Indemnification Obligations of Sellers. Sellers shall, jointly and severally, indemnify, save and keep harmless Purchaser and TCP II and each of their respective successors and permitted assigns against and from all Damages sustained or incurred by any of them resulting from or arising out of or by virtue of: (a) any inaccuracy in or breach of any representation and warranty made by any Seller in this Agreement or in any of the Seller Ancillary Documents; (b) any breach by any Seller of, or failure by any Seller to comply with, any of its respective covenants or obligations under this Agreement (including, without limitation, their respective obligations under this Article VIII); (c) the failure to discharge when due any liability or obligation of any of the Sellers other than the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligation; (d) any Third Party Claims to the extent caused by the acts or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and (e) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act, in whole or in part, on or prior to the date hereof, with respect to any Plan, Welfare Plan or Employee Benefit Plan which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discrimination. (f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 in the aggregate; provided, however, that there shall be no limitation on Sellers' indemnification obligations for a breach of a representation or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Computer Dynamics Inc), Asset Purchase Agreement (Total Control Products Inc)
Indemnification Obligations of Sellers. The Sellers (other than ----------------------------------------- Xxxxx X. Xxxxx, Xx.) shall, jointly and severally, indemnify, save defend, and keep hold harmless Purchaser Parent and TCP II the Surviving Corporation, and each of their respective successors affiliates, officers, directors, employees, agents, and permitted representatives, and the heirs, executors, successors, and assigns against of any of the foregoing (the "Parent-Indemnified Parties"), from, against, and from in respect of any and all Damages sustained claims, liabilities, obligations, damages, losses, costs, expenses, penalties, fines, and judgments (at equity or at law, including statutory and common), whenever arising or incurred by any (including amounts paid in settlement, costs of them resulting from or arising investigation, and reasonable attorneys' fees and expenses), to the extent they arise out of or by virtue ofrelate to:
(a) Any obligation of Company under a contract or commitment which is to be performed prior to the Closing Date, or any breach by Company of a contract or commitment occurring prior to the Closing Date;
(b) Any third-party claims or actions relating to events or circumstances occurring or existing with respect to the ownership, operation, and maintenance of Company and its Subsidiaries, its Business, and its assets on or prior to the Closing Date, except for liabilities of a type set forth on the Interim Balance Sheet;
(c) Any breach or inaccuracy of any representation or warranty made by Company or Sellers in this Agreement or any documents or agreements executed and delivered by Company or any Seller in connection with the transactions contemplated by this Agreement (without regard to any qualification or exception contained in such representation or warranty relating to materiality or material adverse effect), whether such representation or warranty is made as of the date hereof or as of the Closing Date; or
(d) Any breach of any representation and warranty covenant, agreement, or undertaking made by any Seller Company or Sellers in this Agreement or in any of the Seller Ancillary Documents;
(b) any breach documents or agreements executed and delivered by Company or any Seller of, or failure by any Seller to comply with, any of its respective covenants or obligations under this Agreement (including, without limitation, their respective obligations under this Article VIII);
(c) the failure to discharge when due any liability or obligation of any of the Sellers other than the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligation;
(d) any Third Party Claims to the extent caused by the acts or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act, in whole or in part, on or prior to the date hereof, with respect to any Plan, Welfare Plan or Employee Benefit Plan which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct transactions contemplated by this Agreement, The claims, liabilities, obligations, losses, damages, costs, expenses, penalties, fines, and judgments of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used Parent-Indemnified Parties described in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority this 10.01 as to which the Purchased Assets Parent-Indemnified Parties are subject, including, without limitation, laws, statutes and regulations relating entitled to occupational health and safety, equal employment opportunities, fair employment practices and discriminationindemnification are collectively referred to as "Parent Losses.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 in the aggregate; provided, however, that there shall be no limitation on Sellers' indemnification obligations for a breach of a representation or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34."
Appears in 1 contract
Indemnification Obligations of Sellers. Sellers shall, jointly and severally, severally shall indemnify, save defend and keep hold harmless Purchaser Buyer and TCP II and its Affiliates, and, effective as of the Closing, without duplication, the Companies, each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and permitted assigns against and from all Damages sustained or incurred by any of them resulting from or arising out of or by virtue of:
(a) any inaccuracy in or breach of any representation and warranty made by any Seller in this Agreement or in any of the Seller Ancillary Documents;
foregoing (bcollectively, the "Buyer Indemnified Parties") from, against and in respect of any breach by any Seller ofand all claims, liabilities (whether asserted or failure by any Seller to comply withunasserted, any of its respective covenants absolute or obligations under this Agreement contingent), obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, their respective amounts paid in settlement, costs and expenses of investigation and reasonable attorneys' fees and expenses) arising out of or relating to (a) any breach or inaccuracy of any representation or warranty made by Sellers in Article III of this Agreement (without giving effect to "Material Adverse Effect" or "in all material respects" qualifications contained in Article III of this Agreement other than those contained in Section 3.6) (other than a breach or inaccuracy of any representation or warranty under Section 3.16), (b) any breach or nonperformance of any covenant, agreement or undertaking of Sellers in this Agreement other than Seller's obligations under this Article VIII);
Section 5.6 to use its reasonable best efforts to satisfy the closing condition in Section 6.3(f) and (c) the failure agreements listed on Schedule 3.7. Notwithstanding the preceding sentence, the indemnification or indemnification procedures provided for under this Section 9.1 shall not apply to discharge when due any liability or obligation of any Tax matters, which shall be governed exclusively by Section 5.7. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Sellers other than the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligation;
(d) any Third Party Claims to the extent caused by the acts or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to Buyer Indemnified Parties described in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act, in whole or in part, on or prior to the date hereof, with respect to any Plan, Welfare Plan or Employee Benefit Plan which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority 9.1 as to which the Purchased Assets Buyer Indemnified Parties are subject, including, without limitation, laws, statutes and regulations relating entitled to occupational health and safety, equal employment opportunities, fair employment practices and discriminationindemnification are hereinafter collectively referred to as "Buyer Losses.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 in the aggregate; provided, however, that there shall be no limitation on Sellers' indemnification obligations for a breach of a representation or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34."
Appears in 1 contract
Indemnification Obligations of Sellers. From and after the Closing, Sellers shall, and Seller Parent shall jointly and severally, severally indemnify, save defend, reimburse, and keep hold harmless the Purchaser and TCP II and each of their respective successors and permitted assigns Indemnified Parties from, against and from in respect of, any and all Damages sustained claims, liabilities, obligations, damages, losses, costs, expenses, penalties, fines and judgments (at equity or incurred by at law, including statutory and common) whenever arising or incurred, including amounts paid in settlement, costs of investigation and reasonable attorneys’ fees and expenses (collectively, “Losses,” provided, however that, notwithstanding anything to the contrary contained herein, Losses shall exclude any of them resulting from punitive or consequential damages to the extent not reasonably foreseeable, except to the extent any such Losses are actually awarded to a third party in a third party claim for which a Purchaser Indemnified Party is entitled to seek indemnification hereunder) arising out of or by virtue ofrelating to:
(a) any liability or obligation of Sellers or any of their Affiliates of any nature whatsoever, except the Assumed Liabilities;
(b) any Retained Liability;
(c) any breach or inaccuracy in or breach of any representation and or warranty made by any Seller Sellers in this Agreement or in any of the Seller Ancillary Documents;
Document (b) any for purposes of this Section 10.1(c), each such representation and warranty shall be read without reference to materiality or Material Adverse Effect for the purposes of determining whether there is a breach by any Seller of, or failure by any Seller to comply with, any inaccuracy and determining the amount of its respective covenants or obligations under this Agreement (including, without limitation, their respective obligations under this Article VIIIsuch Purchaser Losses);
(c) the failure to discharge when due any liability or obligation of any of the Sellers other than the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligation;
(d) any Third Party Claims to the extent caused breach of any covenant, agreement or undertaking made by the acts Sellers in this Agreement or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereofin any Seller Ancillary Documents; andor
(e) without being limited by paragraphs (aany matter set forth on Exhibit 10.1(e), (b), (c) or (d) . The Losses of this Section 8.3 (and without regard to the fact that any one or more of the items referred to Purchaser Indemnified Parties described in this Section 8.3(e10.1 as to which Purchaser Indemnified Parties are entitled to indemnification are collectively referred to as “Purchaser Losses”. The provisions for indemnity contained in Section 10.1(c) may be disclosed shall become effective only in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to event that the aggregate amount of all Purchaser or TCP II at Losses for which Sellers and Seller Parent are liable under this Article X exceeds [***] (the date hereof“Seller Basket”), (i) any action or failure to actin which event Sellers shall be responsible for the amount of such Purchaser Losses in excess of the Seller Basket; provided, in whole or in parthowever, on or prior to the date hereofthat, with respect to any Plan, Welfare Plan or Employee Benefit Plan which any Purchaser Losses for claims of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discrimination.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a10.1(c), the Sellers and Seller Parent shall not be liable for any individual or series of related Purchaser Losses which do not exceed [***] (the “Seller Mini-Basket”), and such Purchaser Losses shall not be counted toward the Seller Basket; and provided further, that claims for indemnification from Purchaser Losses relating to any inaccuracy or breach of the Fundamental Representations made by Sellers or Fraud committed by either Seller shall not be subject to the Seller Mini-Basket or Seller Basket. The aggregate amount of Purchaser Losses for claims of indemnification pursuant to Section 10.1(c) shall be limited to $3,000,000 in will not exceed [***] (the aggregate“Seller Cap”); provided, however, that there claims for indemnification from Purchaser Losses relating to any inaccuracy or breach of the Fundamental Representations made by Sellers or Fraud committed by either Seller shall not be subject to the Seller Cap. Notwithstanding anything to the contrary herein, other than with respect to claims for Fraud committed by either Sxxxxx, the Purchaser Indemnified Parties’ sole source of recovery for claims pursuant to this Article X shall be no limitation on Sellers' indemnification obligations for a breach of a representation or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34limited to the Consideration Shares.
Appears in 1 contract
Samples: Asset Purchase Agreement (Startengine Crowdfunding, Inc.)
Indemnification Obligations of Sellers. Sellers shall, jointly and severally, severally shall indemnify, save defend and keep hold harmless Purchaser Buyer and TCP II and its Affiliates, and, effective as of the Closing, without duplication, the Companies, each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and permitted assigns against and from all Damages sustained or incurred by any of them resulting from or arising out of or by virtue of:
(a) any inaccuracy in or breach of any representation and warranty made by any Seller in this Agreement or in any of the Seller Ancillary Documents;
foregoing (bcollectively, the "BUYER INDEMNIFIED PARTIES") from, against and in respect of any breach by any Seller ofand all claims, liabilities (whether asserted or failure by any Seller to comply withunasserted, any of its respective covenants absolute or obligations under this Agreement contingent), obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, their respective amounts paid in settlement, costs and expenses of investigation and reasonable attorneys' fees and expenses) arising out of or relating to (a) any breach or inaccuracy of any representation or warranty made by Sellers in Article III of this Agreement (without giving effect to "Material Adverse Effect" or "in all material respects" qualifications contained in Article III of this Agreement other than those contained in Section 3.6) (other than a breach or inaccuracy of any representation or warranty under Section 3.16), (b) any breach or nonperformance of any covenant, agreement or undertaking of Sellers in this Agreement other than Seller's obligations under this Article VIII);
Section 5.6 to use its reasonable best efforts to satisfy the closing condition in Section 6.3(f) and (c) the failure agreements listed on SCHEDULE 3.7. Notwithstanding the preceding sentence, the indemnification or indemnification procedures provided for under this Section 9.1 shall not apply to discharge when due any liability or obligation of any Tax matters, which shall be governed exclusively by Section 5.7. The claims, liabilities, obligations, losses, costs, expenses, penalties, fines and damages of the Sellers other than the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligation;
(d) any Third Party Claims to the extent caused by the acts or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to Buyer Indemnified Parties described in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act, in whole or in part, on or prior to the date hereof, with respect to any Plan, Welfare Plan or Employee Benefit Plan which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority 9.1 as to which the Purchased Assets Buyer Indemnified Parties are subject, including, without limitation, laws, statutes and regulations relating entitled to occupational health and safety, equal employment opportunities, fair employment practices and discriminationindemnification are hereinafter collectively referred to as "BUYER LOSSES.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 in the aggregate; provided, however, that there shall be no limitation on Sellers' indemnification obligations for a breach of a representation or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34."
Appears in 1 contract
Indemnification Obligations of Sellers. Sellers (a) From and after the Closing and subject to the limitations set forth in this Article IX, each Seller shall, jointly severally and severallynot jointly, indemnifyindemnify Buyer and its Affiliates, their respective equity holders (other than the equity holders of Buyer) and the Representatives of each of the foregoing (collectively, the “Buyer Indemnified Persons”) for, and shall save and keep hold each of them harmless Purchaser against, and TCP II and pay on each of their respective successors and permitted assigns against and from all Damages sustained behalf or incurred by any reimburse each of them resulting from for, any Damages that any such Buyer Indemnified Person suffers, sustains or arising out becomes subject to, directly or indirectly, as a result of or by virtue ofin connection with:
(ai) any inaccuracy in or breach of any representation and or warranty made by such Seller in Article III; and
(ii) any nonfulfillment, nonperformance or other breach of any covenant, obligation or agreement of such Seller in this Agreement or in any of the Seller Ancillary Documents;Agreement.
(b) any breach by any Seller ofFrom and after the Closing and subject to the limitations set forth in this Article IX, or failure by any Seller to comply withSellers shall, severally and not jointly, in accordance with their respective Pro Rata Share, indemnify the Buyer Indemnified Persons for, and shall save and hold each of them harmless against, and pay on each of their behalf, any of its respective covenants or obligations under this Agreement (including, without limitation, their respective obligations under this Article VIII);
(c) the failure to discharge when due any liability or obligation of any of the Sellers other than the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to Damages that any such liability Buyer Indemnified Person suffers, sustains or obligation becomes subject to, directly or alleged liability or obligation;
(d) any Third Party Claims to the extent caused by the acts or omissions indirectly, as a result of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), connection with:
(i) any action inaccuracy in or failure breach of any representation or warranty made by the Company in Article IV;
(ii) any nonfulfillment, nonperformance or other breach of any covenant, obligation or agreement of the Company in this Agreement;
(iii) any unpaid Closing Indebtedness or Closing Transaction Expenses;
(iv) any (i) Taxes (or the non-payment thereof) of the Company or otherwise in relation to actthe conduct of the businesses of the Company for any Pre-Closing Tax Period, in whole including those Taxes set forth on the Tax Returns contemplated by Section 7.1 (subject to Section 7.1(d) with respect to Straddle Period Tax Returns), (ii) Taxes of any member of an affiliated, consolidated, combined or in part, unitary group of which the Company (or any predecessor) is or was a member on or prior to the date hereofClosing Date, with respect including pursuant to Section 1.1502-6 of the Treasury Regulations or any analogous or similar Legal Requirement, (iii) Taxes of any Person (other than the Company) that relate to an event or transaction occurring on or before the Closing Date that are imposed on the Company as a transferee or successor, by Contract or pursuant to any PlanLegal Requirement, Welfare Plan or Employee Benefit Plan which any (iv) Taxes or other Damages incurred by Buyer or the Company pursuant to Section 280G of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used Code in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or Transactions;
(v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect Liability under Title IV of ERISA that is imposed on or prior the Company solely due to the date hereof ofCompany being a Seller ERISA Affiliate;
(vi) any claims relating to allocation of the Transaction Consideration among Sellers, Optionholders, and the Warrantholder, including any inaccuracy or agreement of misrepresentation on the Allocation Certificate; and
(vii) any Seller with, or any license or Permit granted Proceeding relating to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discrimination.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 foregoing, including any Proceeding commenced by a Buyer Indemnified Person for purposes of Damages incurred by Purchaser pursuant to enforcing such Buyer Indemnified Person’s rights under this Article IX if such Buyer Indemnified Person is the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 prevailing party in the aggregate; provided, however, that there shall be no limitation on Sellers' indemnification obligations for a breach of a representation or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34such Proceeding.
Appears in 1 contract
Samples: Stock Purchase Agreement (Computer Programs & Systems Inc)
Indemnification Obligations of Sellers. Sellers shall, jointly and severally, shall indemnify, save on a joint and keep harmless Purchaser several basis, H&E, the Group and TCP II and each of their respective Affiliates, shareholders, partners, officers, directors, employees, agents, representatives, successors and permitted assigns (other than the Sellers and their Affiliates) and, for purposes of subclause (iii)(K) below, H&E Delaware (collectively, the “H&E Indemnified Parties”) and save and hold each of them harmless against and from all Damages sustained pay on behalf of or reimburse such H&E Indemnified Parties as and when incurred by for any loss, liability, action, cause of them resulting from action, cost, damage or expense, whether or not arising out of third party claims (including without limitation interest, penalties, reasonable attorneys’, consultants’ and experts’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, “Losses”), which any such H&E Indemnified Party may suffer, sustain or become subject to, arising out of, as a result of, in connection with, relating or incidental to or by virtue of:
(ai) any inaccuracy in facts or circumstances which constitute a breach of any representation and or warranty made by any Seller in of such Sellers (as applicable) under this Agreement Agreement, or in any of the Seller Ancillary Documentscertificates or other instruments or documents furnished by such Sellers (as applicable) pursuant to this Agreement;
(bii) any breach of any covenant, agreement or other provision (other than any representation or warranty) by any Seller of, the Group (prior to the Closing) or failure by any Seller to comply with, any of its respective covenants or obligations such Sellers (as applicable) under this Agreement (including, without limitation, their respective obligations under this Article VIII);Agreement; and
(ciii) the failure to discharge when due any liability or obligation of any of the Sellers following matters and any Liability with respect thereto:
(A) To the extent that the following are not Funded Excluded Liabilities: (i) All Excluded Indebtedness; and (ii) all Sellers’ Expenses.
(B) All Liabilities of the Group which are required to be included in the calculation of the Closing Working Capital but which have not been so included.
(C) All Affiliate Obligations, other than the Assumed Permitted Affiliate Obligations, including without limitation (1) all Xxxx-Xxxx Related Liabilities, whether arising prior, on or any claim against Purchaser subsequent to the Closing Date, (2) all Liabilities under the Xxxx Settlement Agreement, whether arising prior, on or TCP II subsequent to the Closing Date, and (3) all Liabilities in respect of management or similar payable to SBN Eagle.
(D) Any guarantee, financial accommodation or similar arrangement given, extended or entered into by the Group with respect to any such liability Liability, obligation, commitment, agreement, lease, license, document or obligation instrument of Sellers or alleged liability or obligation;their Affiliates.
(dE) The existence of any Third Party Claims Equity Equivalents other than the Equity Equivalents described on Disclosure Schedule 6.5; any claim by any Person to be the extent caused holder of Equity Equivalents which are not described on Disclosure Schedule 6.5; and any claim by any Person arising out of any redemption, repurchase or sale of any Equity Equivalents previously owned by such Person, including without limitation any redemption, repurchase or sale of any Equity Equivalents previously owned by any of Xxxx-Xxxx.
(F) Any Liability based on the violation of any Law by the acts Group or omissions Sellers in connection with the matters described in Paragraphs 1 through 5 of Disclosure Schedule 6.8 and Paragraphs 1 through 5 and 7 through 10 of Disclosure Schedule 6.9; and any fraud or intentional misrepresentation by any of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation in connection with this Agreement or any other Transaction Document or in connection with any business transaction with any customer or supplier of the Business prior to the date hereof; andGroup.
(eG) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more Any Liability of the items referred to in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act, in whole or in part, on Group arising as of or prior to the date hereofClosing to indemnify any director, officer or other Person in connection with respect their service to, employment by or retention by the Group or Sellers.
(H) Subject to the provisions of Section 9.10(e), all Sellers’ Released Claims.
(I) The Eagle Plaza Liabilities and any Plan, Welfare Plan Loss incurred by the Group or Employee Benefit Plan which any sought to be imposed upon the Group as a result of the Selling Entities or any ERISA Affiliate Eagle Plaza Liabilities; however, the indemnification obligations of any Sellers in respect of the Selling Entities has at any time maintained foregoing shall be limited in amount to the Eagle Plaza Escrow provided that (i) the Eagle Plaza Indemnity and the Eagle Plaza Releases have been executed and delivered by the required parties thereto on or administered or to which any of before the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; Closing Date and (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discriminationno Eagle Plaza Indemnity Default shall have occurred.
(fJ) Notwithstanding anything Any Liability arising out of, based upon or relating to the contrary contained in this Section 8.3Assigned Claims, (a) Purchaser agrees to pay 50% including any default of Sellers under or breach by Sellers of the first $100,000 terms of Damages incurred by Purchaser or their obligations under the assignment of the Assigned Claims executed pursuant to the provisions of Section 5.2(d).
(K) Any Proceeding commenced by any Person against H&E Indemnified Parties arising out of the Financing to the extent that any Proceeding or Loss relates to, arises out or is based upon (i) any information related to the Group or Sellers (excluding, in the case of Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxx, any information related to the ownership by Messrs. Xxxxxx and Sharp of equity interests in H&E or H&E Delaware or any relationship which Messrs. Xxxxxx and Xxxxx may have with H&E and H&E Delaware as a director or consultant to H&E or H&E Delaware) provided or made available to H&E by or on behalf of the Group or Sellers or their respective directors, officers, employees, representatives, accountants or advisers and used by H&E or H&E Delaware in any registration statement or similar offering or placement memorandum in connection with the Financing, provided that the Company has been provided a reasonable opportunity (and H&E will give the Company such reasonable opportunity) to review and comment on any such information relating to the Group or Sellers in such registration statement or similar offering or placement memorandum prior to filing with the SEC (in the case of a registration statement) or prior to finalizing (in the case of an offering or placement memorandum), or (ii) any matter which is the subject of any indemnification obligation of Sellers under this Section 8.3Agreement, including any breach of the representations and warranties of Sellers; however, the indemnification obligations of Sellers in respect of the foregoing shall be subject to the limitations set forth in Sections 11.2(c)(i) and (bii) Sellers' except to the extent that such indemnification obligations pursuant obligation relates to Section 8.3(a) shall be limited to $3,000,000 in the aggregate; provideda matter, however, that there shall be no limitation on Sellers' indemnification obligations for a breach of the representations and warranties of Sellers or any independent indemnification obligation of Sellers which is otherwise not subject to such limitations. Sellers acknowledge (including for purposes of clause (iii) of Section 11.2(b)) that they have had a representation reasonable opportunity to review and comment on the information relating to the Group or warranty Sellers contained in Sections 5.1the registration statement and amendments thereto heretofore filed by H&E Delaware with the U.S. Securities and Exchange and a draft dated January 4, 5.52006 of Amendment No. 3 thereto proposed to be filed by H&E Delaware. If and to the extent any provision of this Section 11.2 is unenforceable for any reason, 5.7(ceach of Sellers hereby agrees to make, on a joint and several basis, the maximum contribution to the payment and satisfaction of any Loss for which indemnification is provided in this Section 11.2 which is permissible under applicable laws. Notwithstanding anything contained herein, in no event shall the Group be required to provide indemnification or contribution for any obligation of Sellers under this Section 11.2(a), 5.14, 5.22, 5.24(e), 5.25 and 5.34.
Appears in 1 contract
Indemnification Obligations of Sellers. Sellers shallAfter the Closing, each Seller shall jointly and severallyseverally indemnify Buyer, indemnify, save the Company and keep harmless Purchaser and TCP II and each of their respective Affiliates, officers, directors, employees, successors and permitted assigns (other than Sellers) (collectively, “Buyer Indemnified Parties”) and save and hold each of them harmless against and from all Damages sustained pay on behalf of or reimburse Buyer Indemnified Parties as and when incurred by for any loss, liability, action, cause of them resulting from action, cost, damage, Tax or expense, whether or not arising out of third party claims (including (i) the present value of any tax benefits foregone as a result of Buyer’s inability to make the Section 338(h)(10) Election due to a breach of any representations, warranties or covenants of any Seller or the Company and (ii) interest, penalties, reasonable attorneys’, consultants’ and experts’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing and after deducting all insurance proceeds in connection with any of the foregoing) (collectively, “Losses”, and each a “Loss”), which any Buyer Indemnified Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of:
(ai) any inaccuracy in facts or circumstances which constitute a breach of any representation and or warranty made by any Seller in of the Company or Sellers under this Agreement Agreement, or in any of the Seller Ancillary Documentscertificates or other instruments or documents furnished by the Company or Sellers pursuant to this Agreement; provided, that for purposes of this ARTICLE VII, the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect;
(bii) any nonfulfillment or breach of any covenant, agreement or other provision by any Seller of, or failure by any Seller to comply with, any of its respective covenants or obligations Sellers under this Agreement (including, without limitation, their respective obligations under this Article VIII);Agreement; or
(ciii) the failure to discharge when due any liability or obligation of any of the Sellers other than the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligation;
(d) any Third Party Claims to the extent caused by the acts following items are not included in the calculation of Net Working Capital or omissions have not been taken into account in the calculation of Sellers prior the Purchase Price pursuant to Section 1.2(b)(ii): (x) any Indebtedness of the Company as of the Closing Date and (y) any Liability of the Company for Seller Expenses. If and to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (a), (b), (c) or (d) extent any provision of this Section 8.3 (and without regard 7.2 is unenforceable for any reason, each Seller hereby agrees to make the maximum contribution to the fact that any one or more payment and satisfaction of the items referred to Loss for which indemnification is provided for in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act7.2 which is permissible under applicable Laws. Notwithstanding anything contained herein, in whole no event shall the Company be required to provide indemnification or in part, on or prior to the date hereof, with respect to contribution for any Plan, Welfare Plan or Employee Benefit Plan which any obligation of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discrimination.
(f) Notwithstanding anything to the contrary contained in under this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 in the aggregate7.2; provided, however, that there this sentence shall not apply as to any proceeds a director or officer would be no limitation on Sellers' indemnification obligations for a breach of a representation or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 entitled to pursuant to and 5.34under the Company’s director and officers insurance.
Appears in 1 contract
Samples: Stock Purchase Agreement (Keystone Automotive Operations Inc)
Indemnification Obligations of Sellers. Sellers shall(i) Subject to the provisions of this ARTICLE VI, jointly each Seller will, up to such Seller’s Pro Rata Share, severally and severallynot jointly, indemnify, save and keep harmless indemnify the Purchaser and TCP II its Affiliates (including the Target Companies) and each of their respective successors directors, managers, officers, members, partners, employees, agents, representatives, successors, and permitted assigns (collectively, the “Purchaser Indemnified Parties”), and save and hold each of them harmless against and from all Damages sustained pay on behalf of or incurred by reimburse such Purchaser Indemnified Parties in respect of any of them resulting from Losses that any such Purchaser Indemnified Party actually suffers, sustains, or arising becomes subject to, to the extent such Losses relate to, arise out of or by virtue of:
result from: (aA) any breach or inaccuracy in or breach of any of any representation and or warranty made by any Seller in this Agreement or in any of the Seller Ancillary Documents;
(b) any breach by any Seller of, or failure by any Seller to comply with, any of its respective covenants or obligations under this Agreement (including, without limitation, their respective obligations under this Article VIII);
(c) the failure to discharge when due any liability or obligation of any of the Sellers other than the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligation;
Target Company contained in ARTICLE III; (dB) any Third Party Claims to the extent caused by the acts or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation Indebtedness of the Business prior to the date hereof; and
(e) without being limited by paragraphs type described in clauses (a), (b), (cd) or (dh) of this Section 8.3 (and without regard to the fact definition of Indebtedness that any one is not paid or more of the items referred to satisfied in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II full at the date hereof), Closing; (iC) any action Transaction Expense that is not paid or failure to actsatisfied in full at the Closing; (D) any Liability for Taxes of any Target Company or for which any Target Company is liable, in whole or in parteach case, on or prior to the date hereof, solely with respect to any Plan, Welfare Plan Pre-Closing Tax Period or Employee Benefit Plan which any portion of the Selling Entities or any ERISA Affiliate of any Straddle Period that begins on the first day of the Selling Entities has at Straddle Period and ends on the Closing Date as determined pursuant to Section 7.4(c); and (E) any time maintained or administered or to which any of Fraud Claim against the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; Target Companies.
(ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discrimination.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant Subject to the provisions of this Section 8.3; ARTICLE VI, each Seller will, individually as a Seller and solely for himself, herself or itself, severally and not jointly, indemnify the Purchaser Indemnified Parties and save and hold each of them harmless against and pay on behalf of or reimburse such Purchaser Indemnified Parties in respect of any Losses that any such Purchaser Indemnified Party actually suffers, sustains, or becomes subject to, to the extent such Losses relate to, arise out of or result from: (bA) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 in the aggregate; provided, however, that there shall be no limitation on Sellers' indemnification obligations for a any breach or inaccuracy of a any representation or warranty of such Seller contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34ARTICLE IV; (B) any nonfulfillment or breach of any covenant or agreement of such Seller under this Agreement or any Ancillary Document; or (C) any Fraud Claim against such Seller.
Appears in 1 contract
Samples: Stock Purchase Agreement (SMTC Corp)
Indemnification Obligations of Sellers. Sellers shall, shall jointly and severallyseverally defend, indemnify, save and keep harmless Purchaser and TCP II and each of their respective its successors and permitted assigns against and from all Damages sustained or incurred by any of them resulting from or arising out of or by virtue of:
(a) any inaccuracy in or breach of any representation and or warranty made by any Seller Sellers in this Agreement in Sellers’ Ancillary Documents or in any closing document delivered to Purchaser in connection with this Agreement, in each case as if such representation and warranty was made as of the Seller Ancillary DocumentsClosing Date;
(b) any breach by any Seller Sellers of, or failure by any Seller Sellers to comply with, any of its respective their covenants or obligations under this Agreement (including, without limitation, their respective its obligations under this Article VIIIX);
(c) the failure to discharge when due any liability or obligation of any (x) operations of the Sellers Company or any Subsidiary prior to the Closing, other than as pertains to the Assumed LiabilitiesPark Record or Xxxxxx Printing, or any claim against Purchaser assets of the Company or TCP II with respect any Subsidiary which were as of or prior to the Closing not used or held for use in the operations of the Park Record or Xxxxxx Printing and (y) any such liability indebtedness of the Company or obligation or alleged liability or obligationits Subsidiaries not reflected on the Final Purchase Price Adjustment Schedule;
(d) any Third Party Claims to the extent caused by the acts benefit or omissions of Sellers other liability accruing prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act, in whole or in part, on or prior to the date hereof, Closing Date with respect to any Plan, Welfare Plan or Employee Benefit Plan which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities Company has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities Company has at any time contributed; ;
(iie) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior as to the date hereof following, without regard to whether any matter may be disclosed in the Disclosure Schedule or the migration otherwise known to or from the Leased Premises or Purchaser: Table of Contents
(i) any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or tax liability arising in any manner whatsoever out of the violation Company’s or its Subsidiaries’ operations or the ownership of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable its assets on or prior to the date hereof; (iv) any inaccuracy Closing which are not reflected in the representations set forth in Section 5.14 hereof; or Final Purchase Price Adjustment Schedule;
(vii) any violation ofby the Company or its agents, or delinquency in with respect to, any decree, order or order, arbitration award or award, law, statute, or regulation in effect on or prior to the date hereof ofClosing, or of any agreement of any Seller the Company with, or any license license, or Permit permit granted to any Sellers the Company from, any Governmental Authority federal, state or local governmental authority to which the Purchased Assets properties, assets, personnel or business activities of the Company are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, building codes, zoning, equal employment opportunities, fair employment practices and discrimination.;
(fiii) Notwithstanding anything any generation, transportation, storage, treatment or Release of any Hazardous Material by the Company or its agents occurring on or prior to the contrary contained Closing (including without limitation those that result in this Section 8.3any Release or treatment of Hazardous Materials after the Closing), at (aA) Purchaser agrees any Facility included within the Purchased Assets, or (B) any Offsite Facility with regard to pay 50% any Hazardous Materials with which the Company was involved in any way at any time;
(iv) any discharges to or from storm, ground or surface waters or wetlands, and any air emissions or pollution, emanating from the Real Estate, which result from or are caused by any activities of the first $100,000 Company, its agents or its agents prior to the Closing; or,
(v) any violation or alleged violation by the Company or its agents of, or obligation imposed by, any Environmental Law as a result of Damages incurred by activities, events, conditions or occurrences with respect to the Company prior to the Closing. Sellers’ obligations under Section 10.2(a) hereof shall survive for two years following the Closing Date, except that Sellers’ obligations (x) for breaches or inaccuracies of Sections 4.1(a). 4.1(b). 4.1(c), 4.1(g)(i), 4.1(g)(2), 4.2(c), 4.7(a), 4.8(c), 4.9, 4.11 and 4.14(e) shall survive without limitation and (y) will survive with respect to any claim for indemnification made prior to the expiration of such period until such claim is resolved. Each of Seller’s other obligations under other provisions of Section 10.2 shall survive without limitation. Notwithstanding any other provision of this Agreement, neither Seller shall be liable to Purchaser pursuant to under the provisions of Section 10.2(a) hereof (other than in with respect to breaches or inaccuracies of representations or warranties set forth in Sections 4.1(a). 4.1(b). 4.1(c), 4.1(g)(i), 4.1(g)(ii), 4.2(c) and 4.14(e)) unless and until the aggregate of all of Purchaser’s damages for such breaches exceeds $100,000 (the “Basket Amount”), in which case, however, Sellers shall then be liable for the full amount of such damages without regard to the Basket Amount. In no event shall the obligations of any Seller to the Purchaser under this Section 8.3; 10.2 exceed the portion of the Purchase Price paid to such Seller. The rights of Purchaser under this Section 10.2 (and (b) Sellers' indemnification obligations pursuant to under Section 8.3(a11.1) shall be limited to $3,000,000 in the aggregate; provided, however, that there shall be no limitation on Sellers' indemnification obligations exclusive remedy of Purchaser for a breach breaches of a representation (or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34.inaccuracies in) any provision of this Agreement. Table of Contents
Appears in 1 contract
Indemnification Obligations of Sellers. Sellers shallSubject to the provisions of Sections 9.3, 9.4 and 9.5, Sellers, Speedy U.S.A. and Parent, jointly and severally, severally shall indemnify, save defend and keep hold harmless Purchaser Purchaser, Monro and TCP II their subsidiaries and Affiliates, each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and permitted assigns of any of the foregoing (collectively, the "Purchaser Indemnified Parties") from, against and from in respect of any and all Damages sustained claims, liabilities, Environmental Liabilities, obligations, losses, costs, expenses, penalties, fines and other judgments (at equity or at law) and damages whenever arising or incurred by any (including, without limitation, amounts paid in settlement in accordance with Section 9.3, costs of them resulting from or investigation and reasonable attorneys' fees and expenses) (collectively, "Losses") arising out of or by virtue ofrelating to:
(a) any Excluded Asset or Excluded Liability;
(b) all or any portion of any Assumed Liability (other than (i) liabilities arising after the Closing Date under Real Property Leases and Assumed Contracts and (ii) Environmental Liability) that is not included as a liability on the Statement of Net Assets;
(c) all or any portion of any Assumed Liability of a nature reflected on the Statement of Net Assets that is in excess of the amount of such Assumed Liability included as a liability on the Statement of Net Assets;
(d) any breach or inaccuracy in or breach of any representation and or warranty made by any Seller Sellers in this Agreement or in any of the Seller Ancillary Documents;
Document (b) except for any breach or inaccuracy of any representation or warranty under Section 3.18, which shall be governed by any Seller of, or failure by any Seller to comply with, any of its respective covenants or obligations under this Agreement (including, without limitation, their respective obligations under this Article VIIISection 9.1(k));
(ce) the failure to discharge when due any liability or obligation breach of any of the covenant, agreement or undertaking made by Sellers other than the Assumed Liabilities, in this Agreement or in any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligationSeller Ancillary Document;
(df) except for any Third Party Claims matters related to the extent caused Excluded Assets or Excluded Liabilities (which shall be governed by the acts or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (aSection 9.1(a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action Releases or failure threatened Releases of Hazardous Materials at or from the property owned or operated, or formerly owned or operated, by the Sellers or a predecessor in interest to act, the extent such Releases or threatened Releases result from conditions in whole or in part, existence on or prior to the date hereof, with respect to any Plan, Welfare Plan or Employee Benefit Plan which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributedClosing Date; (ii) the violation any violations of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used Laws in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereofexistence at, or arising in any manner whatsoever out of prior to, the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereofClosing Date; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on Environmental Claims related to conditions in existence at or prior to the date hereofClosing Date; and (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported, or disposed by the Sellers or a predecessor in interest;
(g) any fraud by Sellers or any of their Affiliates in connection with the transactions contemplated hereby;
(h) any failure or inability of Sellers to obtain consents to the assignment of the Seller Contracts listed on SCHEDULE 3.3(i);
(i) any breach or inaccuracy in of the representations set forth representation of Sellers in Section 5.14 hereof; 3.3(b) as to Real Property Leases or any claim by a landlord that its consent to assignment of any real property lease was required and was not obtained;
(vj) the costs or expenses of obtaining consents to the assignment of any Real Property Leases;
(k) any violation of, breach or delinquency inaccuracy of the representation or warranty made by Sellers in respect to, Section 3.18 in this Agreement; or
(l) any decree, order or arbitration award or law, statute, or regulation failure to Sellers to have completed any of the matters referred to in effect on or prior to Schedule 1.4(b) and Section 5.11(a) by the date hereof of, or agreement Closing Date. 44 The Losses of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority the Purchaser Indemnified Parties described in this Section 9.1 as to which the Purchased Assets Purchaser Indemnified Parties are subjectentitled to indemnification are hereinafter collectively referred to as "Purchaser Losses"; PROVIDED, includingHOWEVER, without limitation, laws, statutes and regulations relating that Purchaser shall not be entitled to occupational health and safety, equal employment opportunities, fair employment practices and discrimination.
(f) Notwithstanding anything indemnification for any type of Loss to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 in the aggregate; provided, however, extent that there is a reserve for such type of Loss on the Statement of Net Assets, in which case Purchaser Losses shall be no limitation on Sellers' indemnification obligations for a breach only include the Losses of a representation or warranty contained that type in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34excess of such reserve.
Appears in 1 contract
Indemnification Obligations of Sellers. Sellers shallXxxxx (and if the transaction contemplated by this Agreement is not consummated, Sellers, jointly and severally) shall defend, indemnify, save and keep Purchaser Indemnitees forever harmless Purchaser and TCP II and each of their respective successors and permitted assigns against and from all Damages sustained or incurred by any Purchaser Indemnitee as a result of them resulting from or arising out of or by virtue ofof or in connection with:
(a) any inaccuracy in or breach of any representation and warranty made by any Seller the Sellers in this Agreement or in any of the Seller Ancillary DocumentsAgreement;
(b) any breach by any Seller the Sellers of, or failure by any Seller Sellers to comply with, any of its respective covenants or their obligations under this Agreement (including, without limitation, their respective obligations under this Article VIIIVI);
(c) the failure to discharge when due any liability or obligation of any of the Sellers other than the Assumed LiabilitiesExcluded Liability, or any claim against Purchaser or TCP II the Surviving Corporation with respect to any such liability or obligation Excluded Liability or alleged liability or obligation;
Excluded Liability (d) any Third Party Claims to the extent caused by the acts or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages liability on account of Taxes payable by the Company or for which arise out of Sellers' the Company is liable (except as otherwise provided by this Agreement), either by operation of the Business prior law or pursuant to the date hereof; andprovisions of this Agreement);
(ed) without being limited by paragraphs (a), (b), ) through (c) or (d) of this Section 8.3 (above and without regard to the fact that information with regard to or related to any one or more of the items referred to in this Section 8.3(e6.2(d) may be disclosed in the Disclosure Statement Schedule or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II Merger Sub at the date hereof), of this Agreement or on the Closing Date:
(i) any action failure timely to pay any and all Taxes (including estimated Taxes), file all Returns and otherwise do any and all acts and things required to be paid, filed or done, as the case may be, by the Company with respect to all taxable periods or portions of periods ending on or prior to the Effective Time, and any and all penalties, interest and other costs or expenses associated with the failure to acttimely pay such Taxes, in whole file such Returns or in partdo such acts and things, and any failure to establish sufficient reserves for such Taxes, penalties, interest and other costs or expenses, and
(ii) any Taxes (including estimated Taxes) unpaid as of the Effective Time (whether or not due and payable on or before the Closing Date and whether or not described above) imposed on the Company with respect to all taxable periods or portions of periods ending on or prior to the Closing Date imposed on the Company or by reason of the affiliation of the Company, on or prior to the date hereofClosing Date, with any Person (such as liability under consolidated returns);
(e) Xxxxx'x continued use of the name "Xxxxx U.K." consistent with the terms of Section 5.8;
(f) any Liability incurred for claims for benefits arising under any Employee Benefit Plan or arising from any action or omission with respect to any Plan, Welfare Plan or Employee Benefit Plan which any of on or before the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior Closing Date except to the date hereof or extent such Liability has been accrued on the migration Closing Balance Sheet; or
(g) without limiting the generality of Section 6.2(c) and without regard to the fact that information with regard to or from related to this Section 6.2(g) may be disclosed in the Leased Premises Disclosure Schedule or in any other real property used in connection with the conduct of the Business documents included or referred to therein or may be otherwise known to Purchaser or Merger Sub at any time prior to the date hereof, of this Agreement or arising in any manner whatsoever out of on the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return)Closing Date, any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation breach by Sellers of, or delinquency in respect tofailure of Sellers to comply with, any decreeof their obligations under that certain Developers Agreement by and between the Village of Xxxxxxxx, order or arbitration award or lawWisconsin and the Company dated February 5, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discrimination1996.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 in the aggregate; provided, however, that there shall be no limitation on Sellers' indemnification obligations for a breach of a representation or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34.
Appears in 1 contract
Samples: Merger Agreement (Alvey Systems Inc)
Indemnification Obligations of Sellers. Subject to the limitations set forth in Sections 9.4 and 9.5, from and after the date of this Agreement, Sellers shall, shall jointly and severally, severally indemnify, save defend and keep hold harmless Purchaser Buyer and TCP II its Affiliates and each of their respective officers, directors, employees, agents and representatives and each of the heirs, executors, successors and permitted assigns against and from all Damages sustained or incurred by any of them resulting from or arising out of or by virtue of:
(a) any inaccuracy in or breach of any representation and warranty made by any Seller in this Agreement or in any of the Seller Ancillary Documents;
foregoing (bcollectively, the "Buyer Indemnified Parties") from, against and in respect of any breach by any Seller ofand all claims, liabilities (whether asserted or failure by any Seller to comply withunasserted, any of its respective covenants absolute or obligations under this Agreement contingent), obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law) and damages (including, without limitation, their respective obligations under this Article VIIIamounts paid in settlements permitted hereunder, costs and expenses of investigation and reasonable attorneys' fees and expenses) (collectively, "Losses");
(c) the failure to discharge when due any liability , whenever arising or obligation of any of the Sellers other than the Assumed Liabilitiesincurred, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligation;
(d) any Third Party Claims to the extent caused by the acts or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise arising out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act, in whole or in part, on or prior to the date hereof, with respect to any Plan, Welfare Plan or Employee Benefit Plan which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discrimination.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% any breach of the first $100,000 of Damages incurred any representation or warranty made by Purchaser pursuant to the provisions Sellers in Article III of this Agreement (other than Section 8.3; 3.16) or, if the Closing occurs, any failure of any such representations and (b) Sellers' indemnification obligations pursuant warranties which are not given as of a specified date to Section 8.3(a) shall be limited true and correct as of and as if made on the Closing Date, in each case without giving effect to $3,000,000 any "Company Material Adverse Effect", "in the aggregateall material respects" or other similar materiality qualification contained in Article III of this Agreement; provided, however, that there notwithstanding the foregoing (i) such materiality qualifications shall continue to be given effect for purposes of Section 3.6, (ii) the "Company Material Adverse Change" qualification shall continue to be given effect for purposes of Section 3.7 and (iii) any matters that would have been a Company Material Adverse Effect or a Company Material Adverse Change but for clause (i) or (ii) of the proviso to the definition of Company Material Adverse Effect shall be no limitation on Sellers' disregarded for all purposes of this Article IX, and (b) any breach or nonperformance of any covenant, agreement or undertaking of Sellers in this Agreement. Notwithstanding the preceding sentence, the indemnification obligations or indemnification procedures provided for a breach under this Section 9.1 shall not apply to Tax matters, which shall be governed exclusively by Section 5.8. The Losses of a representation or warranty contained the Buyer Indemnified Parties described in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34this Section 9.1 as to which the Buyer Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as "Buyer Losses."
Appears in 1 contract
Indemnification Obligations of Sellers. Sellers shall(i) From and after the Closing and subject to the limitations set forth in this Section 2.09, jointly each Seller (“Indemnifying Seller”) indemnifies the Buyer and severallyits Affiliates, indemnifytheir respective equity holders (other than the Indemnifying Seller) and the representatives of each of the foregoing (collectively, the “Buyer Indemnified Persons”) for, and shall save and keep hold each of them harmless Purchaser against, and TCP II and pay on each of their respective successors and permitted assigns against and from all Damages sustained behalf or incurred by any reimburse each of them resulting from for, any Damages that any such Buyer Indemnified Person suffers, sustains or arising out becomes subject to, directly or indirectly, as a result of or by virtue of:
in connection with: (aA) any inaccuracy in or breach of any representation and or warranty made by the Indemnifying Seller in this Agreement; (B) any nonfulfillment, nonperformance or other breach of any covenant, obligation or agreement CONFIDENTIALPage 7 of the Indemnifying Seller in this Agreement or that is not remedied in any applicable cure period, if any; or (C) criminal act, violation of the Seller Ancillary Documents;Securities Laws, fraud or gross negligence by Indemnifying Seller.
(bii) any breach by any Seller of, or failure by any Seller to comply with, any of its respective covenants or obligations under this Agreement (including, without limitation, their respective obligations under this Article VIII);
(c) From and after the failure to discharge when due any liability or obligation of any of the Sellers other than the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligation;
(d) any Third Party Claims Closing and subject to the extent caused by the acts or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to limitations set forth in this Section 8.3(e) may be disclosed in 2.09, LLC shall indemnify each of the Disclosure Statement Buyer Indemnified Persons for, and shall save and hold each of them harmless against, and pay on each of their behalf, any Damages that any such Buyer Indemnified Person suffers, sustains or becomes subject to, directly or indirectly, as a result of or in connection with: (A) any documents included inaccuracy in or referred breach of any representation or warranty made by the LLC in this Agreement; (B) any nonfulfillment, nonperformance or other breach of any covenant, obligation or agreement of the LLC in this Agreement; (C) Taxes (or the non-payment thereof) of the LLC or otherwise in relation to therein or may be otherwise known to Purchaser or TCP II at the date hereof)conduct of the businesses of the LLC for any Pre-Closing Tax Period, (iiii) Taxes of any action member of an affiliated, consolidated, combined or failure to act, in whole unitary group of which the LLC (or in part, any predecessor) is or was a member on or prior to the date hereofClosing Date, with respect including pursuant to Section 1.1502-6 of the Treasury Regulations or any analogous or similar legal requirement, (D) Taxes of any person that relate to an event or transaction occurring on or before the Closing Date that are imposed on the LLC as a transferee or successor, by contract or pursuant to any Planlegal requirement, Welfare Plan or Employee Benefit Plan which any (E) Taxes or other Damages incurred by Buyer pursuant to Section 280G of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used Code in connection with the conduct Exchange; (F) any Liability under Title IV of ERISA that is imposed on the Business at any time prior LLC solely due to the date hereof or LLC being a “Seller ERISA Affiliate” (as defined under the migration to or from the Leased Premises or any other real property used in connection with the conduct Employee Retirement Income Security Act of the Business at any time prior to the date hereof1974, as amended, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return“ERISA”), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discrimination.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (bG) Sellers' indemnification obligations pursuant any Proceeding relating to any of the foregoing, including any Proceeding commenced by a Buyer Indemnified Person for purposes of enforcing such Buyer Indemnified Person’s rights under this Section 8.3(a2.09, if such Buyer Indemnified Person is the prevailing party in such Proceeding; and (H) shall be limited to $3,000,000 in the aggregate; providedcriminal act, howeverviolation of Securities Laws, that there shall be no limitation on Sellers' indemnification obligations for a breach of a representation fraud or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34gross negligence by LLC.
Appears in 1 contract
Indemnification Obligations of Sellers. Notwithstanding any other -------------------------------------- provision of this Agreement, Sellers shall, shall jointly and severallyseverally defend, indemnify, save and keep harmless Purchaser and TCP II and each of their respective its successors and permitted assigns against and from all Damages sustained or incurred by any of them resulting from or arising out of or by virtue of:
(a) any inaccuracy in or breach of any representation and or warranty made by any Seller Sellers in this -42- Agreement or in any closing document delivered to Purchaser in connection with this Agreement, irrespective of whether known to Purchaser as of or prior to the Seller Ancillary DocumentsClosing Date, except for matters expressly described and set forth in Purchaser's Phase I Report or in the owner's title insurance policy described in Section 8.2(l) of this Agreement;
(b) any breach by any Seller Sellers of, or failure by any Seller Sellers to comply with, any of its respective their covenants or obligations under this Agreement (including, without limitation, their respective obligations under this Article VIIIX);
(c) the failure to discharge when due any liability or obligation of any of the Sellers other than the Assumed Excluded Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligationExcluded Liability;
(d) any Third Party Claims to the extent caused by the acts benefit or omissions of Sellers other liability accruing prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof; and
(e) without being limited by paragraphs (a), (b), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more of the items referred to in this Section 8.3(e) may be disclosed in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act, in whole or in part, on or prior to the date hereof, Closing Date with respect to any Plan, Welfare Plan or Employee Benefit Plan other than the Xxxxxx Sun Pension Plan of Sellers being expressly assigned to and assumed by Purchaser pursuant to this Agreement which any of the Selling Entities Sellers or any an ERISA Affiliate of any of the Selling Entities has have at any time maintained or administered or to which any of the Selling Entities Sellers or any ERISA Affiliate of any of the Selling Entities has have at any time contributed; contributed (iiincluding, without limitation, any liability for health continuation requirements under Code Section 4980B or Part 6 of Subtitle B of Title I of ERISA) which relate to employees of the violation Newspapers and any liability arising pursuant to Title IV of ERISA for plan termination, withdrawal or partial withdrawal from any Environmental Law or Multiemployer Plan with respect to employees of the presence or release of any Hazardous Materials uponNewspapers, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at lien to enforce any time Title IV liability or any liability for retiree benefits accrued prior to the date hereof or the migration Closing Date with respect to or from the Leased Premises or any other real property used in connection with the conduct employees of the Business at any time prior to Newspapers;
(e) without being limited by the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; foregoing paragraphs (iiia) any liability for Taxes owed by any Seller through (whether or not shown on any Returnd), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy except for matters disclosed in the representations Disclosure Schedule and except for matters expressly described and set forth in Purchaser's Phase I Report (other than with respect to Sellers' transportation and disposal offsite of waste ink and solvents, as therein described) or matters expressly described in the owner's title insurance policy described in Section 5.14 hereof; or 8.2(l) of this Agreement:
(vi) any violation by Sellers, their agents or Affiliates of, or delinquency in with respect to, any decree, order or order, arbitration award or award, law, statute, or regulation in effect on or prior to the date hereof of, Closing Date or of any agreement of any Seller Sellers with, or any license license, Permit or Environmental Permit granted to any Sellers from, any Governmental Authority Federal, state or local governmental authority to which the Purchased Assets properties, assets, personnel or business activities of the Newspapers are subjectsubject (or to which the Sellers are subject as it relates to the properties, assets, personnel or business activities of the Newspapers), including, without limitation, laws, statutes and regulations relating to occupational health and safety, building codes, zoning, equal employment opportunities, fair employment practices and discrimination.;
(fii) any generation, transportation, storage, treatment or Release of any Hazardous Material by Sellers, their agents or Affiliates occurring on or prior to the Closing Date (including without limitation those that result in any Release or treatment of Hazardous Materials after the Closing Date), at (A) any Facility included within the Purchased Assets, or (B) any Offsite Facility with regard to any Hazardous Materials with which Sellers were involved in any way at any time;
(iii) any discharges to or from storm, ground or surface waters or wetlands, and any air emissions or pollution, emanating from the Real Estate, which (a) with respect to the real property and all appurtenances thereto, and improvements thereon described in Section 1.2 of this Agreement, result from or are caused by any activities of Sellers, their agents or Affiliates, and (b) with respect to all other real property leased by Sellers included in the Purchased Assets, and all appurtenances thereto and improvements thereon, result from or are caused by any activities of Sellers, their agents or Affiliates during the term of Sellers' leases with respect thereto; or,
(iv) any violation or alleged violation by Sellers, their agents or Affiliates of, or obligation imposed by, any Environmental Law as a result of activities, events, conditions or occurrences with respect to the Newspapers during the period the Newspapers were owned by Sellers prior to the Closing Date. Sellers' obligations under this Section 10.2 shall be subject to the procedures set forth in Article X and shall extend until the applicable statute of limitations with respect to the filing of Third Party Claims with regard thereto shall have expired, except that Sellers' obligations under Sections 10.2(a) with respect to its warranties and representations under all sections of this Agreement other than Sections 4.2(d) and 4.9 shall extend for only two (2) years following the Closing Date, and Sellers' obligations with respect to its warranties and representations under Section 4.9 and Sellers' indemnification obligations under Section 10.2(e) shall extend for only five years, provided, that if at the end of such two year and five year periods, respectively, there shall then remain pending any claims with respect to such warranties, representations and indemnification obligations for which Purchaser has provided Sellers with written notice, Purchaser shall continue to have the right to be indemnified by Sellers with respect thereto until such claims have been definitively resolved. Notwithstanding anything to the contrary contained in this Section 8.3Agreement, (a) Purchaser agrees except for claims relating to pay 50% breaches of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; Sellers' warranties and (brepresentations under Sections 4.2(d) Sellers' indemnification obligations under 10.2(d) or (e), Sellers' covenants under Sections 6.2(d), (viii)-(xiii) and (xv), Sellers shall not be liable to Purchaser unless the aggregate of all Damages suffered by Purchaser under the provisions of this Agreement, in the aggregate, exceeds $50,000 and (b) in no event shall Sellers be liable in excess of the Purchase Price with respect to the entirety of its indemnity obligations pursuant to this Agreement, and further provided, that with respect to Purchaser's indemnity obligations under Section 10.2(e) of this Agreement and with respect to breaches of Sellers' warranties and representations pursuant to Section 8.3(a) shall be limited to $3,000,000 4.9 of this Agreement, in the aggregate; provided, however, that there shall be no limitation on event will Sellers' indemnification aggregate indemnity obligations for a breach be in excess of a representation or warranty contained in Sections 5.1, 5.5, 5.7(cFive Million Dollars ($5,000,000), 5.14, 5.22, 5.24(e), 5.25 and 5.34.
Appears in 1 contract
Samples: Asset Purchase Agreement (Garden State Newspapers Inc)
Indemnification Obligations of Sellers. Sellers shallSubject to the provisions contained in this Article VIII, from and after the Closing, Sellers, jointly and severallyseverally (subject to Sections 8.3 and 8.5), indemnifyshall indemnify and hold harmless Buyer, save the Company and keep harmless Purchaser and TCP II and each of their respective Affiliates, officers, directors, employees, agents, representatives, successors and permitted assigns against and from all Damages sustained (collectively, the “Buyer Indemnified Persons”) in respect of any Losses that any Buyer Indemnified Persons incurs, sustains or incurred by suffers directly or indirectly, as a result of, with respect to, in connection with or relating to any of them resulting from or arising out of or by virtue ofthe following:
(ai) any breach or inaccuracy in as of the date hereof or breach as of the Closing Date of any representation and or warranty made by any Seller of the Company or Sellers contained in this Agreement (other than those set forth in Article III) or in any certificate delivered by or on behalf of the Seller Ancillary DocumentsCompany or Sellers pursuant to Section 6.2;
(bii) any nonfulfillment or breach by the Company at or prior to the Closing of any Seller ofcovenant, agreement or failure by any Seller obligation applicable to comply with, any of its respective covenants or obligations it under this Agreement (including, without limitation, their respective obligations under this Article VIII)Agreement;
(ciii) the failure to discharge when due any liability or obligation allocation of the Purchase Price amongst the Equityholders, including as a result of any inaccuracy or error in the Proceeds Allocation Schedule and any claim by any Person that such Person owns, has or is entitled to rights in or to any shares of Company Ordinary Share, Company Preferred Share or other Equity Equivalents of the Sellers Company, other than as specifically set forth in the Assumed Liabilities, or any claim against Purchaser or TCP II with respect to any such liability or obligation or alleged liability or obligationProceeds Allocation Schedule;
(div) any Third Party Claims to the extent caused by the acts (A) Unpaid Seller Expenses or omissions of Sellers prior to the date hereof and not constituting an Assumed Liability, including, without limitation, Damages which arise out of Sellers' operation of the Business prior to the date hereof(B) Closing Indebtedness; and
(ev) without being limited by paragraphs (aA) any Taxes (or the non-payment thereof) of or imposed on the Company or any of its Subsidiaries for all taxable periods ending on or before the Closing Date (each, a “Pre-Closing Tax Period”) and the portion through the end of the Closing Date (as determined in accordance with Section 9.1(d)) for any taxable period that includes (but does not end on) the Closing Date (each a “Straddle Period”), (bB) any Taxes of any Person (other than the Company) imposed on the Company as a transferee or successor, by Contract (other than pursuant to Contracts the principal purpose of which is not the allocation or sharing of Taxes) or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing and (C) any withholding Taxes with respect the transactions contemplated in Article I, except, in each case under the foregoing clauses (A) and (B), (c) or (d) of this Section 8.3 (and without regard to the fact that any one or more extent of the items referred to in this Section 8.3(e) may be disclosed amount of any Taxes reflected as a Current Liability in the Disclosure Statement or in any documents included or referred to therein or may be otherwise known to Purchaser or TCP II at the date hereof), (i) any action or failure to act, in whole or in part, on or prior to the date hereof, with respect to any Plan, Welfare Plan or Employee Benefit Plan which any calculation of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time maintained or administered or to which any of the Selling Entities or any ERISA Affiliate of any of the Selling Entities has at any time contributed; (ii) the violation of any Environmental Law or the presence or release of any Hazardous Materials upon, about or beneath the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof or the migration to or from the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof, or arising in any manner whatsoever out of the violation of any Environmental Law pertaining to the Leased Premises or any other real property used in connection with the conduct of the Business at any time prior to the date hereof and the activities thereon, whether foreseeable or unforeseeable, provided such violation commenced prior to the date hereof; (iii) any liability for Taxes owed by any Seller (whether or not shown on any Return), any Related Entity or any affiliate of any Seller or any Related Entity that were due and payable on or prior to the date hereof; (iv) any inaccuracy in the representations set forth in Section 5.14 hereof; or (v) any violation of, or delinquency in respect to, any decree, order or arbitration award or law, statute, or regulation in effect on or prior to the date hereof of, or agreement of any Seller with, or any license or Permit granted to any Sellers from, any Governmental Authority to which the Purchased Assets are subject, including, without limitation, laws, statutes and regulations relating to occupational health and safety, equal employment opportunities, fair employment practices and discriminationNet Working Capital.
(f) Notwithstanding anything to the contrary contained in this Section 8.3, (a) Purchaser agrees to pay 50% of the first $100,000 of Damages incurred by Purchaser pursuant to the provisions of this Section 8.3; and (b) Sellers' indemnification obligations pursuant to Section 8.3(a) shall be limited to $3,000,000 in the aggregate; provided, however, that there shall be no limitation on Sellers' indemnification obligations for a breach of a representation or warranty contained in Sections 5.1, 5.5, 5.7(c), 5.14, 5.22, 5.24(e), 5.25 and 5.34.
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