Indemnification by the Shareholders. Subject to the terms of this Article 8, from and after the Closing, each of Xxxxx and the Xxxxx Trust (jointly and severally as between Xxxxx and the Xxxxx Trust) and Xxxxx (severally and not jointly as between Xxxxx on one hand and Xxxxx and the Xxxxx Trust on the other) shall indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, members, employees, successors and permitted assigns (collectively, the “Buyer Indemnified Persons”) and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of: (a) any breach or inaccuracy of any representation or warranty made by such Shareholder in this Agreement or in any certificate delivered by such Shareholder at the Closing pursuant hereto; (b) any breach of any covenant or agreement of such Shareholder contained in this Agreement; (c) any breach or inaccuracy of any representation or warranty made by the Company in this Agreement or in any certificate delivered by the Company at the Closing pursuant hereto; (d) any breach of any covenant or agreement (if to be performed prior to the Closing) of the Company contained in this Agreement; (e) any Loss attributable to (i) any Pre-Closing Tax Period Taxes (or nonpayment thereof), (ii) any Pre-Closing Straddle Period Taxes (or nonpayment thereof), (iii) any Tax described in Section 6.12(c) hereof, (iv) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company or any subsidiary was a member prior to the Closing Date, and (v) any and all Taxes of any Person imposed on the Company as a transferee or successor, by contractor or pursuant to any law, which Taxes relate to an event or transaction occurring prior to Closing, in the case of each of the foregoing, only to the extent not reserved or accrued on the Company’s Financial Statements; (f) any Funded Indebtedness existing at Closing (except to the extent discharged in full at the Closing); (g) any Company Transaction Expenses existing at Closing (except to the extent discharged in the full at the Closing); and (h) the items specifically set forth on Section 8.2(h) of the Disclosure Schedule.
Appears in 1 contract
Samples: Stock Purchase Agreement (DSW Inc.)
Indemnification by the Shareholders. Subject to (a) Each of the terms of this Article 8----------------------------------- Shareholders agrees, from and after the Closing, each of Xxxxx and the Xxxxx Trust (jointly and severally as between Xxxxx and the Xxxxx Trust) and Xxxxx (severally and not jointly as between Xxxxx on one hand and Xxxxx and the Xxxxx Trust on the other) shall severally, to indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, members, employees, successors and permitted assigns (collectively, the “Buyer Indemnified Persons”) and hold them harmless each Buyer Group Member from and against any and all Losses and Expenses incurred or suffered by a such Buyer Indemnified Person resulting from Group Member in connection with or arising out offrom:
(ai) any breach by a Shareholder of any of his covenants in this Agreement (other than Section 6.2 or 6.4(a)) or any breach ----------- ------ by the Trust or any RPM Shareholder of any of their respective covenants (other than Section 6.2 or 6.4(a) of each such Other Acquisition Agreement) in the Other Acquisition Agreements;
(ii) any failure of a Shareholder to perform any of his obligations (other than Section 6.2 or 6.4(a)) in this Agreement ----------- ------ or any failure by the Trust or any RPM Shareholder to perform any of their respective obligations (other than Section 6.2 or 6.4(a) of each such Other Acquisition Agreement) in the Other Acquisition Agreements;
(iii) any breach of Section 6.2 or 6.4(a) or of any warranty ----------- ------ or the inaccuracy of any representation of the Shareholders contained or warranty made by such Shareholder referred to in this Agreement or in any certificate delivered by such Shareholder at or on behalf of the Closing Shareholders pursuant hereto;
(biv) any breach of Section 6.2 or 6.4(a) or of any covenant warranty or agreement of such Shareholder contained in this Agreement;
(c) any breach or the inaccuracy of any representation of the Trust or warranty made by any RPM Shareholder contained or referred to in the Company in this Agreement Other Acquisition Agreements or in any certificate delivered by or on behalf of the Company at the Closing Trust or any RPM Shareholder pursuant hereto;thereto; or
(dv) any breach of any covenant or agreement the Excluded Assets (if to be performed prior other than pursuant to the ClosingLease Agreements) (as defined in the Emson Acquisition Agreement).
(b) Notwithstanding the foregoing Section 10.1(a), the Shareholders --------------- shall be required to indemnify and hold harmless under clauses (iii) and (iv) of Section 10.1(a) with respect to Losses and Expenses (without duplication) --------------- incurred by Buyer Group Members only if such Losses and Expenses (together with any Losses and Expenses incurred by Buyer Group Members under clauses (iii) and (iv) of Section 10.1(a) of the Company contained Other Acquisition Agreements) exceed $600,000 in this Agreement;
(e) any Loss attributable the aggregate, but if in excess of such amount, then for the entire amount of such Losses and Expenses without deduction. In addition, the Shareholders shall be required to (i) any Pre-Closing Tax Period Taxes (or nonpayment thereof), (ii) any Pre-Closing Straddle Period Taxes (or nonpayment thereof), indemnify and hold harmless under clauses (iii) any Tax described in Section 6.12(c) hereof, and (iv) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company or any subsidiary was a member prior Section 10.1(a) with respect to the Closing Date, Losses and Expenses (vwithout duplication) any and all Taxes of any Person imposed on the Company as a transferee or successor, --------------- incurred by contractor or pursuant to any law, which Taxes relate to an event or transaction occurring prior to Closing, in the case of each of the foregoing, Buyer Group Members only to the extent not reserved or accrued on the Company’s Financial Statements;
such Losses and Expenses (ftogether with any Losses and Expenses incurred by Buyer Group Members under clauses (iii) any Funded Indebtedness existing at Closing and (except to the extent discharged in full at the Closing);
(giv) any Company Transaction Expenses existing at Closing (except to the extent discharged in the full at the Closing); and
(h) the items specifically set forth on of Section 8.2(h10.1(a) of the Disclosure Schedule.Other Acquisition Agreements) do not exceed $18 million in the aggregate. The limitations in this Section ------- 10.1
Appears in 1 contract
Indemnification by the Shareholders. Subject (a) Each of the shareholders will severally indemnify, hold harmless and defend Buyer, Merger Sub and the Surviving Corporation, together with their respective successors and assigns (the “Buyer Indemnities”), from, against and with respect to any and all damage, loss, deficiency, expense (including any reasonable attorney fees or expenses), action, suit, proceedings, demand, assessment or judgment to or against Buyer, Merger Sub or the Surviving Corporation including any punitive, exemplary or consequential damages (but only to the terms extent such punitive, exemplary or consequential damages are contained as part of this Article 8, from and after the Closing, each of Xxxxx and the Xxxxx Trust (jointly and severally as between Xxxxx and the Xxxxx Trustan award to a third party) and Xxxxx (severally and not jointly as between Xxxxx on one hand and Xxxxx and the Xxxxx Trust on the other) shall indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, members, employees, successors and permitted assigns (collectively, the “Buyer Indemnified PersonsLoss”) and hold them harmless from and against any and all Losses incurred or suffered by as a Buyer Indemnified Person resulting from or result of, arising out ofof or in connection with:
(a1) any breach or inaccuracy violation by Seller or the Shareholders of any representation of their representations, warranties, forbearances or warranty made by such Shareholder covenants contained in this Merger Agreement;
(2) any breach, violation, or nonperformance by Seller or the Shareholders of any of their covenants or agreements contained in this Merger Agreement, including the payment of any Post-closing Adjustment Amount; or
(3) fees and expenses of any broker, investment banker or other advisor engaged by Seller or the Shareholders in connection with the execution of this Merger Agreement or in any certificate delivered by such Shareholder at consummation of the Closing transactions contemplated hereby, other than Seller’s Transaction Expenses to the extent deducted from the Initial Consideration pursuant hereto;to Section 2.02(b)(2) hereof.
(b) Notwithstanding the above Section 8.02(a) or any breach of any covenant or agreement of such Shareholder contained other provision in this Agreement;
(c) any breach or inaccuracy of any representation or warranty made by the Company in this Merger Agreement or in any certificate delivered by the Company at the Closing pursuant hereto;
(d) any breach of any covenant or agreement (if to be performed prior to the Closingcontrary, the shareholders shall not have any obligation to indemnify the Buyer Indemnities with respect to clause Section 8.02(a)(1) above, until the aggregate amount of Buyer Losses by reason of all such breaches exceeds Five Hundred Thousand and No/100 Dollars ($500,000.00) (the Company contained in this Agreement;
(e) “Deductible”), and then only for the amount by which the aggregate amount of Buyer Losses exceeds the Deductible; provided, however, that the Deductible shall not apply to any Loss attributable to Buyer Losses resulting from (i) any Pre-Closing Tax Period Taxes (fraud of Seller, its Subsidiaries or nonpayment thereof), any Shareholder or (ii) any Pre-Closing Straddle Period Taxes (expenditure not made in a manner consistent with Section 3.01(n). Notwithstanding the above Section 8.02(a) or nonpayment thereof)any other provision in this Merger Agreement to the contrary, (iii) any Tax described in Section 6.12(c) hereof, (iv) all Taxes shareholders will have no obligation to indemnify Buyer Indemnities from and against Buyer Losses to the extent Buyer Losses exceed the balance of any member of an affiliatedundistributed Escrow Amount held by the Escrow Agent, consolidated, combined or unitary group of which including interest thereon (the Company or any subsidiary was a member prior “Indemnification Cap”). In addition to the Closing Dateforegoing indemnity by the shareholders of Seller to be funded by the Escrow Amount, and (v) any and all Taxes of any Person imposed on the Company as a transferee or successor, by contractor or pursuant to any law, which Taxes relate to an event or transaction occurring prior to ClosingShareholders agree that, in the case of each fraud by the Seller, its Subsidiaries or any of the foregoingShareholders, only the Shareholders will jointly and severally indemnify and hold harmless Buyer for any amount of Buyer Losses resulting from any such fraud by Seller, its Subsidiaries or any of the Shareholders that are in excess of, or otherwise not collectible from, the Escrow Amount, and that such indemnification by the Shareholders shall not be limited to the extent not reserved Escrow Amount or accrued on the Company’s Financial Statements;
(f) any Funded Indebtedness existing at Closing (except Indemnification Cap nor be subject to the extent discharged in full at Deductible, but the Closing);
(g) any Company Transaction Expenses existing at Closing (except to liability of each Shareholder shall not exceed the extent discharged in the full at the Closing); and
(h) the items specifically set forth on Section 8.2(h) total amount of the Disclosure ScheduleMerger Consideration received by such Shareholder.
Appears in 1 contract
Samples: Merger Agreement (Rexnord LLC)
Indemnification by the Shareholders. Subject to (a) Each of the terms of this Article 8----------------------------------- Shareholders agrees, from and after the Closing, each of Xxxxx and the Xxxxx Trust (jointly and severally as between Xxxxx and the Xxxxx Trust) and Xxxxx (severally and not jointly as between Xxxxx on one hand and Xxxxx and the Xxxxx Trust on the other) shall severally, to indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, members, employees, successors and permitted assigns (collectively, the “Buyer Indemnified Persons”) and hold them harmless each Buyer Group Member from and against any and all Losses and Expenses incurred or suffered by a such Buyer Indemnified Person resulting from Group Member in connection with or arising out offrom:
(ai) any breach by a Shareholder of any of his covenants in this Agreement (other than Section 6.2 or 6.4(a)) or any breach ----------- ------ by the Trust or any Xxxxxxx Shareholder of any of their respective covenants (other than Section 6.2 or 6.4(a) of each such Other Acquisition Agreement) in the Other Acquisition Agreements;
(ii) any failure of a Shareholder to perform any of his obligations (other than Section 6.2 or 6.4(a)) in this Agreement ----------- ------ or any failure by the Trust or any Xxxxxxx Shareholder to perform any of their respective obligations (other than Section 6.2 or 6.4(a) of each such Other Acquisition Agreement) in the Other Acquisition Agreements;
(iii) any breach of Section 6.2 or 6.4(a) or of any warranty ----------- ----- or the inaccuracy of any representation of the Shareholders contained or warranty made by such Shareholder referred to in this Agreement or in any certificate delivered by such Shareholder at or on behalf of the Closing Shareholders pursuant hereto;
(biv) any breach of Section 6.2 or 6.4(a) or of any covenant warranty or agreement the inaccuracy of any representation of the Trust or any Xxxxxxx Shareholder contained or referred to in the Other Acquisition Agreements or any certificate delivered by or on behalf of the Trust or any Xxxxxxx Shareholder pursuant thereto; or
(v) the Excluded Assets (other than pursuant to the Lease Agreements) (as defined in the Emson Acquisition Agreement).
(b) Notwithstanding the foregoing Section 10.1(a), the Shareholders --------------- shall be required to indemnify and hold harmless under clauses (iii) and (iv) of Section 10.1(a) with respect to Losses and Expenses (without duplication) --------------- incurred by Buyer Group Members only if such Losses and Expenses (together with any Losses and Expenses incurred by Buyer Group Members under clauses (iii) and (iv) of Section 10.1(a) of the Other Acquisition Agreements) exceed $600,000 in the aggregate, but if in excess of such Shareholder contained amount, then for the entire amount of such Losses and Expenses without deduction. In addition, the Shareholders shall be required to indemnify and hold harmless under clauses (iii) and (iv) of Section 10.1(a) with respect to Losses and Expenses (without duplication) --------------- incurred by Buyer Group Members only to the extent such Losses and Expenses (together with any Losses and Expenses incurred by Buyer Group Members under clauses (iii) and (iv) of Section 10.1(a) of the Other Acquisition Agreements) do not exceed $18 million in the aggregate. The limitations in this Section 10.1(b) shall not apply to the extent related to Sections 4.1(a), --------------- --------------- 4.1(b), 4.2, 4.3, 4.7 or 4.22 of this Agreement;, Sections 4.1(a), 4.1(b), 4.2, ------ --- --- --- ---- --------------- ------ --- 4.3, 4.7 or 4.22 in the Other Acquisition Agreements or Section 4.12(i) of the --- --- ---- Emson Acquisition Agreement. The Shareholders shall in no event be required to indemnify and hold harmless under clause (iv) of Section 10.1(a) as it relates -------------- to a breach or inaccuracy of the third sentence of Section 4.12(i) of the Emson Acquisition Agreement with respect to Losses and Expenses incurred by Buyer Group Members in excess of $350,000.
(c) any breach or inaccuracy of any representation or warranty The indemnification provided for in this Section 10.1 shall ------------ terminate two years after the Closing Date (and no claims shall be made by any Buyer Group Member under this Section 10.1 thereafter), except that the Company ------------ indemnification by the Shareholders shall continue as to:
(i) the representations and warranties set forth in Sections -------- 4.1(a), 4.1(b), 4.2, 4.3 and 4.22 and the covenants of the ------ ----- --- --- ---- Shareholders set forth in Sections 7.2, 7.4, 7.5, 7.6 and 7.7, as ------------ --- --- --- --- to all of which no time limitation shall apply;
(ii) the representations and warranties set forth in Sections 4.1(a), 4.1(b), 4.2, 4.3 and 4.22 and the covenants of the Trust and the Xxxxxxx Shareholders, as applicable, set forth in Sections 7.2, 7.4, 7.5, 7.6, 7.7 and 10.5 in the Other Acquisition Agreements and the covenants of the Trust set forth in Section 7.8 of the Emson Acquisition Agreement, as to all of ----------- which no time limitation shall apply;
(iii) the representations and warranties set forth in Sections 4.7 and 4.18 and the covenants of the Shareholders set ------------ ---- forth in Article IX, as to which the indemnification provided for ---------- in this Agreement Section 10.1 shall terminate thirty (30) days after the ------------ expiration of all applicable statutes of limitations relating thereto (taking into account any extensions or tollings thereof);
(iv) the representations and warranties set forth in Sections 4.7 and 4.18 in the Other Acquisition Agreements and the covenants of the Trust and the Xxxxxxx Shareholders, as applicable, set forth in Article IX in the Other Acquisition Agreements, as to which the indemnification provided for in this Section 10.1 shall terminate thirty (30) days after the ------------ expiration of all applicable statutes of limitations relating thereto (taking into account any certificate delivered by extensions or tollings thereof);
(v) the Company at matter referred to in Section 10.1(a)(v), as to ------------------ which no time limitation shall apply;
(vi) the Closing covenant set forth in Section 7.1, as to which the ----------- indemnification provided for in this Section 10.1 or Section 7.1 ------------ of the Other Acquisition Agreements shall terminate one year after the expiration of the noncompetition period provided for therein; and
(vii) any Loss or Expense of which any Buyer Group Member has notified the Shareholders in accordance with the requirements of Section 10.3 on or prior to the date such indemnification ------------ would otherwise terminate in accordance with this Section 10.1, ------------ as to which the obligation of the Shareholders shall continue until the liability of the Shareholders shall have been determined pursuant hereto;to this Article X, and the Shareholders shall --------- have reimbursed all Buyer Group Members for the full amount of such Loss and Expense in accordance with this Article X. ---------
(d) any breach It is understood and agreed by the parties that in determining the amount of any covenant Losses or agreement Expenses (if to be performed prior to the Closingbut not for purposes of determining whether any breach, failure or inaccuracy has arisen) of the Company contained in this Agreement;
(e) any Loss attributable to (i) any Pre-Closing Tax Period Taxes (or nonpayment thereof), (ii) any Pre-Closing Straddle Period Taxes (or nonpayment thereof), (iii) any Tax described in Section 6.12(c) hereof, (iv) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company or any subsidiary was a member prior to the Closing Date, and (v) any and all Taxes of any Person imposed on the Company as a transferee or successor, incurred by contractor or Buyer Group Members pursuant to this Section 10.1, any law, which Taxes relate to an event "materiality," "Material Adverse ------------ Effect" or transaction occurring prior to Closing, in the case of each of the foregoing, only to the extent like qualifiers shall not reserved or accrued on the Company’s Financial Statements;
(f) any Funded Indebtedness existing at Closing (except to the extent discharged in full at the Closing);
(g) any Company Transaction Expenses existing at Closing (except to the extent discharged in the full at the Closing); and
(h) the items specifically set forth on Section 8.2(h) of the Disclosure Schedulebe taken into account.
Appears in 1 contract
Samples: Merger Agreement (Aptargroup Inc)
Indemnification by the Shareholders. Subject to Sections 9.1 and 9.5, the terms of this Article 8Shareholders (other than those holding Dissenting Shares), from and after severally (i.e., based on the Closing, each of Xxxxx and the Xxxxx Trust (jointly and severally as between Xxxxx and the Xxxxx TrustPro Rata Share) and Xxxxx (severally and not jointly as between Xxxxx on one hand and Xxxxx and the Xxxxx Trust on the other) jointly, shall indemnify Buyer and its Affiliates hold harmless the Acquiror, the Acquiror Sub and their respective officers, directors, shareholders, members, employees, successors directors and permitted assigns Affiliates (collectively, the “Buyer Acquiror Indemnified PersonsParties”) and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from them related to, or arising directly or indirectly out of:
(a) any inaccuracy or breach or inaccuracy of any a representation or warranty made by such Shareholder of the Company contained in this Agreement or the Company Documents or contained in a certificate of any certificate officer of the Company delivered by such Shareholder at the Closing pursuant heretothereto;
(b) any breach of any covenant or agreement obligation of such Shareholder the Company contained in this AgreementAgreement or the Company Documents, including for the avoidance of doubt Section 2.3 and any material uncured breach of the Operating Guidelines (subject to any applicable limitations set forth in Section 2.3);
(c) any breach liability or inaccuracy obligation related to Closing Date Indebtedness, Xxxxx Advance or Unsatisfied Transaction Costs in excess of any representation or warranty made by the Company amount set forth in this Agreement or in any certificate delivered by the Company at the Closing pursuant heretoStatement;
(d) any breach of any covenant or agreement (if to be performed prior to the Closing) and all Taxes of the Company contained in this Agreement;
(e) with respect to Pre-Closing Tax Periods and the portion of any Loss attributable to Straddle Period ending on the Closing Date and any and all Tax claims resulting from, arising out of or relating to: (i) any Taxes imposed on the Company with respect to any Pre-Closing Tax Period Taxes (or nonpayment thereof)and the portion of any Straddle Period ending on the Closing Date, (ii) any Pre-Closing Straddle Period all liability for Taxes of the Company arising (directly or nonpayment thereof)indirectly) as a result of the transactions contemplated hereunder, (iii) any Tax described inaccuracy of a representation or warranty or breach of any covenant or obligation, in Section 6.12(c) hereofeach case with respect to Taxes set forth herein, (iv) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company or any subsidiary was a member prior to the Closing Date, and (v) any and all Taxes of any Person (other than the Company) imposed on the Company as a transferee or transferee, successor, by contractor contract or pursuant to any law, rule or regulation, which Taxes relate to an event or transaction occurring prior before the Closing Date, and (v) the Transfer Taxes for which the Shareholders are liable pursuant to Closing, Section 5.9(e) hereunder;
(e) any error in the case of each Closing Statement relating to the allocation of the foregoing, only to Merger Consideration among the extent not reserved or accrued on the Company’s Financial Statements;Shareholders; and
(f) any Funded Indebtedness existing at Closing (except fraud or intentional material misrepresentation, including with respect to the extent discharged in full at operation of the Closing);
(g) business following the Closing by the Surviving Company. It is further understood and agreed that notwithstanding any Company Transaction Expenses existing at Closing (several liability set forth above, no Shareholder shall have any liability for any representation, warranty, covenant or agreement that relates specifically to another Shareholder. By way of illustration only, no Shareholder shall be liable for the breach or inaccuracy of the second sentence of Section 3.4 except for the Shareholder for whom such representation was breached or inaccurate and such Shareholder shall be fully liable for such breach or inaccuracy subject to the extent discharged in the full at the Closing); and
(h) the items specifically limitations set forth on Section 8.2(h) of the Disclosure Schedulein this Article IX.
Appears in 1 contract
Indemnification by the Shareholders. Subject to 1.1 Each of the terms Shareholders shall indemnify, defend and hold harmless Talarian and any of this Article 8, from and after the Closing, each of Xxxxx and the Xxxxx Trust (jointly and severally as between Xxxxx and the Xxxxx Trust) and Xxxxx (severally and not jointly as between Xxxxx on one hand and Xxxxx and the Xxxxx Trust on the other) shall indemnify Buyer and its Affiliates and their respective officersRepresentatives, directorsand shall reimburse Talarian and any of its Affiliates and Representatives, shareholderson demand, membersfor any claim, employeesdemand, successors loss, liability, damage or expense including, without limitation, any claim for direct damages, interest, penalties and permitted assigns reasonable attorneys' fees and costs of investigation incurred as a result thereof (collectivelycollectively "Damages"), the “Buyer Indemnified Persons”) and hold them harmless from and against any and all Losses incurred or suffered by a Buyer Indemnified Person resulting from or arising out of:any of the following: 2
(a) any Any breach or inaccuracy default in the performance by WhiteBarn of any representation covenant or warranty made by such Shareholder agreement of WhiteBarn contained in this the Merger Agreement or pursuant to any agreement, certificate or document delivered to Talarian by or on behalf of WhiteBarn in any certificate delivered by such Shareholder at the Closing pursuant heretoconnection therewith;
(b) Any breach of warranty or inaccurate or erroneous representation made by WhiteBarn in the Merger Agreement or pursuant to any agreement, certificate or document delivered to Talarian by or on behalf of WhiteBarn in connection therewith;
(c) Any litigation involving WhiteBarn as of the Closing Date except to the extent described on the Disclosure Schedule and any litigation arising from the conduct of WhiteBarn's business before the Closing;
(d) any breach of warranty or inaccurate or erroneous representation made by WhiteBarn in Section 3.20 Taxes of the Merger Agreement;
(e) Any breach or default in the performance by such Shareholder of any covenant or agreement of such Shareholder contained in Section 11 of this Agreement;
(cf) any Any breach of warranty or inaccuracy of any inaccurate or erroneous representation or warranty made by the Company such Shareholder in this Agreement or in any certificate delivered by the Company at the Closing pursuant hereto;
(d) any breach Section 11 of any covenant or agreement (if to be performed prior to the Closing) of the Company contained in this Agreement;
(e) any Loss attributable to (i) any Pre-Closing Tax Period Taxes (or nonpayment thereof), (ii) any Pre-Closing Straddle Period Taxes (or nonpayment thereof), (iii) any Tax described in Section 6.12(c) hereof, (iv) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company or any subsidiary was a member prior to the Closing Date, and (v) any and all Taxes of any Person imposed on the Company as a transferee or successor, by contractor or pursuant to any law, which Taxes relate to an event or transaction occurring prior to Closing, in the case of each of the foregoing, only to the extent not reserved or accrued on the Company’s Financial Statements;
(f) any Funded Indebtedness existing at Closing (except to the extent discharged in full at the Closing);; and/or
(g) Any breach of warranty or inaccurate or erroneous representation made by WhiteBarn in Section 3.2 Capitalization of WhiteBarn of the Merger Agreement. The Shareholders' obligation to indemnify, defend or hold harmless Talarian and any Company Transaction Expenses existing of its Affiliates and Representatives from any such Damages shall terminate on the First Indemnification Termination Date (as defined below) other than with respect to Damages pursuant to Section 1.1(d) above which shall terminate on the Applicable Indemnification Termination Date (as defined below) (other than with respect to proceedings or claims pending at Closing (except the time of expiration, which shall continue with respect to such proceedings until such proceedings are finally resolved). For purposes of this Agreement, an "Affiliate" of any person means another person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person, where "control" means the extent discharged possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise. The obligation of the Shareholders pursuant to this Section 1.1 shall be several and not joint and shall be shared proportionately among the Shareholders in accordance with their relative "Percentage Interest" in the full at the Closing); and
(h) the items specifically WhiteBarn Shares as set forth on Section 8.2(hSchedule 1.1 hereto (except with respect to subparagraphs (e) of and (f) above, for which, because these subparagraphs relate to each Shareholder individually, responsibility shall not be shared proportionately, but shall be borne entirely by the Disclosure Scheduleapplicable Shareholder).
Appears in 1 contract
Samples: Agreement With Certain Whitebarn Shareholders (Talarian Corp)
Indemnification by the Shareholders. Subject to Section 10.4 and the terms of other terms, conditions and limitations set forth in this Article 810, from and after the Closing, each of Xxxxx and the Xxxxx Trust Shareholder will severally (jointly and severally as between Xxxxx and the Xxxxx Trust) and Xxxxx (severally and not jointly as between Xxxxx on one hand and Xxxxx and severally) indemnify the Xxxxx Trust on the other) shall indemnify Buyer and its Affiliates and their respective officers, directors, shareholders, members, employees, successors and permitted assigns (collectively, the “Buyer Indemnified PersonsParties”) against, and hold them the Buyer Indemnified Parties harmless from and against from, any and all Losses suffered or incurred or suffered by a any Buyer Indemnified Person Party to the extent arising out of or resulting from or arising out ofany of the following:
(a) any breach of or any inaccuracy of any representation or warranty made by such Shareholder in this Agreement or in any certificate delivered by such Shareholder at the Closing pursuant hereto;
(b) any breach of any covenant or agreement of such Shareholder contained in this Agreement;
(c) any breach or inaccuracy of any representation or warranty made by the Company in Article 3 of this Agreement (which will be indemnified by each Shareholder up to such Shareholder’s Pro Rata Share of such Losses) or by a Shareholder in any certificate delivered Article 4 of this Agreement (which will be indemnified solely by the Company at the Closing pursuant heretoShareholder responsible for such breach or inaccuracy);
(db) any breach or non-performance of any covenant covenants or agreement agreements in this Agreement made by such Shareholder (if which will be indemnified solely by the Shareholder responsible for such breach or non-performance), the Shareholder Representative or, in respect of any such covenants or agreements required to be performed prior to or at the Closing) of , the Company contained in this Agreement;Company; and
(ec) any Loss attributable to (i) any Pre-Closing Tax Period Taxes (or nonpayment thereof)of the Company and the Subsidiaries, (ii) (ii) any Pre-Closing Straddle Period Taxes (or nonpayment thereof)of the Shareholders, (iii) all Taxes of any Tax described in Section 6.12(c) hereofother Person for which Company or any of its Subsidiaries is or has been liable as a transferee or successor, (ivor by Contract resulting from events, transactions or relationships occurring or existing prior to and including the Closing Date, (iv) all Taxes of of any consolidated or combined group (or any member of an affiliated, consolidated, combined or unitary group of which thereof other than the Company and its Subsidiaries) of which the Company and/or its Subsidiaries is or any subsidiary was a member on or prior to the Closing DateDate by reason of Treasury Regulations Section 1.1502-6(a) or any analogous or similar foreign, and state or local applicable Law, (v) any and all Taxes the portion of any Person imposed on Transfer Taxes for which the Shareholders are responsible pursuant to Section 11.7, (vi) all COVID Related Deferrals, (vii) any Taxes related to any payments of Company Transaction Expenses or payments of compensation otherwise paid or accrued by the Company as a transferee or successor, by contractor or pursuant in relation to any law, which Taxes relate to an event or transaction occurring prior to Closing, in the case of each consummation of the foregoingtransactions contemplated under this Agreement arising from or by reason of Code Section 280G, only including resulting from any Parachute Payment for which a deduction is disallowed to the extent not reserved Company by reason of Code Section 280G, or accrued on (viii) any Taxes whatsoever arising out of or relating to the PPP Loan, including, for the avoidance of doubt, any amounts for which forgiveness has been sought and the loss of any deductions relating to the use of the proceeds of the PPP Loan;
(d) any Indebtedness of the Company’s Financial Statements;
(e) any Company Transaction Expenses; and
(f) any Funded Indebtedness existing at Closing (except amounts due or payable to any party under or in relation to the extent discharged in full at the Closing);
(g) any Company Transaction Expenses existing at Closing (except to the extent discharged in the full at the Closing); and
(h) the items specifically set forth on Section 8.2(h) of the Disclosure SchedulePPP Loan.
Appears in 1 contract
Samples: Stock Purchase Agreement (Stewart Information Services Corp)
