Indemnification for Company Matters. From and after the Closing, by virtue of the Equity Purchase and subject to the terms, conditions and limitations of this Article X, the Securityholders shall, severally (in accordance with each Securityholder’s applicable Pro Rata Share upon the date of notice of each applicable claim), but not jointly, indemnify and hold harmless Buyer and its directors, officers, employees, Affiliates, agents, successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all Damages related to or arising out of or in connection with: (i) Any breach of, or inaccuracy in, any of the representations or warranties made by the Company in Article IV of this Agreement or in any Schedule or certificate (other than the Consideration Spreadsheet) delivered by or on behalf of the Company pursuant to this Agreement, in each case, as of the date hereof or as of the Closing Date (except in the case of representations and warranties that by their terms speak as of a specific date, which representations and warranties shall be true and correct as of such date) and assuming that all qualifications contained in this Agreement and each such Schedule or certificate as to materiality, including each qualifying reference to the defined term “Company Material Adverse Change” the words “material” and “materially” and all similar phrases and words (excluding the defined term “Material Contract”), were deleted therefrom; (ii) any breach of or failure to perform on or prior to the Closing any covenant, or agreement made by the Company herein that are required to be performed on or prior to the Closing; (iii) any Closing Indebtedness or Unpaid Company Transaction Expenses, to the extent not accounted for in the determination of the Aggregate Closing Consideration and paid as of Closing or in the determination of the Adjustment Amount pursuant to Section 3.04(b); (iv) any fraud on the part of the Company; (v) any claims by or on behalf of any holder or former holder of Equity Interests of the Company or rights to acquire Equity Interests of the Company (including any claims arising out of or in connection with the Equity Purchase or any of the other transactions contemplated hereby, any claims alleging violations of fiduciary duty by any current or former member of the Company Board or any of the current or former officers of the Company) solely in respect to (A) such Person’s ownership or purported ownership of any Equity Interests of the Company or rights to acquire Equity Interests of the Company or (B) solely in respect to the period prior to the Closing, a breach of fiduciary duties with respect to this Agreement, or the transactions contemplated hereby, by either any current or retired member of the Company Board; (vi) any (A) Taxes of the Company or any of the Company Subsidiaries with respect to any Pre-Closing Tax Period; (B) Taxes of any Securityholder (including capital gains Taxes arising as a result of the transactions contemplated by this Agreement) or any of their Affiliates (excluding the Company and the Company Subsidiaries) for any taxable period for which Buyer, its Affiliates, the Company or any Company Subsidiary is held liable; (C) Taxes for which the Company or any of the Company Subsidiaries (or any predecessor of the foregoing) is held liable by reason of such entity being included in any consolidated, affiliated, combined or unitary group or by reason of being a transferee or successor, in each case, at any time on or before the Closing Date; (D) Taxes imposed on or payable by third parties with respect to which the Company or any of the Company Subsidiaries has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the Closing; and (E) any withholding Taxes imposed with respect to payments made pursuant to this Agreement or the Equity Interests acquired by Buyer at the Closing (in each case, to the extent not fully withheld by the Payment Agent, 102 Trustee and/or the Escrow Agent upon actual payment to the Securityholder or to the extent not previously withheld in whole or in part by the Company or otherwise not fully or partly paid) for which for which Buyer, its Affiliates, the Company or any Company Subsidiary is held liable; provided, however, that the Securityholders shall have no liability under this Section 10.02(a)(vi) for any Taxes to the extent such Taxes were specifically reflected as a liability in the in the determination of the Aggregate Closing Consideration and paid as of Closing or in the determination of the Adjustment Amount pursuant to Section 3.04(b); (vii) any inaccuracy in the Consideration Spreadsheet or the failure of the allocation of the Equity Purchase Consideration or Sales Milestone Consideration, in each case, as set forth in the Consideration Spreadsheet to be consistent in all respects with this Agreement and the Organizational Documents of the Company; (viii) any 341 Legal Proceeding; and (ix) any amount paid to any service provider as reimbursement and/or as a gross up for Taxes incurred by such service provider with respect to any matter set forth on or required to be set forth on Section 4.04(b)(B) of the Company Disclosure Schedules (clauses (i) through (viii) of this Section 10.02(a) together, the “Company Indemnifiable Matters” and each individually a “Company Indemnifiable Matter””).
Appears in 1 contract
Samples: Option and Equity Purchase Agreement (Bioventus Inc.)
Indemnification for Company Matters. From and after the Closing, by virtue of the Equity Purchase and Closing (but subject to the terms, conditions and limitations of this Article XSection 11.1), the Securityholders Indemnitors shall, severally (in accordance with each Securityholder’s applicable Pro Rata Share upon the date of notice of each applicable claim), but not jointly, indemnify and hold harmless Buyer and its directors, officers, employees, Affiliates, agents, successors and assigns (collectively, indemnify each of the “Buyer Indemnified Parties”) Indemnitees from and against against, and shall compensate and reimburse each of the Indemnitees for, any Damages that are suffered or incurred at any time by any of the Indemnitees (regardless of whether or not such Damages relate to any third party claim) and all Damages related to that arise from or arising out of are a result of, or in connection are connected with:
(i) Any any inaccuracy in or breach of, of any representation or inaccuracy in, any of the representations or warranties warranty made by the Company in Article IV of this Agreement or in any Schedule or certificate (other than the Consideration Spreadsheet) delivered by or on behalf of the Company pursuant to this Agreement, in each case, as of the date hereof of this Agreement (without giving effect to any materiality or similar qualification limiting the scope of such representation or warranty (other than “Material Adverse Effect” in Section 3.20a)));
(ii) any inaccuracy in or breach of any representation or warranty made by the Company (A) in this Agreement as if such representation or warranty was made at and as of the Closing Date (except in the case of other than any such representations and warranties that by their terms speak are made as of a specific earlier date, which representations and warranties shall be true and correct have been accurate in all respects as of such earlier date) and assuming that all qualifications contained or (B) in this Agreement and the Company Closing Certificate (in each case, without giving effect to any materiality or similar qualification limiting the scope of such Schedule representation or certificate as to materiality, including each qualifying reference to the defined term warranty (other than “Company Material Adverse ChangeEffect” the words “material” and “materially” and all similar phrases and words (excluding the defined term “Material Contract”in Section 3.20a), were deleted therefrom;
(ii) any breach of or failure to perform on or prior to the Closing any covenant, or agreement made by the Company herein that are required to be performed on or prior to the Closing));
(iii) any inaccuracy in or breach of any representation or warranty set forth in the Closing Indebtedness Consideration Spreadsheet Certificate or Unpaid Company Transaction Expensesany error in any information from the Closing Consideration Spreadsheet, including any failure to properly calculate or allocate the extent not accounted for amounts therein (provided that any inaccuracy or omission in the determination of the Aggregate Closing Consideration and paid as of Closing or in the determination of the any Adjustment Amount pursuant to (or any Upwards Adjustment Amount or Downwards Adjustment Amount resulting therefrom), including for the avoidance of doubt, Aggregate Option Exercise Amount, the Closing Cash Amount, the Closing Indebtedness Amount, the Working Capital Surplus Amount (if any), the Working Capital Shortfall Amount (if any), and the Company Transaction Expense Amount shall be determined exclusively in accordance with the terms and conditions of Section 3.04(b1.7 and is not indemnifiable under this Section 11.2 and any claim by any Seller in contravention of Section 1.9 shall be resolved solely in accordance with Section 11.2(b));
(iv) any fraud on the part breach of any covenant or obligation of the CompanyCompany prior to the Closing (other than any breach of any Individual Covenant by any Indemnitor);
(v) any claims by Liability of or on behalf of with respect to any holder or former holder of Equity Interests of the Acquired Company or rights relating to acquire Equity Interests of the Company (including any claims Tax, together with any Damages arising out of or of, in connection with or incidental to the Equity Purchase determination, assessment or collection of any such Tax: (A) of or imposed on any Acquired Company or for which any Acquired Company is otherwise liable, or imposed on or with respect to any Indemnitee with respect to any Acquired Company, for any Pre-Closing Tax Period or for the portion of any Straddle Period ending on the Closing Date (as determined in accordance with Section 7.2(b)); (B) resulting from the inaccuracy in or breach of any of the other transactions contemplated herebyrepresentations and warranties set forth in Section 3.8 (determined without regard to: (1) any materiality, Knowledge or similar qualification limiting the scope of such representation or warranty; or (2) any claims alleging violations update of fiduciary duty by or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement); (C) of or imposed on any current or former member of the an affiliated, consolidated, combined or unitary group of which any Acquired Company Board (or any of the current or former officers of the predecessor to any Acquired Company) solely in respect to (A) such Person’s ownership is or purported ownership of any Equity Interests of the Company was a member on or rights to acquire Equity Interests of the Company or (B) solely in respect to the period prior to the Closing, Closing Date by reason of Treasury Regulation
Section 1. 1502-6(a) or any analogous or similar Legal Requirement; or (D) of or imposed on any other Person for which any Acquired Company is or has been liable as a breach of fiduciary duties with respect to this Agreement, transferee or the transactions contemplated herebysuccessor, by either any current Contract or retired member of the Company Boardassumption or otherwise;
(vi) regardless of the disclosure of any matter set forth in the Disclosure Schedule: (A) Taxes of the any Section 280G Payment made or required to be made by any Acquired Company or any other Person in connection with any of the Company Subsidiaries with respect to any Pre-Closing Tax PeriodContemplated Transactions; and (B) Taxes any damages for the failure of any Securityholder (including capital gains Taxes arising as a result of the transactions contemplated by this Agreement) or any of their Affiliates (excluding the Company and the Company Subsidiaries) for any taxable period for which Buyer, its Affiliates, the Acquired Company or any Company Subsidiary is held liable; (C) Taxes for which the Company or other Person to make any of the Company Subsidiaries (or any predecessor of the foregoing) is held liable by reason of such entity being included in any consolidated, affiliated, combined or unitary group or by reason of being a transferee or successor, in each case, at any time on or before the Closing Date; (D) Taxes imposed on or payable by third parties with respect to which the Company or any of the Company Subsidiaries has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the Closing; and (E) any withholding Taxes imposed with respect to payments made pursuant to this Agreement or the Equity Interests acquired by Buyer at the Closing (in each case, to the extent not fully withheld by the Payment Agent, 102 Trustee and/or the Escrow Agent upon actual payment to the Securityholder or to the extent not previously withheld in whole or in part by the Company or otherwise not fully or partly paid) for which for which Buyer, its Affiliates, the Company or any Company Subsidiary is held liable; provided, however, that the Securityholders shall have no liability under this Section 10.02(a)(vi) for any Taxes to the extent such Taxes were specifically reflected as a liability in the in the determination of the Aggregate Closing Consideration and paid as of Closing or in the determination of the Adjustment Amount pursuant to Section 3.04(b)280G Payment;
(vii) any inaccuracy in the Consideration Spreadsheet claim asserted or the failure held by any former or alleged stockholder, option holder, warrant holder or other security holder of the allocation Company who is not a Seller party hereto alleging or involving any ownership of, interest in or right to acquire any shares or other securities of the Equity Purchase Consideration or Sales Milestone Consideration, in each case, as set forth in the Consideration Spreadsheet to be consistent in all respects with this Agreement and the Organizational Documents of the any Acquired Company;; and
(viii) any 341 Legal Proceeding; and
(ix) Fraud by any amount paid to any service provider as reimbursement and/or as a gross up for Taxes incurred by such service provider with respect to any matter set forth on or required to be set forth on Section 4.04(b)(B) of the Company Disclosure Schedules (clauses (i) through (viii) of this Section 10.02(a) together, the “Company Indemnifiable Matters” and each individually a “Company Indemnifiable Matter””)Acquired Company.
Appears in 1 contract
Indemnification for Company Matters. From and after the Closing, by virtue of the Equity Purchase and subject to the termslimitations set forth in this Section 9 (but without limiting the rights of the Indemnitees under the indemnification provisions of the Share Issuance Agreement), conditions each Seller shall hold harmless and limitations indemnify each of this Article Xthe Indemnitees from and against, and shall compensate and reimburse each of the Securityholders shallIndemnitees for, severally (in accordance with each Securityholdersuch Seller’s applicable Pro Rata Share upon Portion of any Damages that are suffered or incurred at any time by any of the date Indemnitees or to which any of notice the Indemnitees may otherwise directly or indirectly become subject at any time (regardless of each applicable whether such Damages relate to any third party claim)) and which arise directly or indirectly from or are a direct or indirect result of, but not jointly, indemnify and hold harmless Buyer and its directors, officers, employees, Affiliates, agents, successors and assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all Damages related to or arising out of directly or in connection with:
indirectly relate to: (i) Any any breach of, of or inaccuracy in, any of the representations or warranties made by the Company in Article IV of this Agreement or in any Schedule or certificate (other than the Consideration Spreadsheet) delivered by or on behalf of the Company pursuant to this Agreement, in each case, Representation as of the date hereof or as of the Closing Agreement Date (except without giving effect to (A) any materiality or similar qualification limiting the scope of such representation or warranty (for clarity, “Knowledge” qualifiers, dollar thresholds, the word “Material” in the case of representations and warranties that by their terms speak as of a specific date, which representations and warranties shall be true and correct as of such date) and assuming that all qualifications contained in this Agreement and each such Schedule or certificate as to materiality, including each qualifying reference to the defined term “Company Material Adverse Change” the words “materialContract” and “materiallyMaterial Adverse Effect” and all similar phrases and words any materiality qualification used to define what constitutes a Material Contract will not be disregarded) or (excluding B) any update of or modification to the defined term “Material Contract”Company Disclosure Schedule made or purported to have been made on or after the Agreement Date), were deleted therefrom;
; (ii) any breach of or failure inaccuracy in (A) any Company Representation as if such representation or warranty were made at and as of the Closing (other than representations and warranties which by their terms are made only as of the Agreement Date or another specific earlier date) or (B) the Company Closing Certificate (in each case, without giving effect to perform (1) any materiality or similar qualification limiting the scope of such representation or warranty (for clarity, “Knowledge” qualifiers, dollar thresholds, the word “Material” in the terms “Material Contract” and “Material Adverse Effect” and any materiality qualification used to define what constitutes a Material Contract will not be disregarded) or (2) any update of or modification to the Company Disclosure Schedule made or purported to have been made on or prior to after the Closing any covenant, or agreement made by the Company herein that are required to be performed on or prior to the Closing;
Agreement Date); (iii) regardless of the disclosure of any Closing Indebtedness or Unpaid Company Transaction Expenses, to the extent not accounted for matter set forth in the determination of Company Disclosure Schedule, any inaccuracy in any information set forth in the Aggregate Closing Company Consideration and paid as of Closing Spreadsheet, in the Sellers’ Consideration Spreadsheet or in Schedule I, including any inaccuracy or failure to calculate properly any amount set forth in the determination of Company Consideration Spreadsheet, in the Adjustment Amount pursuant to Section 3.04(b);
Sellers’ Consideration Spreadsheet or in Schedule I; (iv) any fraud on the part of the Company;
(v) any claims by or on behalf breach of any holder covenant or former holder of Equity Interests agreement of the Company or rights in the Share Issuance Agreement that by its terms is to acquire Equity Interests of the Company (including any claims arising out of or in connection with the Equity Purchase or any of the other transactions contemplated hereby, any claims alleging violations of fiduciary duty by any current or former member of the Company Board or any of the current or former officers of the Company) solely in respect to (A) such Person’s ownership or purported ownership of any Equity Interests of the Company or rights to acquire Equity Interests of the Company or (B) solely in respect to the period prior to the Closing, a breach of fiduciary duties with respect to this Agreement, or the transactions contemplated hereby, by either any current or retired member of the Company Board;
(vi) any (A) Taxes of the Company or any of the Company Subsidiaries with respect to any Pre-Closing Tax Period; (B) Taxes of any Securityholder (including capital gains Taxes arising as a result of the transactions contemplated by this Agreement) or any of their Affiliates (excluding the Company and the Company Subsidiaries) for any taxable period for which Buyer, its Affiliates, the Company or any Company Subsidiary is held liable; (C) Taxes for which the Company or any of the Company Subsidiaries (or any predecessor of the foregoing) is held liable by reason of such entity being included in any consolidated, affiliated, combined or unitary group or by reason of being a transferee or successor, in each case, be performed at any time on or before the Closing Date; (D) Taxes imposed on or payable by third parties with respect to which the Company or any of the Company Subsidiaries has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the Closing; and (Ev) any withholding Taxes imposed with respect to payments made pursuant to this Agreement or the Equity Interests acquired by Buyer at the Closing (in each case, to the extent not fully withheld by the Payment Agent, 102 Trustee and/or the Escrow Agent upon actual payment to the Securityholder or to the extent not previously withheld in whole or in part by the Company or otherwise not fully or partly paid) for which for which Buyer, its Affiliates, the Company or any Company Subsidiary is held liable; provided, however, that the Securityholders shall have no liability under this Section 10.02(a)(vi) for any Taxes to the extent such Taxes were specifically reflected as a liability in the in the determination regardless of the Aggregate Closing Consideration and paid as disclosure of Closing or in the determination of the Adjustment Amount pursuant to Section 3.04(b);
(vii) any inaccuracy in the Consideration Spreadsheet or the failure of the allocation of the Equity Purchase Consideration or Sales Milestone Consideration, in each case, as matter set forth in the Consideration Spreadsheet Company Disclosure Schedule, any claim asserted or held by any current, former or alleged securityholder of any Acquired Company (A) relating to be consistent in all respects this Agreement, any other Transaction Document or any of the Contemplated Transactions or any failure or alleged failure to comply with this Agreement and any provision of the Organizational Charter Documents of any Acquired Company or the Company;
Existing Shareholders’ Agreement, (viiiB) alleging any 341 Legal Proceeding; and
ownership of, interest in or right to acquire any shares or other securities of any Acquired Company or (ixC) that is in any amount paid to way inconsistent with, or that involves an allegation of facts inconsistent with, any service provider as reimbursement and/or as a gross up for Taxes incurred by such service provider with respect to any matter of the information set forth on or required to be set forth on in Section 4.04(b)(B) 2.3 of the Share Issuance Agreement, in Part 2.3 of the Company Disclosure Schedules Schedule, in Schedule I or in the Sellers’ Consideration Spreadsheet; (clauses vi) subject to Section 9.3(c)(ii), 50% of all fees (iincluding attorneys’ fees), charges, costs (including costs of investigation) through (viii) and expenses relating to the defense of this Section 10.02(a) togetherany non- meritorious claim asserted or held by any Person that, the “Company Indemnifiable Matters” and each individually a “Company Indemnifiable Matter””).if meritorious, would otherwise entitle an 26
Appears in 1 contract
Indemnification for Company Matters. From and after the Closing, by virtue of the Equity Purchase and Closing (but subject to the terms, conditions and limitations of this Article XSection 11.1), the Securityholders Indemnitors shall, severally (in accordance with each Securityholder’s applicable Pro Rata Share upon the date of notice of each applicable claim), but not jointly, indemnify and hold harmless Buyer and its directors, officers, employees, Affiliates, agents, successors and assigns (collectively, indemnify each of the “Buyer Indemnified Parties”) Indemnitees from and against against, and shall compensate and reimburse each of the Indemnitees for, any Damages that are directly or indirectly suffered or incurred at any time by any of the Indemnitees or that any of the Indemnitees may otherwise directly or indirectly become subject at any time (regardless of whether or not such Damages relate to any third party claim) and all Damages related to that arise directly or arising out of indirectly from or in connection are a direct or indirect result of, or are directly or indirectly connected with:
(i) Any any inaccuracy in or breach of any representation or warranty made by the Company in this Agreement as of the date of this Agreement (without giving effect to: (A) any materiality or similar qualification limiting the scope of such representation or warranty solely for purposes of determining the amount of Damages incurred; provided, however, that the foregoing shall not render references to “Material Contract” to mean “Contract” or “Company Contract”; or (B) any update or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement);
(ii) any inaccuracy in or breach of any representation or warranty made by the Company (A) in this Agreement as if such representation or warranty was made at and as of the Closing or (B) in the Company Closing Certificate (in each case, without giving effect to (X) any materiality or similar qualification limiting the scope of such representation or warranty solely for purposes of determining the amount of Damages incurred; provided, however, that the foregoing shall not render references to “Material Contract” to mean “Contract” or “Company Contract” or (Y) any update or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement);
(iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in or breach of any representation or warranty set forth in the Closing Consideration Spreadsheet Certificate or any inaccuracy in or omission of any information from the Closing Balance Sheet or the Closing Consideration Spreadsheet, including any failure to properly calculate or allocate the Adjusted Transaction Value, the Company Transaction Expense Amount or any other amount set forth in the Closing Consideration Spreadsheet;
(iv) any breach of any covenant or obligation of Sellers, the Company or the Sellers’ Representative in this Agreement (other than any breach of any Individual Covenant by any Indemnitor);
(v) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any Liability of or with respect to any Acquired Company relating to any Tax, together with any Damages arising out of, in connection with or incidental to the determination, assessment or collection of any such Tax: (A) of or imposed on any Acquired Company or for which any Acquired Company is otherwise liable, or imposed on or with respect to any Indemnitee with respect to any Acquired Company, for any Pre-Closing Tax Period or for the portion of any Straddle Period ending on the Closing Date (as determined in accordance with Section 7.3(b)); (B) resulting from the inaccuracy inin or breach of any of the representations and warranties set forth in Section 3.8 or Section 3.21(b)(xx) (determined without regard to (1) any materiality, Knowledge or similar qualification limiting the scope of each representation or warranty; or (2) any update or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement); (C) of or imposed on any member of an affiliated, consolidated, combined or unitary group of which any Acquired Company (or any predecessor to any Acquired Company) is or was a member on or prior to the Closing Date by reason of Treasury Regulation Section 1.1502-6(a) or any analogous or similar Legal Requirement; (D) of or imposed on any other Person for which any Acquired Company is or has been liable as a transferee or successor, by Contract or assumption or otherwise; (E) fifty percent (50%) of any Transfer Tax or Transfer Tax Expense; (F) of or imposed on Purchaser, any of its Affiliates, or, after the Closing Date, any Acquired Company, as a result of any amount required to be included in income by Purchaser, any of its Affiliates, or, after the Closing Date, any Acquired Company under Section 951 of the Code in respect of “subpart F income” (as defined in Section 952 of the Code) of any Acquired Company or under Section 951A of the Code in respect of “global intangible low taxed income” of any Acquired Company, in each case, for the taxable period that includes the Closing Date and that, based on an interim closing of the books at the Closing Date, is attributable to the Pre-Closing Tax Period, (G) any liability of any Acquired Company under Section 965 of the Code or (H) any payroll or similar Taxes deferred pursuant to the CARES Act or any similar federal, state, local or foreign Legal Requirement, in each case, other than any Taxes included in the Accrued Tax Amount or the Company Transaction Expense Amount, in each case, that have actually resulted in a dollar-for-dollar reduction of the Adjusted Transaction Value;
(vi) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any claim asserted or held by any current, former or alleged stockholder, option holder, warrant holder or other security holder of the Company: (A) relating to this Agreement, any other Transaction Document or any of the Contemplated Transactions or any failure or alleged failure to comply with any provision of the Securityholders’ Agreements or the Charter Documents of any Acquired Company; (B) alleging or involving any ownership of, interest in or right to acquire any shares or other securities of any Acquired Company; or (C) that is in any way inconsistent with, or that involves an allegation of facts inconsistent with, any of the information set forth in Section 3.2, in Part 3.2 of the Disclosure Schedule or in the Closing Consideration Spreadsheet;
(vii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any claim or right asserted or held by any Person who is or at any time was an officer, director, employee or agent of any Acquired Company involving a right or entitlement to indemnification, reimbursement or advancement of expenses or any other relief or remedy with respect to any act or omission on the part of such Person or any event or other circumstance that arose, occurred or existed at or prior to the Closing;
(viii) (A) any Section 280G Payment made or required to be made by any Acquired Company or any other Person in connection with any of the Contemplated Transactions after the Closing; and (B) any damages to an Indemnitee for the failure of any Acquired Company or any other Person to make any such Section 280G Payment;
(ix) any claim asserted or held by any Person that, if meritorious: (A) would constitute or give rise to an inaccuracy in or breach of any of the representations or warranties made by Sellers or the Company in Article IV this Agreement (without giving effect to: (1) any materiality or similar qualification limiting the scope of such representation or warranty solely for purposes of determining the amount of Damages incurred, provided, however, that the foregoing shall not render references to “Material Contract” to mean “Contract” or “Company Contract”, or (2) any update or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement); or (B) would otherwise constitute a matter described in Section 11.2(a); or
(x) any fraud committed by any Acquired Company in connection with or relating to: (A) the negotiation, execution, delivery or performance of this Agreement or in any Schedule or certificate other Transaction Document; (other than the Consideration SpreadsheetB) delivered by or on behalf any of the Company pursuant to this Agreement, in each case, as of Contemplated Transactions; or (C) the date hereof or as of the Closing Date (except in the case of representations due diligence investigation conducted by Purchaser and warranties that by its Affiliates and their terms speak as of a specific date, which representations and warranties shall be true and correct as of such date) and assuming that all qualifications contained in this Agreement and each such Schedule or certificate as to materiality, including each qualifying reference respective Representatives with respect to the defined term “Company Material Adverse Change” the words “material” and “materially” and all similar phrases and words (excluding the defined term “Material Contract”), were deleted therefrom;
(ii) any breach of or failure to perform on or prior to the Closing any covenant, or agreement made by the Company herein that are required to be performed on or prior to the Closing;
(iii) any Closing Indebtedness or Unpaid Company Transaction Expenses, to the extent not accounted for in the determination of the Aggregate Closing Consideration and paid as of Closing or in the determination of the Adjustment Amount pursuant to Section 3.04(b);
(iv) any fraud on the part of the Company;
(v) any claims by or on behalf of any holder or former holder of Equity Interests of the Company or rights to acquire Equity Interests of the Company Acquired Companies (including any claims arising out of discussions or information regarding the Acquired Companies provided or otherwise made available in connection with the Equity Purchase or any of the other transactions contemplated hereby, any claims alleging violations of fiduciary duty by any current or former member of the Company Board or any of the current or former officers of the Company) solely in respect to (A) such Person’s ownership or purported ownership of any Equity Interests of the Company or rights to acquire Equity Interests of the Company or (B) solely in respect to the period prior to the Closing, a breach of fiduciary duties with respect to this Agreement, or the transactions contemplated hereby, by either any current or retired member of the Company Board;
(vi) any (A) Taxes of the Company or any of the Company Subsidiaries with respect to any Pre-Closing Tax Period; (B) Taxes of any Securityholder (including capital gains Taxes arising as a result of the transactions contemplated by this Agreement) or any of their Affiliates (excluding the Company and the Company Subsidiaries) for any taxable period for which Buyer, its Affiliates, the Company or any Company Subsidiary is held liable; (C) Taxes for which the Company or any of the Company Subsidiaries (or any predecessor of the foregoing) is held liable by reason of such entity being included in any consolidated, affiliated, combined or unitary group or by reason of being a transferee or successor, in each case, at any time on or before the Closing Date; (D) Taxes imposed on or payable by third parties with respect to which the Company or any of the Company Subsidiaries has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the Closing; and (E) any withholding Taxes imposed with respect to payments made pursuant to this Agreement or the Equity Interests acquired by Buyer at the Closing (in each case, to the extent not fully withheld by the Payment Agent, 102 Trustee and/or the Escrow Agent upon actual payment to the Securityholder or to the extent not previously withheld in whole or in part by the Company or otherwise not fully or partly paid) for which for which Buyer, its Affiliates, the Company or any Company Subsidiary is held liableContemplated Transactions); provided, however, that in no event shall any Indemnitor incur liability for an act of fraud that such Indemnitor did not commit, or instruct or direct any other Person to commit, in excess of such Indemnitor’s Pro Rata Share of the Securityholders shall have no liability under this Section 10.02(a)(vi) for any Taxes cap applicable to the extent underlying claim to which such Taxes were specifically reflected as a liability in the in the determination of the Aggregate Closing Consideration and paid as of Closing or in the determination of the Adjustment Amount pursuant to Section 3.04(b);
(vii) any inaccuracy in the Consideration Spreadsheet or the failure of the allocation of the Equity Purchase Consideration or Sales Milestone Consideration, in each case, as set forth in the Consideration Spreadsheet to be consistent in all respects with this Agreement and the Organizational Documents of the Company;
(viii) any 341 Legal Proceeding; and
(ix) any amount paid to any service provider as reimbursement and/or as a gross up for Taxes incurred by such service provider with respect to any matter set forth on or required to be set forth on Section 4.04(b)(B) of the Company Disclosure Schedules (clauses (i) through (viii) of this Section 10.02(a) together, the “Company Indemnifiable Matters” and each individually a “Company Indemnifiable Matter””)fraud relates.
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Indemnification for Company Matters. From and after the Closing, by virtue of the Equity Purchase and Closing (but subject to the terms, conditions and limitations of this Article XSection 11.1), the Securityholders Indemnitors shall, severally (in accordance with each Securityholder’s applicable Pro Rata Share upon the date of notice of each applicable claim), but not jointly, indemnify and hold harmless Buyer and its directors, officers, employees, Affiliates, agents, successors and assigns (collectively, indemnify each of the “Buyer Indemnified Parties”) Indemnitees from and against against, and shall reimburse each of the Indemnitees for, any Damages that are suffered or incurred at any time by any of the Indemnitees or that any of the Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any third party claim) and all Damages related to that arise from or arising out of or in connection with:
are a result of: (i) Any any inaccuracy in or breach of, of any representation or inaccuracy in, any of the representations or warranties warranty made by the Company in Article IV of this Agreement or in any Schedule or certificate (other than the Consideration Spreadsheet) delivered by or on behalf of the Company pursuant to this Agreement, in each case, as of the date hereof of this Agreement (without giving effect to: (A) any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty; or (B) any update or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement); (ii) any inaccuracy in or breach of any representation or warranty made by the Company (A) in this Agreement as if such representation or warranty was made at and as of the Closing Date (except in the case of representations and warranties that by their terms speak as of a specific date, which representations and warranties shall be true and correct as of such date) and assuming that all qualifications contained in this Agreement and each such Schedule or certificate as to materiality, including each qualifying reference to the defined term “Company Material Adverse Change” the words “material” and “materially” and all similar phrases and words (excluding the defined term “Material Contract”), were deleted therefrom;
(ii) any breach of or failure to perform on or prior to the Closing any covenant, or agreement made by the Company herein that are required to be performed on or prior to the Closing;
(iii) any Closing Indebtedness or Unpaid Company Transaction Expenses, to the extent not accounted for in the determination of the Aggregate Closing Consideration and paid as of Closing or in the determination of the Adjustment Amount pursuant to Section 3.04(b);
(iv) any fraud on the part of the Company;
(v) any claims by or on behalf of any holder or former holder of Equity Interests of the Company or rights to acquire Equity Interests of the Company (including any claims arising out of or in connection with the Equity Purchase or any of the other transactions contemplated hereby, any claims alleging violations of fiduciary duty by any current or former member of the Company Board or any of the current or former officers of the Company) solely in respect to (A) such Person’s ownership or purported ownership of any Equity Interests of the Company or rights to acquire Equity Interests of the Company or (B) solely in respect to the period prior to the Closing, a breach of fiduciary duties with respect to this Agreement, or the transactions contemplated hereby, by either any current or retired member of the Company Board;
(vi) any (A) Taxes of the Company or any of the Company Subsidiaries with respect to any Pre-Closing Tax Period; (B) Taxes of any Securityholder (including capital gains Taxes arising as a result of the transactions contemplated by this Agreement) or any of their Affiliates (excluding the Company and the Company Subsidiaries) for any taxable period for which Buyer, its Affiliates, the Company or any Company Subsidiary is held liable; (C) Taxes for which the Company or any of the Company Subsidiaries (or any predecessor of the foregoing) is held liable by reason of such entity being included in any consolidated, affiliated, combined or unitary group or by reason of being a transferee or successor, in each case, at any time on or before the Closing Date; (D) Taxes imposed on or payable by third parties with respect to which the Company or any of the Company Subsidiaries has an obligation to indemnify such third party pursuant to a transaction consummated on or prior to the Closing; and (E) any withholding Taxes imposed with respect to payments made pursuant to this Agreement or the Equity Interests acquired by Buyer at the Closing Certificate (in each case, without giving effect to (1) any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty or (2) any update or modification to the extent not fully withheld by Disclosure Schedule made or purported to have been made on or after the Payment Agent, 102 Trustee and/or the Escrow Agent upon actual payment to the Securityholder or to the extent not previously withheld in whole or in part by the Company or otherwise not fully or partly paiddate of this Agreement); (iii) for which for which Buyer, its Affiliates, the Company or any Company Subsidiary is held liable; provided, however, that the Securityholders shall have no liability under this Section 10.02(a)(vi) for any Taxes to the extent such Taxes were specifically reflected as a liability in the in the determination regardless of the Aggregate Closing Consideration and paid as disclosure of Closing or in the determination of the Adjustment Amount pursuant to Section 3.04(b);
(vii) any inaccuracy in the Consideration Spreadsheet or the failure of the allocation of the Equity Purchase Consideration or Sales Milestone Consideration, in each case, as matter set forth in the Consideration Spreadsheet to be consistent Disclosure Schedule, any inaccuracy in all respects with this Agreement and or omission of any information from the Organizational Documents of Closing Balance Sheet or the Company;
(viii) any 341 Legal Proceeding; and
(ix) any amount paid to any service provider as reimbursement and/or as a gross up for Taxes incurred by such service provider with respect to any matter set forth on or required to be set forth on Section 4.04(b)(B) of the Company Disclosure Schedules (clauses (i) through (viii) of this Section 10.02(a) together, the “Company Indemnifiable Matters” and each individually a “Company Indemnifiable Matter””).Closing
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