Closing, subject to the other provisions of this Article VIII, including Section 8.5 belowVII, the Sellers shall jointly and their heirsseverally indemnify Apollo and its officers, successorsdirectors, employees and assigns Affiliates (collectively, the “Seller Indemnifying Indemnified Apollo Parties”) will save, defend, indemnify), and hold each of them harmless Buyer and its successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against against, any and all lossesactions, suits, proceedings, demands, assessments, judgments, claims, liabilities, losses (including losses arising from the diminution of value), costs, damages, liabilitiesexpenses, deficiencies, claims, interest, awards, judgments, interest or penalties, costs, and expenses (including reasonable attorneys’ fees, costsexpenses and disbursements, and other out-of-pocket expenses incurred in investigating, preparing, whether or defending the foregoing) not resulting from a Third Party Claim (hereinafter collectively, “LossesDamages”) to the extent ), suffered, paid or incurred by such Indemnified Apollo Party arising out of of, resulting from or resulting from:
caused by: (i) any breach of any of the representations and warranties (read without giving effect to any qualifications regarding materiality, Material Adverse Effect or similar qualifications other than with respect to the representations in Section 2.6 and Section 2.9(a)) made by the Sellers in Article II, or in any certificate or other document delivered in connection with this Agreement, as if such representation or warranty was made by or on behalf as of the Company, Closing (except in the Sellers, or Representative contained in this Agreement or any Ancillary Agreements or any certificate delivered pursuant hereto, excluding case of representations and warranties made which by their terms speak only as of a specific date or dates, in Section 3.15which case as of such date or dates), the breach of which results in a payment of additional Taxes;
(ii) any breach by a Seller of any covenant or agreement by the Sellers or Representative of such Seller contained in this Agreement or any Ancillary Agreement that survives Closing;
Agreement, (iii) any obligations or liabilities relating to or arising from any product liability or warranty claims based on products or services sold by matter described in Section 7.1(a)(iii) of the Company or any Subsidiary on or prior to the Closing Date (except to the extent that any Buyer Indemnified Party collects reimbursements for such losses from insurance proceeds or from indemnification payments received from one or more third parties);
Seller Disclosure Letter, (iv) the Excluded RCS Business or any other businesses operated or conducted by the Sellers and all reasonable attorneys’ fees and expenses and costs its Subsidiaries (other than the Subject Companies), (v) any matter described in Section 7.1(a)(v) of investigation and litigation incurred by a Buyer Indemnified Party in enforcing its rights under this Section but only if the Seller Indemnifying Parties are ultimately liable Disclosure Letter, (vi) the Pre-Closing Restructuring Actions, (vii) any FINRA Burdensome Condition (provided, however, that the obligation to indemnify for any FINRA Burdensome Condition shall not apply if Apollo has exercised its right under the Buyer Indemnified Parties for second sentence of Section 5.2(i)), and (viii) any New Disclosure that would entitle Apollo to terminate the Loss at issueAgreement pursuant to Section 4.5.
(b) Anything in this Agreement Notwithstanding anything to the contrary notwithstanding:contained in this Section 7.1, except with respect to actual fraud or breaches of Fundamental Representations (and, for the avoidance of doubt, Section 2.11, the indemnification for which shall be governed under Article VIII), as to which the limitations in this Section 7.1(b) shall not apply, the Indemnified Apollo Parties shall be entitled to indemnification for breaches of representations and warranties pursuant to Section 7.1(a)(i):
(i) each Seller Indemnifying Party alone will only if, and then only to the extent that, the aggregate Damages to all Indemnified Apollo Parties (without duplication), with respect to all claims for indemnification pursuant to Section 7.1(a)(i), exceed $500,000 (the “Deductible”), whereupon (subject to the provisions of clause (ii) below) the Sellers shall be liable for any breach obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of a representation as to itself or a covenant or obligation to be performed by it under this Agreement or any Ancillary Agreement. Each such Seller Indemnifying Party will be considered the Indemnifying Party (as defined below and for purposes amount of this Article VIII) for such purposethe Deductible; and
(ii) in no event will any Seller Indemnifying Parties have any liability hereunder only with respect to claims for indemnification in respect of which notice of the inaccuracy or breach giving rise to such claim shall have been given to RCAP on or before the date that is eighteen (18) months after the Closing Date (other than claims for indemnification arising from a matter breach of any Fundamental Representation, which must be asserted by the Indemnified Apollo Parties not later than sixty days following the expiration of the relevant statute of limitations). In addition, the Sellers shall not be liable for indemnification pursuant to Section 7.1(a)(i) with respect to any Damages suffered, paid or incurred by an Indemnified Apollo Party of less than $20,000 (A) specifically identified in any Financial Statements or Interim Financial Statementsa “De Minimis Damage”), or and all De Minimis Damages shall be disregarded for purposes of the Deductible (B) for which there is a reserve or accrual intended to cover such matter it being understood and agreed that in the Closing Balance Sheet event any Damage is greater than the threshold for a De Minimis Loss, no portion of such Damage shall be disregarded pursuant to this sentence.
(c) Notwithstanding anything to the contrary contained in this Section 7.1, the Indemnified Apollo Parties shall be entitled to indemnification pursuant to Section 7.1(a)(iii) only if, and then only to the extent that, the aggregate Damages to all Indemnified Apollo Parties (without duplication), with respect to all claims for indemnification pursuant to Section 7.1(a)(iii), exceed $1,000,000, whereupon the Sellers shall be obligated to pay in full all such amounts but only up to the amount extent such aggregate Damages are in excess of such reserve or accrual not otherwise relieved by other matters), or (C) if such matter was included in determining the Adjusted Purchase Price pursuant to Article II$1,000,000.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (RCS Capital Corp)
