Indemnification by the Shareholders. The Shareholders (which shall include for purposes of this Article 5, Jack X. Xxxx, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx), xointly and severally, covenant and agree to indemnify, defend, protect and hold harmless DBT, the Surviving Corporation and each Subsidiary (and each of their officers, directors and employees) from, against and in respect of: (a) all liabilities, losses, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, settlement payments, deficiencies, diminution in value, costs and expenses (including without limitation reasonable attorneys' fees and expenses) (collectively, "Claims") suffered, sustained, incurred or paid by DBT, the Surviving Corporation or any Subsidiary (or any of their officers, directors and employees) in connection with, resulting from or arising out of: (i) any breach of any representation or warranty of a Shareholder or the Company set forth in this Agreement or any certificate or other writing delivered by a Shareholder or the Company in connection herewith; (ii) any nonfulfillment or breach of any covenant or agreement on the part of a Shareholder or the Company set forth in this Agreement; (iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law); (iv) the assertion against DBT, the Surviving Corporation, the Company or any Subsidiary of any liability or obligation relating to or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing; (v) any liability or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law to the extent that such liability or obligation relates to or arises out of, in whole or in part, any activity occurring, condition existing, omission to act or other matter existing at or prior to the Closing; (vi) any liability or obligation (including all taxes, penalties and interest) which relates to, or which involves a claim, liability or obligation against the Company arising out of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or (vii) any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, such demands made pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes of this Section 5.1 (a) (vii) only, that the Shareholders shall be, jointly and severally, responsible and liable for 75% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); and (b) any and all actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to any of the foregoing or to the enforcement of this Section 5.1; provided, that, except as otherwise provided in Section 5.5 hereof and except for Claims in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Consideration.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (DBT Online Inc)
Indemnification by the Shareholders. The Subject to the provisions hereof, the Shareholders will severally, on a pro rata basis based on the portion of the Arrangement Consideration received by each of them (which shall include for purposes of this Article 5each such Shareholder’s pro rata share, Jack X. Xxxx, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxxa “Pro Rata Share”), xointly and severally, covenant and agree to indemnify, defend, protect and hold harmless DBT, the Surviving Corporation and each Subsidiary (and each of as to clause (4) below severally), indemnify the Parent and Canadian Sub and their officers, directors directors, employees, agents and employeesaffiliates (collectively, the “Parent Indemnified Parties”) and defend and hold the Parent Indemnified Parties harmless from and against any loss, liability, damage or expense (“Acquiror Losses”) (including reasonable legal fees and expenses and any other reasonable costs or expenses incurred by the Parent Indemnified Parties whether as a result of being named as a party in any proceeding or the investigation by the Parent Indemnified Parties in determining the existence and amount of any Losses) suffered or incurred by such Parent Indemnified Parties by reason of or arising out of or resulting from, against and in respect of:
(a) all liabilities, losses, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, settlement payments, deficiencies, diminution in value, costs and expenses (including without limitation reasonable attorneys' fees and expenses) (collectively, "Claims") suffered, sustained, incurred or paid by DBT, the Surviving Corporation or any Subsidiary (or any of their officers, directors and employees) in connection with, resulting from or arising out of:
(i1) any breach of any representation or warranty (without giving effect to any qualification as to materiality or Company Material Adverse Effect or similar qualification contained therein) of a Shareholder the Company or the Company set forth Shareholders contained in this Agreement or in any certificate or other writing delivered by a Shareholder or the Company in connection herewith;
(ii2) any nonfulfillment breach, partial or breach total, of any covenant or covenant, agreement on the part of a Shareholder or the Company set forth in this Agreement;
(iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, the Company or any Subsidiary of any liability or obligation relating to or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except contained in this Agreement to the extent such liabilities and obligations are reflected in the 1998 Financial Statements)covenant, or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(v) any liability agreement or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law required to be performed by the extent that such liability or obligation relates to or arises out of, in whole or in part, any activity occurring, condition existing, omission to act or other matter existing at Company on or prior to the Closing;
(vi3) the amount (the “Working Capital Shortfall”), by which any cash dividend after the date of this Agreement and on or prior to the Closing Date exceeds the amount of Distributable Capital (determined as provided in Section 5.1(a)(14) of the Company Disclosure Letter and assuming for purposes of this clause (3) that current liabilities includes all Expenses and that current assets does not include any amount in respect of Broker Warrants; and
(4) any liability breach by such Shareholder of any representation or obligation warranty of the Company contained in the Letter of Transmittal submitted by such Shareholder; (including all taxesclauses (1), penalties (2), (3) and interest(4) above being referred to herein together as the “Company Breaches” and clause (4) being separately referred to herein as a “Shareholder Breach”), provided that the Shareholders shall not be required to indemnify or save harmless the Parent from any Company Breaches unless a Claim Notice in respect thereof shall have been provided to the Shareholders’ Representative (and in the case of a Shareholder Breach, written notice in respect thereof (a “Shareholder Claim Notice”) shall have been mailed to the relevant Shareholder at the address provided therefor in the Letter of Transmittal or such other address of which relates tothe Shareholder has given notice to the Parent in accordance with Section 11.1 (or if no such address is provided, care of the Company’s then principal address)) in accordance with this Article IX on or which involves a prior to the General Termination Date or, in the case of any claim, liability proceeding or obligation against the Company arising out of or other matter based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1a breach of a representation and warranty, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) any liability on or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, on which such demands made representation and warranty terminates pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes of this Section 5.1 (a) (vii) only, that the Shareholders shall be, jointly and severally, responsible and liable for 75% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); and
(b) any and all actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to any of the foregoing or to the enforcement of this Section 5.1; provided, that, except as otherwise provided in Section 5.5 hereof and except for Claims in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Consideration9.1.
Appears in 1 contract
Samples: Arrangement Agreement (Thomas Weisel Partners Group, Inc.)
Indemnification by the Shareholders. The Shareholders (which shall include for purposes of Subject to the provisions and limitations set forth in this Article 5IX, Jack X. Xxxxfrom and after the Closing, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx), xointly and severally, covenant and agree to indemnify, defend, protect each Shareholder shall indemnify and hold harmless DBTthe Purchaser, the Surviving Corporation and each Subsidiary (and each of their its officers, directors and employeesaffiliates (as "affiliate" is defined in Rule 12b-2 of the Exchange Act) from(the "PURCHASER INDEMNIFIED PARTIES") harmless from and against, against and shall reimburse, on a net after-tax, after-insurance basis (after taking into account any Taxes imposed on the receipt of the reimbursement and any Tax benefits actually utilized in respect of:
(a) reducing its Taxes and without duplicating any amounts previously reflected in the Working Capital calculation used to determine the Base Amount or any adjustment thereto pursuant to Section 2.5), the Purchaser Indemnified Parties for, any and all liabilities, losses, claims, damages, actionsdebts, suitsliabilities, proceedingsobligations, demandsjudgments, assessmentsorders, adjustmentsawards, settlement paymentswrits, deficienciesinjunctions, diminution in valuedecrees, fines, penalties, Taxes, costs and or expenses (including without limitation reasonable attorneys' fees and expenses) (collectively, "ClaimsLOSSES") suffered, sustained, incurred or paid by DBT, the Surviving Corporation or any Subsidiary (or any of their officers, directors and employees) in connection with, resulting from or arising out of:
of (i) any inaccuracy or misrepresentation in, or breach of of, any representation or warranty of a Shareholder or made by the Company set forth or such Shareholder in this Agreement or in any certificate or other writing delivered by a Shareholder or the Company in connection herewith;
Ancillary Document; (ii) any nonfulfillment or breach of any covenant or agreement on the part of a Shareholder or the Company set forth in this Agreement;
(iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, failure by the Company or any Subsidiary of any liability such Shareholder to perform or obligation relating to or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(v) any liability or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law to the extent that such liability or obligation relates to or arises out ofcomply, in whole or in part, with any activity occurring, condition existing, omission to act covenant or other matter existing at agreement in this Agreement or prior in any Ancillary Document; (iii) any claim by any employee or former employee listed on Section 3.3(c) of the Company Disclosure Schedule to the Closing;
(vi) any liability extent based upon such employee's or obligation (including all taxesformer employee's having an option, penalties and interest) which relates toright or interest in, or which involves a claimany right to receive an option, liability right or obligation against the Company arising out of or based upon interest in any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any equity securities of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (includingPROVIDED, without limitationHOWEVER, such demands made pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes of under this Section 5.1 clause (aiii) (vii) only, that the Shareholders shall be, jointly and severally, responsible and liable for 75% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability conditioned upon the Purchaser having complied with its covenant under Section 7.8; or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); and
(biv) any and all actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident liability for withholding Taxes imposed with respect to any of the foregoing or Purchase Consideration payable to the enforcement of this Section 5.1; provided, that, except as otherwise provided in Section 5.5 hereof and except for Claims in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger ConsiderationShareholder.
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders (which shall include for purposes of this Article 5, Jack X. Xxxx, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx), xointly and severally, covenant and agree to not jointly, shall indemnify, defend, protect defend and hold harmless DBTParent, Acquisition Subsidiary, the Surviving Corporation Company and each Subsidiary (and each of their respective officers, directors directors, employees, agents, subsidiaries and employees) from, affiliates harmless from and against any and in respect of:
(a) all liabilities, losses, damages, claims, damagesfines, actions, suits, proceedings, demands, assessments, adjustments, settlement payments, deficiencies, diminution in valuepenalties, costs and expenses (including expenses, including, without limitation limitation, reasonable attorneys' and accounting fees and expenses) (collectively, "ClaimsLosses") sufferedincurred by Parent, sustained, incurred or paid by DBTAcquisition Subsidiary, the Surviving Corporation or any Subsidiary (Company or any of their respective officers, directors and directors, employees) in connection with, agents, subsidiaries or affiliates, arising out of or resulting from or arising out of:
(i) any breach of any representation or warranty of a Shareholder made by the Company or the Company set forth Shareholders contained in this Agreement or any certificate or other writing delivered by a Shareholder or the Company in connection herewith;
Agreement, and (ii) any nonfulfillment the nonperformance or breach of any covenant covenant, agreement or agreement on the part of a Shareholder or the Company set forth in this Agreement;
(iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, obligation to be performed by the Company or any Subsidiary of any liability or obligation relating the Shareholders under this Agreement; provided, however, that (x) no Shareholder shall be required to or arising out indemnify for Losses in excess of the business, operations or assets percentage of such Losses equal to the percentage of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected total Parent Common Stock issued in the 1998 Financial StatementsMerger that is received by such Shareholder in the Merger Exchange as reflected on Schedule 3.02(b), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(v) any liability or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law to the extent that such liability or obligation relates to or arises out of, in whole or in part, any activity occurring, condition existing, omission to act or other matter existing at or prior to the Closing;
(vi) any liability or obligation (including all taxes, penalties and interest) which relates to, or which involves a claim, liability or obligation against the Company except for Losses arising out of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1resulting from the breach of such Shareholder's Personal Representations, 1994which shall not be so limited, as amended and (2y) lease payments made no Shareholder shall be required to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) indemnify for any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing Losses arising out of or based upon resulting from the breach of any demands other Shareholder's Personal Representations, and (z) Losses shall be reduced by any Tax Benefit (or net insurance proceeds after deducting any costs of collection) received by Parent or the Surviving Company in connection with the claims (includinggiving rise to indemnification hereunder. The obligations of the Shareholders pursuant to this Article VIII shall be several among the Shareholders as provided in Section 8.04. Notwithstanding the foregoing, if any claim for indemnification is asserted by Parent and/or the Surviving Company against the Shareholders, and the Parent and/or the Surviving Company is covered by an insurance policy for such Losses, Parent and/or the Surviving Company shall use their commercially reasonable efforts to seek indemnification under the applicable insurance policy or policies; provided, however, Parent and/or the Surviving Company shall not be obligated to commence any legal proceedings against any insurance provider for indemnification hereunder. Parent and/or the Surviving Company shall give the Shareholder Representative notice of their intention to seek indemnification for such Losses from applicable insurance policies. In the event that Parent and/or the Surviving Company are unable to collect sufficient insurance proceeds to be fully indemnified for their respective Losses, Parent and/or the Surviving Company shall be entitled to receive indemnification pursuant to this Article VIII and shall, as promptly as practicable, assign to the Shareholder Representative, without limitationrecourse, such demands made pursuant their respective claims for the uncollected Losses against the insurance provider or providers. Notwithstanding anything contained herein to the contrary, the indemnification rights under this Article VIII are the sole remedies that certain letter dated April 14the Parent may seek or assert against the Shareholders, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns as to Non-Key Shareholders (the "CBR DemandsShareholders Other Than Key Shareholders") against any of, such indemnification rights shall be limited to a breach of a warranty or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for representation under Article III.
A. For purposes of this Section 5.1 (a) (vii) onlyAgreement, that the Shareholders shall be, jointly and severally, responsible and liable for 75% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); and
(b) any and all actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to any of the foregoing or to the enforcement of this Section 5.1; provided, that, except as otherwise provided in Section 5.5 hereof and except for Claims in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Consideration.
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders (which shall include for purposes of this Article 5be jointly and severally responsible and liable for, Jack X. Xxxx, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx), xointly and severally, covenant and hereby agree to indemnify, defend, protect defend and hold harmless DBTthe Buyer, the Surviving Corporation SICC and each Subsidiary (and each of their respective officers, directors directors, managers, agents, employees, successors and employees) permitted assigns, at all times from and after the Closing, from, against and in respect of:
of all losses, damages, liabilities, deficiencies, Taxes, and expense (“Loss” or “Losses”) resulting from (a) all liabilitiesany failure, lossesuntruth, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, settlement payments, deficiencies, diminution in value, costs and expenses (including without limitation reasonable attorneys' fees and expenses) (collectively, "Claims") suffered, sustained, incurred inaccuracy or paid by DBT, the Surviving Corporation or any Subsidiary (or any of their officers, directors and employees) in connection with, resulting from or arising out of:
(i) any breach of any representation or warranty of a Shareholder the Shareholders or the Company set forth SICC contained in this Agreement or in any agreement, Schedule or certificate delivered pursuant hereto or other writing delivered by a Shareholder or the Company in connection herewith;
; (iib) any nonfulfillment breach or breach non-fulfillment of any covenant or agreement on the part of a SICC or any Shareholder or the Company set forth made in this Agreement;
(iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, the Company or any Subsidiary of any liability or obligation relating to or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(v) any liability or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law to the extent that such liability or obligation relates to or arises out of, in whole Agreement or in partany agreement, any activity occurring, condition existing, omission to act Schedule or other matter existing at certificate delivered pursuant hereto or prior to in connection herewith; (c) Taxes for which the Closing;
(vi) any liability or obligation (including all taxes, penalties and interest) which relates to, or which involves a claim, liability or obligation against the Company arising out Shareholders are responsible in accordance with Article 7 of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, such demands made pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debtsthis Agreement, or any similar liabilities arising therefrom; it being understood and agreed upon by liability of SICC to make payments to or indemnify any other Person with respect to Taxes, for any Taxable period or portion thereof ending on or before the parties hereto for purposes of this Section 5.1 (a) (vii) only, that the Shareholders shall be, jointly and severally, responsible and liable for 75% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%)Closing Date; and
, (bd) any and all actions, suits, claims, proceedings, investigations, allegationsclaims, demands, assessments, auditsjudgments, fines, judgmentspenalties, amounts properly and reasonably paid in settlement to any third party, and costs and other expenses (including without limitation reasonable attorneys' ’ fees and expenses) incident to any of the foregoing or foregoing. The Shareholders shall not be liable for any indemnity pursuant to this Section 10.1(a) (other than claims with respect to the enforcement Shareholder Transaction Representations and claims arising from Section 7.1, which shall not be subject to this limitation) until the aggregate of this Section 5.1; providedall Losses incurred by Buyer exceed $500,000, that, except as otherwise provided in Section 5.5 hereof and except for Claims in connection with Section 2.7 hereof, (A) then the Shareholders shall not have be liable for all such Losses beginning with the first dollar of such Loss. Notwithstanding the foregoing or any liability under Section 5.1(a)(i) hereof unless, and solely other provision of this Agreement or any Related Document to the extent thatcontrary, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of in no event shall the Shareholders' liability under , individually or collectively, be liable to Buyer for any claims for indemnity pursuant to this Section 5.1 10.1(a) (other than claims with respect to Shareholder Transaction Representations and claims arising from Section 7.1, which shall not exceed be subject to this limitation) related to this Agreement or the Merger Considerationtransactions contemplated hereby, whether by indemnification or otherwise, for more than the funds held in the Escrow pursuant to Section 1.2.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fairpoint Communications Inc)
Indemnification by the Shareholders. The Shareholders (which shall include for purposes Subject to the provisions of this Article 5Article, Jack X. Xxxxthe Shareholders agree to jointly and severally indemnify, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxxdefend and hold Acies and its Affiliates, parents, stockholders, subsidiaries, officers, directors, employees, agents, successors and assigns (such indemnified persons are collectively hereinafter referred to as “Acies Indemnified Persons”), xointly harmless from and severallyagainst any and all loss, covenant and agree to indemnifyliability, defenddamage or deficiency (including interest, protect and hold harmless DBTpenalties, the Surviving Corporation and each Subsidiary (and each of their officers, directors and employees) from, against and in respect of:
(a) all liabilities, losses, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, settlement payments, deficiencies, diminution in valuejudgments, costs of preparation and expenses (including without limitation reasonable investigation, and attorneys' fees and expenses’ fees) (collectively, "Claims"“Losses”) sufferedthat any Acies Indemnified Person may suffer, sustainedsustain, incurred incur or paid by DBTbecome subject to arising out of or due to: (a) the non-fulfillment of any covenant, undertaking, agreement or other obligation of Champion, the Surviving Corporation Shareholders or any Subsidiary (or any of their officers, directors and employees) in connection with, resulting from or arising out of:
(i) any breach of any representation or warranty of a Shareholder or the Company set forth in Series A Holder under this Agreement or any certificate or other writing delivered Schedule hereto; (b) any action taken by a Shareholder Champion prior to the Closing Date, or the Company in connection herewith;
operations of Champion or Acies subsequent to Closing; which, however, does not include any action that was caused by or as a fault of an action which originally occurred prior to the Closing Date or could be partially attributed as a Loss to Acies under Section 9.2 of this Agreement (iic) any nonfulfillment misstatement, breach of or inaccuracy of any representation of Champion or any Shareholder in this Agreement; (d) the breach of any representation, warranty or covenant of Champion, Series A Holder or agreement on the part of a Shareholder or the Company set forth in this Agreement;
; or (iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, the Company or any Subsidiary of any liability or obligation relating to or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(ve) any liability or obligation liabilities of Champion which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law are not disclosed to the extent that such liability or obligation relates to or arises out of, in whole or in part, any activity occurring, condition existing, omission to act or other matter existing Acies at or prior to the Closing;
(vi) any liability or obligation Closing and which Acies is required to satisfy subsequent to Closing (including all taxesfees and expenses associated therewith); provided however, penalties that Champion and interestthe Shareholders will not be liable under clause (d) which relates to, or which involves a claim, liability or obligation against the Company arising out of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, such demands made pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes of this Section 5.1 9.1 unless the aggregate amount of Losses exceeds $10,000 (a) (vii) onlythe “Threshold”), that the in which event Champion or Shareholders shall be, jointly and severally, responsible and be liable for 75% of any such liability or obligation (other than legal fees all Losses up to, including and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); and
(b) any and all actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to any of the foregoing or to the enforcement of this Section 5.1; provided, that, except as otherwise provided in Section 5.5 hereof and except for Claims in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, exceeding the amount of the aggregate Threshold. “Losses” as used in this Article is not limited to matters asserted by third parties, but includes Losses incurred or sustained in the absence of third party claims. Payment is not a condition precedent to recovery of indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Considerationfor Losses.
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders (which shall include for purposes of this Article 5, Jack X. Xxxx, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx), xointly and severally, covenant and agree to indemnify, defend, protect and hold harmless DBT, the Surviving Corporation and each Subsidiary (and each of their officers, directors and employees) from, against and in respect of:
(a) all liabilities, losses, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, settlement payments, deficiencies, diminution in value, costs and expenses (including without limitation reasonable attorneys' fees and expenses) (collectively, "Claims") suffered, sustained, incurred or paid by DBT, the Surviving Corporation or any Subsidiary (or any of their officers, directors and employees) in connection with, resulting from or arising out of:
(i) any breach of any representation or warranty of a Shareholder or the Company set forth in this Agreement or any certificate or other writing delivered by a Shareholder or the Company in connection herewith;
(ii) any nonfulfillment or breach of any covenant or agreement on the part of a Shareholder or the Company set forth in this Agreement;
(iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, the Company or any Subsidiary of any liability or obligation relating to or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except Subject to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(v) any liability or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law to the extent that such liability or obligation relates to or arises out of, in whole or in part, any activity occurring, condition existing, omission to act or other matter existing at or prior to the Closing;
(vi) any liability or obligation (including all taxes, penalties and interest) which relates to, or which involves a claim, liability or obligation against the Company arising out of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, such demands made pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes terms of this Section 5.1 (a) (vii) only7.3, that the Shareholders shall bewill, jointly and severally, responsible defend, indemnify and liable hold harmless Parent and the Surviving Entity (collectively, the “Parent Indemnified Parties”), from and against and in respect of any and all losses, liabilities, obligations, claims, actions, damages, judgments, penalties, fines, settlements and expenses, including reasonable attorneys’ fees (collectively, “Losses”), incurred by any of the Parent Indemnified Parties arising out of, based upon or related to (i) any inaccuracy or breach of any of the representations or warranties made by the Company or any of the Shareholders in this Agreement, (ii) any breach of or failure to comply with any covenant or agreement made by the Company or any of the Shareholders in this Agreement, (iii) the Working Capital Deficit, (iv) any claim by any of the b-pack Services Shareholders (as hereinafter defined) relating to the Company, any of the Subsidiaries, any of the Parent Indemnified Parties and/or any of the Contemplated Transactions, including the b-pack Services Share Sale (as hereinafter defined) (but in the case of this clause (iv), such indemnification shall not include amounts paid in settlement of up to 160,000 Euro of, and court costs and attorneys’ fees incurred in connection with, any action, suit or proceeding related to the b-pack Services Share Sale), or (v) any Company Taxes for 75any Tax period (or portion thereof) ending on or prior to the Closing Date, excluding 50% of any such liability or obligation (other than legal fees and expenses Transfer Taxes incurred in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability with this Agreement or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); and
(b) any and all actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to any of the foregoing or to the enforcement of this Section 5.1; providedContemplated Transactions. “Transfer Taxes” shall mean any transfer, thatdocumentary, except as otherwise provided in Section 5.5 hereof sales, use, stamp, registration and except for Claims in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, other substantially similar Taxes and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Considerationfees.
Appears in 1 contract
Samples: Merger Agreement (Selectica Inc)
Indemnification by the Shareholders. The Shareholders (which shall include for purposes of this Article 5, Jack X. Xxxx, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx), xointly and severally, covenant and agree to not jointly, indemnify, defend, protect save and hold harmless DBTSoftNet and its affiliates and its and their respective Representatives from and against any and all costs, losses (including diminution in value), Taxes (including, but not limited to, any Taxes or other costs or damages arising under, caused by or related to Section 280G of the Surviving Corporation and each Subsidiary (and each of their officersCode), directors and employees) from, against and in respect of:
(a) all liabilities, lossesobligations, damages, lawsuits, deficiencies, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, settlement payments, deficiencies, diminution in value, costs and expenses (whether or not arising out of third-party claims), including without limitation reasonable interest, penalties, costs of mitigation, losses in connection with any Environmental Law (including any clean-up or remedial action), damages to the environment, attorneys' fees and expenses) all amounts paid in investigation, defense or settlement of any of the foregoing, in each case after taking into account any insurance proceeds received by the indemnified Person and related tax benefits (collectivelyherein, "ClaimsDamages") suffered, sustained), incurred or paid by DBT, the Surviving Corporation or any Subsidiary (or any of their officers, directors and employees) in connection with, arising out of, resulting from or arising out of:
incident to: (i) any breach of any representation or warranty of a Shareholder or the Company set forth inaccuracy of any representation or warranty, made by any Seller in this Agreement Agreement, except for any breach of any representation or any certificate or other writing delivered by a Shareholder warranty or the Company inaccuracy of any representation or warranty in connection herewith;
Section 3.2 hereof (which shall be covered in the following clause (ii)); (ii) any nonfulfillment breach of any representation or warranty or the inaccuracy of any representation or warranty, made by any Seller in Section 3.2 of this Agreement; (iii) any Damages in excess of $100,000 in the aggregate in any way incurred in connection with, arising out of, resulting from or incident to (x) the case titled Wayport, Inc. v. Laptop Lane Limited, Case No. 99-13222, 201 Judicial District, Xxxxxx County, Texas or (y) any matter, claim, demand, lawsuit or other action asserted by Xxxxxxxx Xxxxxxx against LLL or SoftNet; and (iv) any breach of any covenant or agreement on the part of a Shareholder or the Company set forth made by any Seller in this Agreement;
(iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, the Company or any Subsidiary of any liability or obligation relating to or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(v) any liability or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law to the extent that such liability or obligation relates to or arises out of, in whole or in part, any activity occurring, condition existing, omission to act or other matter existing at or prior to the Closing;
(vi) any liability or obligation (including all taxes, penalties and interest) which relates to, or which involves a claim, liability or obligation against the Company arising out of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, such demands made pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes of this Section 5.1 (a) (vii) only, that the Shareholders shall be, jointly and severally, responsible and liable for 75% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); and
(b) any and all actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to any of the foregoing or to the enforcement of this Section 5.1; provided, that, except as otherwise provided in Section 5.5 hereof and except for Claims in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Consideration.
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders (which shall include for purposes of this Article 5Shareholders, Jack X. Xxxx, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx), xointly jointly ------------------------------------ and severally, covenant and hereby agree to indemnify, defend, protect indemnify and hold harmless DBTTeleSpectrum, the Surviving Corporation and each Subsidiary its successors and assigns, (each, an "Indemnified TeleSpectrum Party") from and each of their officers, directors against any and employees) from, against and in respect of:
(a) all liabilities, lossesLiabilities, claims, damages, actions, suits, proceedings, demands, assessments, adjustmentsjudgments, settlement payments, deficiencieslosses, diminution in valuecosts, costs damages and expenses whatsoever (including without limitation reasonable attorneys', consultants' and other professional fees and expensesdisbursements of every kind, nature and description incurred by such Indemnified TeleSpectrum Party in connection therewith) (collectively, "ClaimsDamages") sufferedthat such Indemnified TeleSpectrum Party may sustain, sustainedsuffer or incur that result from, incurred arise out of or paid by DBT, the Surviving Corporation or any Subsidiary relate to (or any of their officers, directors and employees) in connection with, resulting from or arising out of:
(ia) any breach of any representation or warranty of a Shareholder or the Company set forth in this Agreement or any certificate or other writing delivered by a Shareholder or the Company inaccuracy in connection herewith;
(ii) any nonfulfillment or breach of any representation, warranty, covenant or agreement on the part of a either Shareholder or the Company set forth contained in this Agreement;
, including any breach of the obligation to indemnify hereunder, (iiib) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, the Company or any Subsidiary of any liability Liability or obligation relating to involving an Environmental Condition or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(v) any liability or obligation which otherwise relates to, or which involves a claim, liability Liability or obligation which arises out of or is based upon, any Environmental Law Law, to the extent that such liability Liability or obligation relates to or arises out of, in whole or in part, any activity occurring, condition existing, omission to act or other matter existing at prior to the Closing Date, or (c) any Liability or obligation of either Shareholder involving taxes due and payable by, or imposed with respect to the either Company or either Shareholder for any all taxable periods ending on or prior to the Closing;
(vi) any liability or obligation (including all taxes, penalties and interest) which relates to, or which involves a claim, liability or obligation against the Company arising out of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation Closing Date (whether or not such claim, action, liability or obligation has taxes have been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, such demands made pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities due and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes of this Section 5.1 (a) (vii) only, that the Shareholders shall be, jointly and severally, responsible and liable for 75% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%payable); and
(b) any and all actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to any of the foregoing or to the enforcement of this Section 5.1; provided, that, except as otherwise provided in Section 5.5 hereof and except for Claims in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Consideration.
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders (which shall include for purposes on behalf of this Article 5Holdco) shall, Jack X. Xxxx, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx), xointly jointly and severally, covenant indemnify and agree to indemnifydefend the Buyer and its Affiliates (including, defendafter the Closing, protect each Acquired Company) and hold harmless DBTtheir respective stockholders, the Surviving Corporation and each Subsidiary (and each of their members, managers, officers, directors directors, employees, agents, successors and employeesassigns (the “Buyer Indemnitees”) against, and shall hold them harmless from, against any and in respect of:
(a) all liabilities, losses, including damages, claims (including third party claims), damagescharges, Liabilities, actions, suits, proceedings, demandsinterest, assessmentspenalties, adjustments, settlement payments, deficiencies, diminution in valueTaxes, costs and expenses (including without limitation reasonable attorneys' legal, consultant, accounting and other professional fees, costs of sampling, testing, investigation, removal, treatment and remediation of contamination and fees and expensescosts incurred in enforcing rights under this Agreement) (collectively, "Claims"“Losses”) sufferedresulting from, sustainedarising out of, or incurred or paid by DBT, the Surviving Corporation or any Subsidiary (or any of their officers, directors and employees) Buyer Indemnitee in connection with, resulting from or arising out of:
otherwise with respect to (ia) any inaccuracy or breach of any representative or warranty made or given by the Shareholders in Article III or Article IV; and (b) any breach by the Shareholders, Holdco or the Company of, or any failure by the Shareholders, Holdco or the Company to perform or comply with, any covenant or agreement contained in this Agreement. For purpose of this Section 9.2, any inaccuracy or breach of any representation or warranty of a Shareholder or the Company set forth in this Agreement or any certificate or other writing delivered by a Shareholder or the Company in connection herewith;
(ii) any nonfulfillment or breach of any covenant or agreement on by the part of a Shareholder Shareholders, Holdco or the Company set forth Company, and the amount of Losses associated therewith, shall be determined without regard and without giving effect to any “materiality”, “Material Adverse Effect” or similar qualification and “knowledge” or similar qualification. Notwithstanding anything to the contrary in this Agreement;
(iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, the Company or any Subsidiary of any liability or obligation relating to or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(v) any liability or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law to the extent that such liability or obligation relates to or arises out of, in whole or in part, no event shall Buyer be entitled to a double recovery for any activity occurring, condition existing, omission to act or other matter existing at or prior to the Closing;
(vi) any liability or obligation (including all taxes, penalties and interest) which relates to, or which involves a claim, liability or obligation against the Company arising out of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, such demands made pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes of this Section 5.1 (a) (vii) only, that the Shareholders shall be, jointly and severally, responsible and liable for 75% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any such liability or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); and
(b) any and all actions, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to any of the foregoing or to the enforcement of this Section 5.1; provided, that, except as otherwise provided in Section 5.5 hereof and except for Claims in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Considerationindemnity.
Appears in 1 contract
Indemnification by the Shareholders. The Indemnifying Shareholders (which shall include for purposes of this Article 5shall, Jack X. Xxxx, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx), xointly jointly and severally, covenant and agree to indemnify, defend, protect indemnify and hold harmless DBTthe Parent, the Surviving Corporation Company and each Subsidiary their representatives, stockholders, controlling persons and affiliates (the "Indemnified Group") from any and each of their officers, directors and employees) from, against and in respect of:
(a) all liabilities, losses, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, settlement payments, deficiencies, diminution in value, costs and expenses (including without limitation reasonable attorneys', consultants' and accountants' fees and expensesother expenses and costs of litigation) (collectively, "Claims") suffered, sustained, incurred or paid by DBTany member of the Indemnified Group or which a Member of the Indemnified Group is obligated to pay, the Surviving Corporation whether or any Subsidiary (or any of their officersnot involving a third party claim, directors and employees) in connection with, resulting from or arising out ofof or resulting directly or indirectly from any claim relating to:
(ia) any breach or inaccuracy of any representation or warranty of a Shareholder by OWL or the Company set forth Major Shareholder to Parent and Merger Sub contained in this Agreement the4 Merger Agreement, the Schedules or Exhibits attached hereto, or any certificate agreements, documents or other writing certificates delivered by a Shareholder or the Company in connection herewith;
(ii) any nonfulfillment or breach of any covenant or agreement on the part of a Shareholder or the Company set forth in this Agreement;
(iii) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports), 2.14 (Legal Proceedings, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, the Company or any Subsidiary of any liability or obligation relating to or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or at the Closing;
(v) any liability or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law to the extent that such liability or obligation relates to or arises out of, in whole or in part, any activity occurring, condition existing, omission to act or other matter existing at or prior to the Closing;
(vi) any liability or obligation (including all taxes, penalties and interest) which relates to, or which involves a claim, liability or obligation against the Company arising out of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(vii) any liability or obligation of any kind or nature whatsoever (including, without limitation, any award, judgment or settlement) which relates to, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known prior to the date hereof) against any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, such demands made Major Shareholders pursuant to that certain letter dated April 14this Agreement, 1999) made byignoring, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., a Delaware corporation, its constituent entities and its successors and assigns (for the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes of this Section 5.1 (a) (vii) onlydetermining the inaccuracy or breach thereof, that the Shareholders shall be, jointly and severally, responsible and liable for 75% of any such liability or obligation (other than legal fees and expenses in connection therewith qualification as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% of any materiality or Material Adverse Effect contained in such liability representation or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); andwarranty;
(b) any and all actionsbreach or violation of any covenant, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to obligation or agreement by any of the foregoing Major Shareholders or OWL contained in the Merger Agreement, the Schedules or Exhibits attached hereto, or any agreements, documents or certificates delivered by any of the Major Shareholders pursuant to the enforcement Merger Agreement;
(c) Any liability for Taxes, arising out of this Section 5.1; providedthe operation of the business of the Company prior to the Closing Date;
(d) any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, thator alleged to have been made, except as otherwise provided in Section 5.5 hereof and except for Claims by any person with any of the Shareholders (or any person acting on their behalf) in connection with Section 2.7 hereof, (A) the Shareholders shall not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of transactions contemplated by the Merger Consideration Agreement; and
(the "Indemnification Threshold"e) and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Considerationany actions, claims or suits by, or obligations to Bandcrashers, Xxxxx Xxxxxx or Xxxxx Xxxxxx Consulting, LLC.
Appears in 1 contract
Samples: Indemnification Agreement (Media Technologies, Inc.)
Indemnification by the Shareholders. The Shareholders (which shall include for purposes Subject to the terms of this ----------------------------------- Article 510, Jack X. XxxxSchedule 2.1, Xxry X. Xxxx xxx Sharxx X. Xxxxxxxx)and the Escrow Agreement, xointly from and after the Effective ------------ Time, the Shareholders shall, jointly and severally, covenant and agree to indemnify, defend, protect save and hold harmless DBTParent, Merger Sub (and the Surviving Corporation, after the consummation of the Merger) and any of their successors and assigns (collectively, the Surviving Corporation "Parent Indemnified Parties"), from and each Subsidiary (and each of their officersagainst any demands, directors and employees) fromclaims, against and in respect of:
(a) all liabilitiesactions, losses, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, settlement payments, deficiencies, diminution in valueliabilities, costs and expenses (including including, without limitation limitation, reasonable attorneys' and accountants' fees and expenses, and interest and penalties, if any, awarded by court order or otherwise agreed to) (collectively, "ClaimsIndemnifiable Damages") suffered), sustained, incurred suffered by the Parent Indemnified Parties that arise out of or paid by DBT, the Surviving Corporation or any Subsidiary (or result from any of their officers, directors and employees) in connection with, resulting from the following (whether or arising out of:not a third party initiates a proceeding or claim giving rise to such Indemnifiable Damages):
(ia) any breach of any representation of the representations, warranties, covenants or warranty of a Shareholder agreements made by Seller or the Company set forth in this Agreement or any certificate or other writing delivered by a Shareholder or the Company in connection herewith;
(ii) any nonfulfillment or breach of any covenant or agreement on the part of a Shareholder or the Company set forth Shareholders in this Agreement;
(iiib) the matters disclosed on Schedules 2.13 (Taxes and Tax Returns and Reports)any breach of any representation, 2.14 (Legal Proceedingswarranty, Etc.), and 2.15 (Compliance with Law);
(iv) the assertion against DBT, the Surviving Corporation, the Company covenant or agreement made by Seller or any Subsidiary of any liability Shareholder in a document, certificate or obligation relating to affidavit delivered by Seller or arising out of the business, operations or assets of the Company or any Subsidiary prior to or at the Closing (except to the extent such liabilities and obligations are reflected in the 1998 Financial Statements), or out of the actions or omissions of the Company's or any Subsidiary's directors, officers, shareholders, employees or agents prior to or Shareholders at the Closing;
(v) any liability or obligation which relates to, or which involves a claim, liability or obligation which arises out of or is based upon, any Environmental Law to the extent that such liability or obligation relates to or arises out of, in whole or in part, any activity occurring, condition existing, omission to act or other matter existing at or prior to the Closing;
(vi) any liability or obligation (including all taxes, penalties and interest) which relates to, or which involves a claim, liability or obligation against the Company arising out of or based upon any (1) compensation made to Jack X. Xxxx xxxsuant to that certain consulting agreement dated January 1, 1994, as amended and (2) lease payments made to J&R Investments, a California General Partnership, by the Company pursuant to that certain standard industrial lease dated January 1, 1999, as amended; or
(viic) any liability or obligation of any kind or nature whatsoever (includingexpenses, without limitationcharges, any award, judgment or settlement) which relates tofees, or which involves a claim, action, liability or obligation (whether or not such claim, action, liability or obligation has been asserted or is known costs associated with any audit of Seller for Taxes related to periods prior to the date hereof) against Closing Date, and any of the Company, DBT or Jack X. Xxxx xxxsing out of or based upon any demands or claims (including, without limitation, such demands made pursuant to that certain letter dated April 14, 1999) made by, or litigation or action brought by or on behalf of Confidential Business Resources, Inc., Taxes imposed as a Delaware corporation, its constituent entities and its successors and assigns (the "CBR Demands") against any of, or all of, the Company, DBT and Jack X. Xxxx, xx the case may be, including any cause of action, claim or counterclaim or cross complaint therefrom or any claim arising from or relating to the factual matters underlying the CBR Demands, including, without limitation attorneys' fees, interest, expenses, fines, damages, costs, settlement, judgments, debts, or any similar liabilities arising therefrom; it being understood and agreed upon by the parties hereto for purposes of this Section 5.1 (a) (vii) only, that the Shareholders shall be, jointly and severally, responsible and liable for 75% result of any such liability audit, even though any such audit commences, or obligation (other than legal fees and expenses in connection therewith as to which they shall be jointly and severally liable for 25%) and DBT shall be responsible for 25% a party does not become aware of any such liability or obligation (other than legal fees and expenses in connection therewith as to which DBT shall be responsible and liable for 75%); and
(b) any and all actionsaudit, suits, claims, proceedings, investigations, allegations, demands, assessments, audits, fines, judgments, costs and other expenses (including without limitation reasonable attorneys' fees and expenses) incident to any until after the Closing Date. Any of the foregoing or to the enforcement of this Section 5.1; providedcontrary notwithstanding, that, except as otherwise provided in Section 5.5 hereof and except for Claims the Shareholders' indemnification obligations in connection with Section 2.7 hereof, (A) the Shareholders breach of any provision of Article 5 or in connection with the breach of any post closing covenants of either Shareholder shall be several and not have any liability under Section 5.1(a)(i) hereof unless, and solely to the extent that, the amount of the aggregate indemnification obligations under such Section 5.1(a)(i) exceeds 1% (one percent) of the Merger Consideration (the "Indemnification Threshold") and (B) the aggregate amount of the Shareholders' liability under this Section 5.1 shall not exceed the Merger Considerationjoint.
Appears in 1 contract
Samples: Merger Agreement (M2direct Inc)
