Indemnification of Buyer Indemnified Parties. From and after the Closing, each Indemnifying Securityholder (severally and not jointly, in accordance with its Pro Rata Share) shall indemnify and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (including, from and after the Closing, the Company), and their respective direct and indirect partners, members, shareholders, directors, officers, employees and agents (collectively, the “Buyer Indemnified Parties”) from and against any and all Losses directly or indirectly arising out of, related to, accrued or incurred in connection with: (i) any breach of or inaccuracies in any representation or warranty made by the Company in this Agreement or in any certificate delivered to Buyer at the Closing; (ii) any breach or nonperformance of any covenant or obligation in this Agreement to be performed by the Company on or prior to the Closing hereunder; (iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any information, or breach of any representation or warranty, set forth in the Spreadsheet, including any failure to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares; (iv) any Fraud committed by or on behalf of the Company in connection with the Merger and the transactions described herein; (v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes; (vi) any Securityholder-Related Claims; (vii) the PPP Loan; (viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount; (ix) any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable pursuant to Section 2.6 upon the exchange of such Dissenting Shares and any costs or expenses incurred by a Buyer Indemnified Party in connection therewith; (x) for three (3) years from and after the Closing, disregarding any disclosure of any matter in the Disclosure Schedule, the matters set forth on Schedule 8.2(a)(x) (collectively, the “Specified Matters”); and (xi) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 8.
Appears in 1 contract
Indemnification of Buyer Indemnified Parties. From and after the Closing, each Indemnifying Securityholder (severally and not jointly, in accordance with its Pro Rata Share) shall indemnify and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (includingSubject to this Section 6.3, from and after the ClosingClosing Date, Sellers shall indemnify, defend and hold harmless Buyer, Buyer Cdn, Buyer's Parent and the Company), Companies and their respective direct and indirect partners, members, shareholdersmanagers, directors, officers, employees employees, representatives, successors and agents permitted assigns (collectively, the “collectively "Buyer Indemnified Parties”") in respect of, and Buyer Indemnified Parties shall be entitled to payment and reimbursement from and against any and Sellers (collectively the "Seller Indemnifying Parties") of the amount of, all Losses directly suffered, incurred or indirectly arising out paid by any Buyer Indemnified Party, by reason of, related toin whole or in part, accrued or incurred arising from, in connection with:
whole or in part, (ia) any breach by any Seller or Sellers' Representative of any covenant, agreement or inaccuracies in any representation or warranty made by the Company obligation in this Agreement (whether to be performed before, on or in after the Closing Date) or by any certificate delivered to Buyer at the Closing;
(ii) any breach or nonperformance Company of any covenant covenant, agreement or obligation in this Agreement to be performed by the Company on Closing Date, (b) any misrepresentation or prior to the Closing hereunder;
(iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any informationin, or breach of of, any representation or warranty, set forth in the Spreadsheet, including warranty made by any failure to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares;
(iv) any Fraud committed by or on behalf of the Company in connection with the Merger and the transactions described herein;
(v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger ConsiderationCompany, any Indemnified Taxes;
(vi) Seller or Sellers' Representative in this Agreement or any Securityholder-Related Claims;
(vii) the PPP Loan;
(viii) certificate delivered by any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable Seller pursuant to Section 2.6 upon the exchange of such Dissenting Shares 7.2 (individually, "Seller Rep" and collectively, "Seller Reps"), or (c) any costs Liability, whether arising before, on or expenses incurred by a Buyer Indemnified Party in connection therewith;
(x) for three (3) years from and after the ClosingClosing Date, disregarding any disclosure of any matter Company under or otherwise in respect of the Disclosure ScheduleCTA/KAL Sale Agreement. Notwithstanding anything herein to the contrary, in determining (a) if there is a misrepresentation or inaccuracy in, or a breach of, any Seller Rep and (b) the matters set forth on amount of related Losses, (i) each Seller Rep shall read as if made by such Indemnifying Party and (ii) all Materiality Qualifications contained in any such Seller Rep shall be ignored and in determining if there is a misrepresentation or inaccuracy in, or a breach of, Section 3.15, Schedule 8.2(a)(x) (collectively3.15, the “Specified Matters”); and
(xi) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 8including all information therein, shall be ignored.
Appears in 1 contract
Samples: Share Purchase Agreement (Vse Corp)
Indemnification of Buyer Indemnified Parties. From Subject to the overall limitations, minimum amounts and after time limitations set forth in Section 10.5 below and the Closinglimitations on recourse set forth in Section 10.6 below:
(a) The Company and each Atrium Indemnitor, each Indemnifying Securityholder (severally jointly and not jointlyseverally, in accordance with its Pro Rata Share) shall agree to indemnify and hold harmless Buyer and its respective officerseach officer, directorsdirector, employeesemployee, agents consultant, stockholder and Affiliates affiliate of Buyer (including, from and which after the Closing, Closing shall include the Company), Company and their respective direct and indirect partners, members, shareholders, directors, officers, employees and agents its subsidiaries) (collectively, the “"Buyer Indemnified Parties”") from and against any and all Losses damages, losses, claims, liabilities, demands, charges, suits, penalties, costs and expenses (including court costs and attorneys' fees and expenses incurred in investigating and preparing for any litigation or proceeding) (collectively, "Buyer Indemnified Costs") which any of the Buyer Indemnified Parties may sustain, or to which any of Buyer Indemnified Parties may be subjected, relating to or arising directly or indirectly arising out of, related to, accrued or incurred in connection with:
(i) any breach of claim, action, suit, inquiry, judicial or inaccuracies in any representation administrative proceeding, grievance or warranty made by arbitration pending or which may be brought against the Company or any of its subsidiaries, or any of their respective properties or assets, arising out of, in connection with or as a result of any facts or circumstances existing on or before the Closing Date (regardless of whether such matters have been disclosed to Buyer in the Schedules to this Agreement or otherwise, but specifically excluding (A) all matters referred to in Section 2.1(m) or disclosed on Schedule 2.1(m) and (B) all matters which are pending or which may be brought against any certificate delivered of the Bishxx Xxxsidiaries, or any of their respective properties or assets, arising out of, in connection with or as a result of any facts or circumstances existing on or before September 30, 1996) (such indemnified claims, matters, suits, inquiries, proceedings, grievances or arbitrations are referred to Buyer at the Closingherein as "Litigation Matters");
(ii) any breach claim, action, suit, inquiry, judicial or nonperformance administrative proceeding, grievance or arbitration pending or which may be brought against the Company or any of its subsidiaries, or any of their respective properties or assets, arising out of, in connection with or as a result of any covenant environmental matters disclosed in Part I of Schedule 2.1(m) (the "Pre-Existing Fojtxxxx Xxxironmental Matters"), including, but not limited to, any costs and expenses which any Buyer Indemnified Party may sustain in connection with any remediation, clean- up, modification, repairs, work, construction, alterations or obligation in this Agreement to be performed by the Company installations on or prior in connection with any real property to which the Closing hereunder;Pre-Existing Fojtxxxx Xxxironmental matters relate; and
(iii) regardless any breach or default by the Company or any of the disclosure Atrium Indemnitors of or under any of the representations, warranties or other provisions of Section 2.1. Buyer Indemnified Costs relating to or arising directly or indirectly out of Litigation Matters are herein referred to as "Buyer Indemnified Litigation Costs."
(b) Each Selling Securityholder other than the Bishxx Xxxemnitors severally agrees to indemnify and hold harmless each of the Buyer Indemnified Parties from and against any and all Buyer Indemnified Costs which any of the Buyer Indemnified Parties may sustain, or to which any of the Buyer Indemnified Parties may be subjected, arising out of any matter set forth in breach or default by such Selling Securityholder of or under any of the Disclosure Schedulerepresentations, warranties, covenants, agreements or provisions of this Agreement or any inaccuracy in any informationof the other Transaction Documents, other than the representations, warranties or breach other provisions of any representation or warranty, set forth in the Spreadsheet, including any failure to properly calculate Section 2.1 (for which the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares;Atrium Indemnitors have agreed under Section 10.1
(iva) any Fraud committed by or on behalf of to indemnify the Company in connection with the Merger and the transactions described herein;
(v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes;
(vi) any Securityholder-Related Claims;
(vii) the PPP Loan;
(viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable pursuant to Section 2.6 upon the exchange of such Dissenting Shares and any costs or expenses incurred by a Buyer Indemnified Party in connection therewithParties);
(x) for three (3) years from and after the Closing, disregarding any disclosure of any matter in the Disclosure Schedule, the matters set forth on Schedule 8.2(a)(x) (collectively, the “Specified Matters”); and
(xi) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 8.
Appears in 1 contract
Indemnification of Buyer Indemnified Parties. From and after the Closing, each Indemnifying Securityholder (severally and not jointly, in accordance with its Pro Rata Share) shall indemnify and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (includingSubject to this Section 6.3, from and after the ClosingClosing Date, the Company)Buyer, Buyer’s Parent and their respective direct and indirect partners, members, shareholders, directors, officers, employees employees, agents, representatives, Affiliates, successor and agents assigns (collectively, the collectively “Buyer Indemnified Parties”) will be indemnified and held harmless and shall be entitled to payment and reimbursement by the Stockholders, on a joint and several basis, solely and exclusively, subject to the remainder of this Section 6.3 with respect to the Principal Stockholders, from and against the Indemnity Escrow with respect to the amount of any and all Losses directly suffered, incurred or indirectly arising out paid by any Buyer Indemnified Party, by reason of, related toin whole or in part, accrued or incurred arising from, in connection with:
whole or in part, (ia) any breach by any Principal Stockholder of any covenant, agreement or inaccuracies obligation in this Agreement (whether to be performed before, on or after the Closing Date) or by the Company of any covenant, agreement or obligation in this Agreement to be performed on or before the Closing Date, or (b) any misrepresentation or inaccuracy in, or breach of, any representation or warranty made by the Company or any Principal Stockholder in this Agreement or the certificates delivered pursuant to Section 7.2.1. Notwithstanding the foregoing and subject to the remainder of this Section 6.3, from and after the Closing Date, the Principal Stockholders (the “Buyer Indemnifying Parties”) shall, jointly and severally, indemnify, defend and hold harmless the Buyer Indemnified Parties in respect of, and the Buyer Indemnified Parties shall be entitled to payment and reimbursement from the Principal Stockholders, jointly and severally, with respect to the amount of, (i) all Losses suffered, incurred or paid by any certificate delivered to Buyer at the Closing;
Indemnified Party, by reason of, in whole or in part, or arising from, in whole or in part, (iiA) any breach or nonperformance by any Principal Stockholder of any covenant covenant, agreement or obligation in this Agreement (whether to be performed before, on or after the Closing Date) or by the Company of any covenant, agreement or obligation in this Agreement to be performed on or before the Closing Date, (B) any misrepresentation or inaccuracy in, or breach of, any representation or warranty made by the Company on or prior any Principal Stockholder in any of Sections 3.1, 3.2, 3.3, 3.4.1 or 3.13 hereof (each and collectively, the “Specified Representations”) or any other representation or warranty made by the Company or any Principal Stockholder in this Agreement or the certificates delivered pursuant to Section 7.2.1, (C) any misrepresentation or inaccuracy in, or breach of, any representation or warranty in Section 3A.7 or in any certificate given hereunder in respect of Section 3A.7 (collectively, “Share Ownership Representations”), (D) in respect of Section 2.6.2.5(b)(i) with respect to the Closing hereunder;
Working Capital Indemnity Amount, (E) in respect of willful misconduct or fraud, or (F) in respect of any ESOP/DC Plan Claims, (ii) all Dissenters’ Rights Losses suffered, incurred or paid by any Buyer Indemnified Party, and (iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any information, or breach of any representation or warranty, set forth in the Spreadsheet, including any failure to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares;
(iv) any Fraud committed by or on behalf of the Company in connection with the Merger and the transactions described herein;
(v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes;
(vi) any Securityholder-Related Claims;
(vii) the PPP Loan;
(viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable pursuant to Section 2.6 upon the exchange of such Dissenting Shares and any costs or expenses incurred actually paid by a Buyer Indemnified Party in connection therewith;
respect of the termination of the Company 401(k) Plan or the Limited Plan (“401(k) Claims”), and (iii) any ESOP/DC Plan Claims. Notwithstanding anything herein to the contrary, in determining if there is a misrepresentation or inaccuracy in, or a breach of, a representation or warranty in this Agreement by the Company or any Principal Stockholder or a certificate given pursuant to Section 7.2.1, each such representation or warranty shall read as if (x) for three made by such Buyer Indemnifying Party, and (3y) years from and after all Materiality Qualifications contained in any such representation or warranty shall be ignored. In the Closing, disregarding any disclosure event there shall be a breach of any matter in the Disclosure ScheduleSection 3.30, the matters set forth on Schedule 8.2(a)(x) (collectively, the “Specified Matters”); and
(xi) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Parties shall be entitled to indemnification for the Losses arising from the breaches of the individual representations and warranties contributing to such breach of Section 83.30 and shall not also be entitled to indemnification for such breach of Section 3.30.
Appears in 1 contract
Indemnification of Buyer Indemnified Parties. From Subject to the terms of this Article X, from and after the Closing, each Indemnifying Securityholder (severally and not jointly, in accordance with its Pro Rata Share) shall indemnify and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (including, from and after the Closing, the Company), Company and its Subsidiaries) and their respective direct and indirect partnersofficers, directors, stockholders, members, shareholdersemployees, directors, officers, employees successors and agents permitted assigns (collectively, the “Buyer Indemnified Parties”) shall be indemnified and held harmless by the Stockholders party hereto solely using the funds in the General Escrow Account except that, solely with respect to any Losses resulting from fraud, a breach of any Fundamental Representation, and with respect to Section 10.3(d), or Section 10.3(e), to the extent not satisfied by funds in the General Escrow Account, the Buyer Indemnified Parties shall also be indemnified by the Stockholders, severally but not jointly, to the extent provided in Section 10.5(a)(vii) and Section 10.10, as applicable, from and against any and all Losses directly incurred or indirectly suffered by any Buyer Indemnified Party resulting from, arising out of, of or related to, accrued or incurred in connection with:
to (ia) any breach or inaccuracy of or inaccuracies in any representation or warranty made by the Stockholders party hereto or the Company in this Agreement (other than any representation or warranty regarding tax matters contained in any certificate delivered to Buyer at the Closing;
(iiSections 4.9, 4.13(f), and 4.17) any breach or nonperformance as of any covenant or obligation in this Agreement to be performed by the Company on or prior to the Closing hereunder;
Date (iii) regardless of the disclosure of any matter set forth except in the Disclosure Schedule, any inaccuracy in any information, or breach case of any representation or warranty, set forth in the Spreadsheet, including any failure to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenseswarranty that is made as of a specific date, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares breach or inaccuracy of such representation or warranty to be true and the Company Securityholders’ Adjustment Pro Rata Shares;
(ivcorrect as of such date) any Fraud committed by or on behalf of the Company in connection with the Merger and the transactions described herein;
(v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes;
(vi) any Securityholder-Related Claims;
(vii) the PPP Loan;
(viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid with respect to Dissenting Shares to the extent that a Buyer Indemnified Party provides written notice of such paymentsbreach or inaccuracy (which notice shall describe the applicable breach or inaccuracy in reasonable detail, in include copies of all available material written evidence thereof and indicate the aggregateestimated amount, exceed the value if reasonably practicable, of the amounts Losses that otherwise would have been payable pursuant to Section 2.6 upon or may be sustained by the exchange of such Dissenting Shares and any costs or expenses incurred by a applicable Buyer Indemnified Party in connection therewith;
) to the Stockholders’ Representative prior to the applicable Survival Date, provided, however, that in the case of any representation or warranty (xor the defined terms used in such representations or warranties) that is limited by qualifications as to materiality, Material Adverse Effect or any similar term, qualification or limitation based on materiality, the existence of any breach or failure to be true and correct for three purposes of this Section 10.3 and the existence and scope of indemnification of any representation or warranty hereunder shall be determined as if such qualification or limitation based on materiality or Material Adverse Effect were not included therein, (3b) years from and any breach of any covenant or agreement of the Stockholders’ Representative contained in this Agreement or any Ancillary Agreement to which it is a party that are required to be performed by it after the Closing, disregarding (c) any disclosure of Losses (including without limitation payment or payments in settlement or pursuant to any matter Order), not to exceed ten million dollars ($10,000,000) in the Disclosure Scheduleaggregate, resulting from, arising out of or related to the factual circumstances or claims underlying that certain Civil Investigative Demand dated May 15, 2014 or any proceeding or Order arising out of or resulting therefrom, or any other similar civil investigative demands, subpoenas, or notices, from any jurisdiction, received by the Company or any of its Subsidiaries whether prior to, at or following the Closing or any proceeding or Order arising out of or resulting therefrom (d) any payment required to be made to holders of Appraisal Shares who properly demand appraisal rights under Section 262, provided that for such purpose, the matters set forth amount required to be indemnified shall be reduced by the portion of the Merger Consideration that would have been payable to the holder of such Appraisal Shares had they not exercised their appraisal rights under Section 262 and (e) the liabilities covered on Schedule 8.2(a)(x) F and any Taxes payable by the Buyer or any of its Affiliates (collectivelyincluding, following the Closing, the “Specified Matters”); and
(xiCompany and its Subsidiaries) any costs and expenses of enforcement in connection with the liabilities covered on Schedule F. Notwithstanding anything to recover Losses due the contrary in this Agreement, the Buyer Indemnified Parties’ rights to indemnification shall not be diminished or otherwise affected by any Buyer Indemnified Party under this Section 8Party’s knowledge, prior to the Closing, of any breach of a representation or warranty, or the underlying circumstances or causes of such a breach.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Endo International PLC)
Indemnification of Buyer Indemnified Parties. From Subject to this Section 6.3 from and after the ClosingClosing Date, each Indemnifying Securityholder (severally Sellers shall, jointly and not jointlyseverally, in accordance with its Pro Rata Share) shall indemnify indemnify, defend and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (including, from and after the Closing, the Company), Company and their respective direct and indirect partners, members, shareholders, directors, officers, employees employees, representatives, successor and agents permitted assigns (collectively, the collectively “Buyer Indemnified Parties”) in respect of, and Buyer Indemnified Parties shall be entitled to payment and reimbursement, jointly and severally, from and against any and Sellers (collectively the “Seller Indemnifying Parties”) of the amount of, all Losses directly suffered, incurred or indirectly arising out paid by any Buyer Indemnified Party, by reason of, related toin whole or in part, accrued or incurred arising from, in connection with:
whole or in part, (ia) any breach by any Seller or Sellers’ Representative of any covenant, agreement or inaccuracies obligation in any representation this Agreement (whether to be performed before, on or warranty made after the Closing Date) or by the Company in this Agreement or in any certificate delivered to Buyer at the Closing;
(ii) any breach or nonperformance of any covenant covenant, agreement or obligation in this Agreement to be performed by the Company on Closing Date, (b) any misrepresentation or prior to the Closing hereunder;
(iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any informationin, or breach of of, any representation or warrantywarranty made by the Company, set forth any Seller or Sellers’ Representative in the Spreadsheet, including this Agreement or any failure to properly calculate certificate delivered by the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares;
(iv) any Fraud committed by or on behalf of the Company in connection with the Merger and the transactions described herein;
(v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes;
(vi) any Securityholder-Related Claims;
(vii) the PPP Loan;
(viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable Sellers pursuant to Section 2.6 upon the exchange of such Dissenting Shares 7.2 (individually, “Seller Rep” and any costs or expenses incurred by a Buyer Indemnified Party collectively, “Seller Reps”), (c) in connection therewith;
(x) for three (3) years from and after the Closing, disregarding any disclosure respect of any matter MEI Warranty Claims or the MEI Litigation or (d) in respect of the Disclosure ScheduleMesirow Agreement. Notwithstanding anything herein to the contrary, in determining (a) if there is a misrepresentation or inaccuracy in, or a breach of, any Seller Rep and (b) the matters set forth on Schedule 8.2(a)(xamount of related Losses, (ii) each Seller Rep shall read as if made by such Indemnifying Party and (collectively, the “Specified Matters”); and
(xiii) all Materiality Qualifications contained in any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 8such Seller Rep shall be ignored.
Appears in 1 contract
Samples: Share Purchase Agreement (Vse Corp)
Indemnification of Buyer Indemnified Parties. From (a) Subject to the applicable provisions of Section 11.4, Seller and after the Closing, each Indemnifying Securityholder (Seller Shareholders will jointly and severally and not jointly, indemnify in accordance with its Pro Rata Share) shall indemnify and hold harmless full Buyer and its each of Buyer’s Affiliates, together with their respective officers, directors, employees, agents and Affiliates (including, from and after the Closing, the Company), and their respective direct and indirect partners, members, shareholders, directors, officers, employees and agents (collectively, the “Buyer Indemnified Parties”) ), and hold them harmless from and against against, any and all Losses which they or any of them may suffer or incur, directly or indirectly arising out ofindirectly, related to, accrued regardless of when suffered or incurred in connection withand whether or not involving a claim by a Third Party, which arise from or relate to:
(i) any breach Breach of or inaccuracies in any a representation or warranty made by the Company in Seller or any Seller Shareholder under ARTICLE 4 of this Agreement or in any certificate delivered Ancillary Document, determined in each case (except for the representations and warranties set forth in (Section 4.7(b), clause (B) of Section 4.17(a), Section 4.19(a)(xviii) and the final sentence of Section 4.21(a)) without giving effect to Buyer at the Closingany materiality or Material Adverse Effect qualifiers therein;
(ii) any breach Breach of a covenant, agreement or nonperformance undertaking of Seller or any covenant or obligation Seller Shareholder in this Agreement to Agreement; provided, however, that if any indemnification claim may be performed made by a Buyer Indemnified Party under this Section 11.3(a)(ii) as a result of a breach of a covenant in Section 7.1(a) or Section 7.1(b), and/or Section 11.3(a)(i) as a result of a breach of a warranty and representation in ARTICLE 4, in either case resulting from the Company on same events or prior to circumstances, then the Closing hereunderapplicable Buyer Indemnified Party shall not seek recourse for such matter under this Section 11.3(a)(ii);
(iii) the Retained Liabilities (regardless of whether there has been any Breach or whether the disclosure Losses are recoverable under any other provision of any matter set forth in the Disclosure Schedule, any inaccuracy in any information, or breach of any representation or warranty, set forth in the Spreadsheet, including any failure to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Sharesthis Section 11.3);
(iv) any Fraud committed by all Liabilities otherwise arising from or on behalf relating to Seller’s use, ownership or operation of the Company in connection with Purchased Assets or the Merger and operation of the transactions described hereinBusiness prior to the Closing (regardless of whether there has been any Breach or whether the Losses are recoverable under any other provision of this Section 11.3);
(v) without duplication all Liabilities arising from or relating to any transactions involving any capital stock or other equity of any amounts treated as Indebtedness that reduced the Base Merger ConsiderationSeller, any Indemnified Taxeswhether occurring among current or former shareholders of Seller;
(vi) any Securityholder-Related Claims;
(vii) the PPP Loan;
(viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable pursuant to Section 2.6 upon the exchange of such Dissenting Shares and any costs or expenses incurred by a Buyer Indemnified Party in connection therewith;
(x) for three (3) years from and after the Closing, disregarding any disclosure of any matter in the Disclosure Schedule, the matters set forth on Schedule 8.2(a)(x) (collectively, the “Specified Matters”)11.3; andor
(xivii) any and all costs and expenses expenses, including reasonable legal fees and expenses, incurred in connection with enforcing the indemnification rights of the Buyer Indemnified Parties pursuant to this Section 11.3(a), in each case to the extent that such enforcement is successful.
(b) Subject to recover the applicable provisions of Section 11.4, each Seller Shareholder will severally, but not jointly, indemnify in full the Buyer Indemnified Parties, and hold them harmless from and against, any and all Losses due which they or any of them may suffer or incur, directly or indirectly, regardless of when suffered or incurred and whether or not involving a claim by a Third Party, which arise from or relate to:
(i) any Breach of a representation or warranty by that Seller Shareholder under ARTICLE 5 of this Agreement or in any Ancillary Document, determined in each case without giving effect to any materiality, Material Adverse Effect or material adverse effect qualifiers therein;
(ii) any Breach of a covenant, agreement or undertaking by that Seller Shareholder in this Agreement; provided, however, that if any indemnification claim may be made by a Buyer Indemnified Party under this Section 811.3(b)(ii) as a result of a breach of a covenant in Section 7.1(a) or Section 7.1(b), and/or Section 11.3(a)(ii) as a result of a breach of a warranty and representation in ARTICLE 5, in either case resulting from the same events or circumstances, then the applicable Buyer Indemnified Party shall not seek recourse for such matter under this Section 11.3(b)(ii); or
(iii) any and all costs and expenses, including reasonable legal fees and expenses, incurred in connection with enforcing the indemnification rights of the Buyer Indemnified Parties pursuant to this Section 11.3(b), in each case to the extent that such enforcement is successful.
(c) Seller and Seller Shareholders acknowledge that Buyer has certain rights to liquidated damages under Section 9(f) of the Employment Agreement and that the payment of such liquidated damages if required under the terms of Section 9(f) of the Employment Agreement shall be made by Seller. Notwithstanding anything to the contrary in this Agreement, it is understood that Seller’s obligation to pay liquidated damages shall not be subject to the Basket but shall in all other respects be subject to the other provisions of this Article 11.
(d) Seller and Seller Shareholders acknowledge that Buyer has certain rights to payments under Section 2.10(c) of the Personnel Agreement including that such payments shall be made by Seller. Notwithstanding anything to the contrary in this Agreement, it is understood that Seller’s obligation to make the payments referred to in the preceding sentence shall not be subject to the Basket but shall in all other respects be subject to the other provision of this Article 11.
Appears in 1 contract
Samples: Asset Purchase Agreement (Toro Co)
Indemnification of Buyer Indemnified Parties. (a) From and after the Closing, each Indemnifying Securityholder (severally and not jointly, in accordance with its Pro Rata Share) shall indemnify and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (including, from and after the Closing, the Company), ) and each of their respective direct and indirect partnersofficers, membersdirectors, employees, shareholders, directorspartners, officersmembers or other equity holders, employees agents and agents Representatives (collectivelyeach, the a “Buyer Indemnified PartiesParty”) from shall be indemnified and held harmless by each Seller (on a several basis), against any and all Losses Losses, whether or not involving a Third Party Claim, arising out of or directly or indirectly resulting from: (i) the breach or violation of or inaccuracy in any representation or warranty made by such Seller contained in this Agreement (in each case, as such representation or warranty would read if all qualifications as to materiality, including each reference to the words “Material Adverse Change”, “material” and “materiality” and all similar phrases and words, were deleted therefrom); (ii) the breach or violation of any covenant or agreement of such Seller contained in this Agreement, whether occurring before or at the Closing but not after the Closing; and (iii) any fraud by such Seller in connection with this Agreement or the Transactions.
(b) From and after the Closing, the Buyer Indemnified Parties shall be indemnified and held harmless by the Sellers, severally (according to each Seller’s Pro Rata Percentage) but not jointly or jointly and severally, against any and all Losses, whether or not involving a Third Party Claim, arising out of, related to, accrued of or incurred in connection with:directly or indirectly resulting from: 106
(i) any the breach or violation of or inaccuracies inaccuracy in any representation or warranty made by the Company contained in this Agreement (in each case, as such representation or in any certificate delivered warranty would read if all qualifications as to Buyer at materiality, including each reference to the Closing;
words “Material Adverse Change”, “material” and “materiality” and all similar phrases and words, were deleted therefrom); (ii) any the breach or nonperformance violation of any covenant or obligation agreement of the Company contained in this Agreement Agreement, whether occurring before or at the Closing but not after the Closing; (iii) any Action by a shareholder or former shareholder of the Company, or by any other Person, seeking to be performed by assert, or based upon: (A) ownership or rights to ownership of any shares of Company Capital Stock, (B) any right of a shareholder of the Company (other than the right to receive any portion of the Aggregate Consideration pursuant to this Agreement), including any option, preemptive right or right to notice or to vote or (C) any right under the Constitutive Documents of the Company; (iv) any Actions or disputes with respect to (A) the allocation or payment among the Sellers of the Aggregate Consideration pursuant to the terms of this Agreement, (B) any claim that Schedule I is not true, complete and correct in all respects, or (C) any other claims by any shareholder or former shareholder of the Company, in its capacity as such, against the Company or its directors, officers, or agents; (v) reliance on the authority of the Shareholders’ Representative as the agent, representative and attorney-in-fact of the Sellers pursuant to Section 2.7(c) or Section 11.11; (vi) (A) any Taxes of the Company, or for which it may be liable, with respect to any Tax Period (or portion thereof including the Straddle Period) ending on or prior to the Closing hereunder;
(iii) regardless Date, to the extent not included in Closing Tax Liabilities in the calculation of the disclosure of any matter set forth in Adjusted Closing Payment Amount (and excluding the Disclosure Schedule, any inaccuracy in any information, or breach of any representation or warranty, set forth in Aggregate Company Share Option Tax Liability to the Spreadsheet, including any failure extent remitted to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares;
(iv) any Fraud committed by or on behalf of the relevant Option Holder on or around the Closing); (B) any Taxes of the Company described, or imposed as a result of an inclusion in connection with the Merger income or disallowance of a deduction described, in Section 5.17(d); (C) any and the transactions described herein;
(v) without duplication all Taxes of any amounts treated Person imposed on the Company or any Affiliate as Indebtedness that reduced a result of the Base Merger ConsiderationCompany being a member of a group for any Tax purpose (whether as a member of an affiliated, any Indemnified Taxes;
(viconsolidated, controlled, fiscal, combined or unitary group or otherwise) any Securityholder-Related Claims;
(vii) the PPP Loan;
(viii) any Company Transaction Expenses on or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time Closing Date, or as a transferee or successor, by contract, agency or otherwise; (without giving effect D) any breach or violation of a covenant or agreement contained in this Agreement relating to Taxes; and (E) any Aggregate Contingent Phantom Tax Liability, Aggregate Phantom Tax Liability, or Company Phantom Tax Liability payable or accountable by the Company to the transactions contemplated herebyextent not deducted or withheld from the applicable aggregate Phantom Per Share Closing Payment Amounts, Contingent Phantom Bonus payable in accordance with the provisions of Section 2.8 or Section 2.9 (as applicable) that have or to the extent not been taken into account included in Closing Tax Liabilities in the calculation of the Final Adjustment Adjusted Closing Payment Amount;. For the purposes of this Section 9.2(b)(vi) the amount of Taxes allocable to the portion of the Straddle Period ending on Closing shall be 107
(ixc) For the purposes of this Section 9.2 in determining whether a charge on or power to sell, mortgage or charge any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable pursuant to Section 2.6 upon shares or assets of the exchange of such Dissenting Shares and Company exists at any costs or expenses incurred by a Buyer Indemnified Party in connection therewith;
(x) for three (3) years from and after the Closing, disregarding any disclosure of any matter in the Disclosure Scheduletime, the matters set forth on Schedule 8.2(a)(x) (collectivelyfact that inheritance tax is not yet payable, or may be paid by instalments shall be disregarded and the “Specified Matters”); and
(xi) any costs and expenses inheritance tax shall be treated for the purposes of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 89.2 as becoming due, and a charge or power to sell, mortgage or charge as arising, on the date of the transfer of value or other date or Event on or in respect of which it becomes payable or arises, and the provisions of section 213 of the Inheritance Tax Act 1984 (refund by instalments) shall not apply.
Appears in 1 contract
Samples: Share Purchase Agreement (Arcutis Biotherapeutics, Inc.)
Indemnification of Buyer Indemnified Parties. (a) From and after the Closing, each Indemnifying Securityholder (severally and not jointlysubject to the limitations set forth in ARTICLE IX or this ARTICLE X, in accordance with its Pro Rata Share) shall indemnify and hold harmless Buyer and its respective officersBuyer, directors, employees, agents and Affiliates (including, from and after the Closing, the Company)Parent, and their respective direct and indirect partners, members, shareholders, directors, officers, employees managers, employees, agents, Affiliates, successors and agents assigns (each a “Buyer Indemnified Party” and, collectively, the “Buyer Indemnified Parties”) shall be indemnified and held harmless, solely from the Escrow Amount pursuant to the Escrow Agreement, from and against, any and all liabilities, obligations, deficiencies, demands, claims, suits, actions, causes of action, assessments, losses, costs, settlement payments, defense costs, interest, awards, judgments, fines, penalties, damages or other charges and expenses (including reasonable attorneys’ fees) (hereinafter, a “Loss” or the “Losses”), sustained or incurred by any Buyer Indemnified Party, resulting from (i) any breach of a representation or warranty made in ARTICLE IIIA or ARTICLE IIIB of this Agreement, (ii) any breach of a covenant made by the Stockholder or the Company in this Agreement occurring prior to the Closing, or (iii) any breach of Section 9.2(b). The Buyer Indemnified Parties also shall be indemnified and held harmless from and against any and all Losses directly or indirectly arising out of, related to, accrued sustained or incurred by any Buyer Indemnified Party resulting from any costs or other liability in connection withwith the payment and termination of the Subsidiary’s 2004 Long Term Incentive Plan (the “LTIP Liability”) and resulting from Stockholder’s failure to fulfill its obligations under the first sentence of Section 5.10 (“Phantom Liability”). In addition, the Buyer Indemnified Parties shall be indemnified and held harmless from and against any and all Losses sustained or incurred by any Buyer Indemnified Party resulting from any claim for indemnification made by Xxxxxx Xxxxxxxx & Co. against the Company or any of its Affiliates in connection with that certain letter agreement, dated as of October 7, 2010, between Xxxxxx Xxxxxxxx & Co. and the Subsidiary (“HW&Co. Liability”), and any such Buyer Indemnified Party may seek indemnification from the Escrow Amount or from the Stockholder. Notwithstanding the foregoing, the Stockholder shall have (x) unlimited liability to Buyer for the LTIP Liability, the Phantom Liability, and the HW&Co. Liability and such liability shall survive indefinitely and (y) aggregate liability to Buyer up to the amount of the Transaction Consideration for Losses resulting from a breach of Fundamental Representations.
(b) If any Buyer Indemnified Party becomes potentially entitled to any indemnification pursuant to ARTICLE IX or Section 10.2(a) of this Agreement, the amount that such Buyer Indemnified Party is entitled to recover in connection therewith shall nevertheless be limited as follows:
(i) any breach of first, no particular Loss shall be payable unless such Loss equals or inaccuracies in any representation or warranty made by exceeds $5,000 (the Company in this Agreement or in any certificate delivered to Buyer at the Closing“Minimum Individual Claim Amount”);
(ii) second, no Losses shall be payable unless and until the total of all such Losses (excluding any breach or nonperformance of any covenant or obligation particular loss that does not exceed the Minimum Individual Claim Amount) exceeds $350,000 (the “Threshold”), in which event such Buyer Indemnified Party shall, subject to the other provisions set forth in this Agreement to Section 10, be performed by the Company on or prior entitled to the Closing hereunder;full amount of each Loss that exceeds the Minimum Individual Claim Amount without regard to the Threshold; and
(iii) regardless of the disclosure of any matter set forth in the Disclosure Schedulethird, any inaccuracy in any information, or breach of any representation or warranty, set forth in the Spreadsheet, including any failure to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares;
(iv) any Fraud committed by or on behalf of the Company in connection with the Merger and the transactions described herein;
(v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes;
(vi) any Securityholder-Related Claims;
(vii) the PPP Loan;
(viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid except with respect to Dissenting Shares to Losses resulting from a breach of Fundamental Representations, the extent that such payments, in sole and exclusive source of satisfaction and payment for any Losses payable hereunder shall be the aggregate, exceed funds held by the value Escrow Agent under the terms of the amounts that otherwise would have been payable pursuant Escrow Agreement. Notwithstanding the foregoing, neither the Minimum Individual Claim Amount nor the Threshold shall apply to Section 2.6 upon Losses resulting from the exchange of such Dissenting Shares and any costs or expenses incurred by a Buyer Indemnified Party in connection therewith;
(x) for three (3) years from and after the Closing, disregarding any disclosure of any matter in the Disclosure ScheduleLTIP Liability, the matters set forth on Schedule 8.2(a)(x) (collectivelyPhantom Liability, or the “Specified Matters”); and
(xi) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 8HW&Co. Liability.
Appears in 1 contract
Indemnification of Buyer Indemnified Parties. (a) From and after the Closing, and subject to the terms and conditions of this Agreement, each Company Indemnifying Securityholder (severally and not jointlyParty shall indemnify, in accordance with its Pro Rata Share) shall indemnify defend and hold harmless Buyer Buyer, Parent and its their respective Affiliates (including, following the Closing, the Company and each Company Subsidiary) and each of their respective successors, permitted assigns, officers, directors, employees, agents and Affiliates (including, from and after the Closing, the Company), and their respective direct and indirect partners, members, shareholders, directors, officers, employees and agents representatives (collectively, the “Buyer Indemnified Parties”) from against, and against reimburse any and Buyer Indemnified Party for, all Losses directly Damages that such Buyer Indemnified Party may suffer or indirectly incur, or become subject to, relating to or arising out of, related to, accrued of or incurred in connection with:with any of the following (each a “Buyer Claim”):
(i) any misrepresentation or breach or failure of any representation or inaccuracies warranty (other than the representations and warranties in Section 4.10) made by the Company or an applicable Company Indemnifying Party in this Agreement or in any certificate delivered by the Company or the applicable Company Indemnifying Party to be true, complete and correct in all respects as of the Closing Date (it being understood and agreed that for purposes of determining the amount of Damages to which any indemnification applies, each representation and warranty shall be read without regard and without giving effect to the terms “material” and “Material Adverse Effect” or words of similar import);
(ii) any breach or non-fulfillment of any covenant or agreement made or to be performed by the Company or an applicable Company Indemnifying Party in this Agreement or in any agreement or document entered into by the Company or the applicable Company Indemnifying Party in connection with this Agreement, except for a breach or non-fulfillment resulting from any action or failure to act by Buyer or any of its Affiliates;
(iii) any fraud on the part of the Company or the applicable Company Indemnifying Party in connection with this Agreement or any certificate delivered by the Company or such Company Indemnifying Party in connection therewith;
(iv) any (A) Taxes (or the non-payment thereof) of the Company or any Company Subsidiary with respect to all Tax periods ending on or prior to the Closing Date and for the portion of any Straddle Period ending on the Closing Date (determined as provided in Section 14.1) or (B), any Taxes resulting from any misrepresentation or breach or failure of any representation or warranty made by the Company in this Agreement or in any certificate delivered to Buyer at under Section 4.10 (it being understood and agreed that for purposes of determining the Closing;
(ii) any breach or nonperformance amount of any covenant or obligation in this Agreement to Damages related thereto, each such representation and warranty shall be performed by the Company on or prior read without regard and without giving effect to the Closing hereunder;
(iii) regardless terms “material” and “Material Adverse Effect” or words of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any information, or breach of any representation or warranty, set forth in the Spreadsheet, including any failure to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares;
(iv) any Fraud committed by or on behalf of the Company in connection with the Merger and the transactions described hereinsimilar import);
(v) without duplication any Action filed against the Company or any Company Subsidiary for events or actions occurring or arising prior to the Closing, including the matters identified in Section 4.22 of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified TaxesDisclosure Schedule;
(vi) any Securityholder-Related ClaimsOCS Indemnity Amount or any amount of the Magneton Transfer Amount borne by a Buyer Indemnified Party;
(vii) any amount of Seller Parties Transaction Expenses (excluding any VAT amounts recovered by the PPP Loan;Company following the Closing) or Company Debt (A) not deducted in the calculation of the Estimated Closing Cash Balance set forth in the statement delivered to Buyer pursuant to Section 3.2(b) or (B) not fully discharged at or prior to the Closing; and
(viii) any Company Transaction Expenses Unfunded Pension and Severance Reduction not otherwise borne by the Sellers hereunder or Indebtedness that remain outstanding and unpaid immediately prior any Liability incurred by a Buyer Indemnified Party arising from any actions taken in compliance with Section 7.15.
(b) Notwithstanding any other provision of this Agreement to the Effective Time (without giving effect contrary, but subject to the transactions contemplated herebylimitations set forth in Section 13.1(c), (i) that have the Company Indemnifying Parties shall not been taken into account in be required to indemnify, defend or hold harmless any Buyer Indemnified Party against, or reimburse any Buyer Indemnified Party for, any Damages pursuant to Section 13.1(a)(i) until the calculation aggregate amount of the Final Adjustment Amount;
Buyer Indemnified Parties’ Damages exceeds $2,252,316 (ixthe “Deductible”), after which the Company Indemnifying Parties shall be obligated only for such aggregate Damages of the Buyer Indemnified Parties in excess of the Deductible and (ii) any payments paid the cumulative indemnification obligations of the Company Indemnifying Parties shall in no case exceed $22,523,162, except for (A) the indemnification obligations under Sections 13.1(a)(ii) through (vii) and (B) indemnification obligations with respect to Dissenting Shares breaches of any of the Fundamental Representations, which shall in no case exceed $225,231,621.
(c) The liability of each Company Indemnifying Party for indemnification hereunder shall be joint and several; provided, however, that if and to the extent that, subject to Section 13.1(b), amounts necessary to satisfy Buyer Claims under this Section 13.1 exceed the General Set-Off Amount, then the liability of the Company Indemnifying Parties under this Section 13.1 for any indemnifiable Damages in excess of the General Set-Off Amount shall be several and not joint and will be limited to each Company Indemnifying Party’s Pro Rata Share of such Damages. Notwithstanding the foregoing, (i) with respect to any Buyer Claim related to a breach by a Company Indemnifying Party of the representations made by such party under Section 5, only the Company Indemnifying Party that is in breach thereof shall be liable for indemnification hereunder and (ii) with respect to Sections 7.12(a), only the Company Indemnifying Party in breach thereof shall be liable for indemnification hereunder. Further, the recourse of the Buyer Indemnified Parties against the General Set-Off Amount with respect to any Buyer Claim against any Company Indemnifying Party relating to the foregoing clause (i) or (ii), shall be limited to such paymentsCompany Indemnifying Party’s Pro Rata Share of the General Set-Off Amount. For the avoidance of doubt, in no event shall any Company Indemnifying Party be liable for indemnification obligations that, individually or in the aggregate, exceed the value of the amounts that otherwise would have been payable aggregate consideration allocated to such Company Indemnified Party pursuant to Section 2.6 upon the exchange terms of such Dissenting Shares and any costs or expenses incurred by a Buyer Indemnified Party in connection therewith;
(x) for three (3) years from and after the Closing, disregarding any disclosure of any matter in the Disclosure Schedule, the matters set forth on Schedule 8.2(a)(x) (collectively, the “Specified Matters”); and
(xi) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 8Agreement.
Appears in 1 contract
Samples: Share Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Indemnification of Buyer Indemnified Parties. From (a) Subject to the limitations set forth in this Article VIII, the Sellers hereby agree to indemnify and after hold harmless the ClosingBuyer Indemnified Parties, each Indemnifying Securityholder (severally and not jointly, in accordance with its Pro Rata Share) shall indemnify and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (including, from and after the Closing, the Company), and their respective direct and indirect partners, members, shareholders, directors, officers, employees and agents (collectively, the “Buyer Indemnified Parties”) from and against any and all Losses directly suffered, sustained or indirectly incurred by any Buyer Indemnified Party, resulting from, arising out of, in connection with or related to, accrued or incurred in connection with:
(i) any breach of or inaccuracies in any representation or warranty made by related to any Seller in Article III of this Agreement
(ii) any breach of any representation or warranty related to the Company in Article IV of this Agreement or in any certificate delivered to Buyer at the ClosingAgreement;
(iiiii) any breach or nonperformance of any covenant or obligation made by any Seller in this Agreement to be performed by the Company on or prior to the Closing hereunder;
(iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any information, or breach of any representation or warranty, set forth in the Spreadsheet, including any failure to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata SharesAgreement;
(iv) any Fraud committed by unpaid Closing Indebtedness or on behalf Transaction Expenses not included in the calculation of the Company in connection with the Merger and the transactions described hereinFinal Closing Adjustment;
(v) without duplication any unpaid Pre-Closing Taxes not included in the calculation of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes;Final Closing Adjustment; and
(vi) any Securityholder-Related Claims;inaccuracies in the Consideration Spreadsheet.
(viib) Other than in respect of any breach of any Fundamental Representation, Tax Representation or in the case of Fraudulent Breach, (i) the PPP Loan;
(viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior Sellers shall not be liable to the Effective Time (without giving effect Buyer Indemnified Parties pursuant to Section 8.2(a)(i) unless and until the transactions contemplated hereby) total of all such Losses exceeds the Threshold, after which the Buyer Indemnified Parties shall be entitled to recover for Losses in excess of $50,000; provided, however, that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid Losses as to any claim for indemnification with respect to Dissenting Shares an individual breach of a representation or warranty (or series of similar breaches arising from the same underlying facts or legal basis) shall not be subject to indemnification unless and until the extent that aggregate dollar amount of all Losses with respect to such paymentsindividual breach (or series of similar breaches arising from the same underlying facts or legal basis) exceeds $10,000.
(c) Other than in respect of any breach of any Fundamental Representation, Tax Representation or in the case of Fraudulent Breach, in no event shall the aggregate, exceed aggregate amount of all payments made by the value Sellers in satisfaction of the amounts that otherwise would have been payable claims for indemnification pursuant to Section 2.6 upon 8.2(a)(i) exceed the exchange of such Dissenting Shares and any costs or expenses incurred by a Buyer Indemnified Party General Indemnity Cap. No cap shall apply to Losses in connection therewith;
(x) for three (3) years from and after the Closing, disregarding any disclosure with breach of any matter Fundamental Representation, Tax Representation or in the Disclosure Schedule, the matters set forth on Schedule 8.2(a)(x) (collectively, the “Specified Matters”case of Fraudulent Breach or for claims for indemnification pursuant to Sections 8.2(a)(ii)-(vi); and
(xi) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 8.
Appears in 1 contract
Samples: Purchase Agreement (Leaf Group Ltd.)
Indemnification of Buyer Indemnified Parties. From Subject to this Section 6.3 from and after the ClosingClosing Date, each Indemnifying Securityholder (severally Sellers shall, jointly and not jointlyseverally, in accordance with its Pro Rata Share) shall indemnify indemnify, defend and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (including, from and after the Closing, the Company), Company and their respective direct and indirect partners, members, shareholdersmanagers, directors, officers, employees employees, representatives, successor and agents assigns (collectively, the collectively “Buyer Indemnified Parties”) in respect of, and Buyer Indemnified Parties shall be entitled to payment and reimbursement, jointly and severally, from and against any and Sellers (collectively the “Seller Indemnifying Parties”) of the amount of, all Losses directly suffered or indirectly arising out incurred by any Buyer Indemnified Party, by reason of, related toin whole or in part, accrued or incurred arising from, in connection with:
whole or in part, (ia) any breach by any Seller or Sellers’ Representative of any covenant, agreement or inaccuracies obligation in any representation this Agreement (whether to be performed before, on or warranty made after the Closing Date) or by the Company in this Agreement or in any certificate delivered to Buyer at the Closing;
(ii) any breach or nonperformance of any covenant material covenant, agreement or obligation in this Agreement to be performed by the Company on or prior to the Closing hereunder;
Date, (iiib) regardless of the disclosure in respect of any matter set forth in the Disclosure ScheduleDCAA Claim, (c) any misrepresentation or inaccuracy in any informationin, or breach of of, any representation or warrantywarranty made by the Company, set forth any Seller or Sellers’ Representative in the Spreadsheetthis Agreement or any certificate delivered pursuant to Article 7, including any failure to properly calculate the Company Closing Cash, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares;
or (ivd) any Fraud committed by or on behalf in respect of the Company in connection with the Merger and the transactions described herein;
(v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes;
(vi) any Securityholder-Related Claims;
(vii) the PPP Loan;
(viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior Davidson Agreement. Notwithstanding anything herein to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid with respect to Dissenting Shares to the extent that such paymentscontrary, in the aggregatedetermining (a) if there is a misrepresentation or inaccuracy in, exceed the value of the amounts that otherwise would have been payable or a breach of, a representation or warranty in Article 3 or a certificate given pursuant to Section 2.6 upon 7.2.1 and (b) the exchange amount of related Losses, each representation or warranty referenced in clause (c) of the immediately preceding sentence shall read as if made by such Dissenting Shares Seller Indemnifying Party and all Materiality Qualifications and qualifications as to Company’s Knowledge and Sellers’ Knowledge contained in any costs such representation or expenses incurred by a Buyer Indemnified Party in connection therewith;
(x) for three (3) years from and after the Closing, disregarding any disclosure of any matter in the Disclosure Schedule, the matters set forth on Schedule 8.2(a)(x) (collectively, the “Specified Matters”); and
(xi) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 8warranty shall be ignored.
Appears in 1 contract
Indemnification of Buyer Indemnified Parties. From and after following the ClosingAcquisition Closing and subject to the limitations contained in this Article 11, each Indemnifying Securityholder (severally of the Buyer, the Company and not jointly, in accordance with its Pro Rata Share) shall indemnify and hold harmless Buyer and its their respective officers, directors, employees, agents agents, Affiliates, successors and Affiliates assigns (includingeach a “Buyer Indemnified Party”) shall be indemnified and held harmless by the Sellers, severally and not jointly, based on each Seller’s Pro Rata Share, from and after against all Damages incurred by the Closing, the Company), and their respective direct and indirect partners, members, shareholders, directors, officers, employees and agents (collectively, the “Buyer Indemnified Parties”) from and against any and all Losses directly or indirectly Parties to the extent based upon, arising out of, related to, accrued with respect to or incurred in connection withby reason of:
(ia) any breach of or inaccuracies in any representation or warranty made by the Company in this Agreement or in any certificate delivered to Buyer at the Closing;
(ii) any breach or nonperformance of any covenant or obligation in this Agreement to be performed by the Company on or prior to the Closing hereunder;
(iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any information, or breach of any representation or warranty, set forth warranty of the Sellers or the Company contained in the Spreadsheetthis Agreement or any Ancillary Agreement (provided that such indemnification in respect of a breach of a representation or warranty of a Seller contained in Article 7 may only be recovered against such Seller, including any failure the portion of the Escrow Fund attributable to properly calculate the Company Closing Cashsuch Seller), Company Closing Indebtednessin each case as such representation or warranty would read if all qualifications as to materiality, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata SharesMaterial Adverse Effect or other similar qualification were deleted therefrom;
(b) any breach of any covenant of the Sellers or the Company contained in this Agreement or any Ancillary Agreement; or
(c) any (i) Taxes of the Company for all Tax periods ending on or before the date of the Acquisition Closing and for the portion of any Straddle Period ending on the date of the Acquisition Closing as determined pursuant to Section 9.10(d), (ii) any Transfer Taxes, (iii) any Taxes imposed on the Company (or any successor thereto), (A) as a transferee or successor, (B) pursuant to any Contract or other relationship existing at any time prior to the Acquisition Closing, or (C) as a result of the provisions of Treasury Regulation Section 1.1502-6 or the analogous provisions of any state, local or foreign Legal Requirements; (iv) Taxes related to any Fraud committed untaxed foreign earnings pursuant to Section 965 of the Code; (v) Taxes due to any inaccuracy of a representation or warranty in this Agreement related to Taxes; (vi) Taxes attributable to the failure by the Company or any Seller to perform any covenant or agreement in this Agreement relating to Taxes or any inaccuracy in any certificate, instrument or agreement delivered by or on behalf of the Company in connection with the Merger or any Seller pursuant to this Agreement relating to Taxes; and the transactions described herein;
(v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes;
(vi) any Securityholder-Related Claims;
(vii) withholding Taxes attributable to payments made to any Seller under this Agreement (for which the PPP Loan;applicable Seller shall indemnify the Buyer Indemnified Parties).
(viiid) any Company Transaction Expenses Any breach of Section 5.18 or Indebtedness that remain outstanding and unpaid immediately prior to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid with respect to Dissenting Shares to the extent that such payments, in the aggregate, exceed the value of the amounts that otherwise would have been payable pursuant to Section 2.6 upon the exchange of such Dissenting Shares and any costs or expenses incurred by a Buyer Indemnified Party in connection therewith;
(x) for three (3) years from and after the Closing, disregarding any disclosure of any matter in the Disclosure Schedule, the matters set forth on Schedule 8.2(a)(x) (collectively, the “Specified Matters”); and
(xi) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Section 87.6.
Appears in 1 contract
Samples: Development, Option and Stock Purchase Agreement (Fortress Biotech, Inc.)
Indemnification of Buyer Indemnified Parties. From and after the Closing, each Indemnifying Securityholder (severally and not jointly, in accordance with its Pro Rata Share) shall indemnify and hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (includingSubject to this Section 6.3, from and after the ClosingClosing Date, the Company)Sellers shall, severally and jointly indemnify, defend and hold harmless, without duplication, Buyer and Parent and their respective direct and indirect partners, members, shareholders, directors, officers, employees employees, representatives, successor and agents assigns (collectively, the collectively “Buyer Indemnified Parties”) in respect of, and Buyer Indemnified Parties shall be entitled, without duplication, to payment and reimbursement from Sellers, jointly and against any and severally (collectively the “Buyer Indemnifying Parties”) of the amount of, all Losses directly suffered, incurred or indirectly arising out paid by any Buyer Indemnified Party, by reason of, related toin whole or in part, accrued or incurred arising from, in connection with:
whole or in part, (ia) any breach by any Seller of any covenant, agreement or inaccuracies obligation in any representation this Agreement (whether to be performed before, on or warranty made after the Closing Date) or by the Company in this Agreement or in any certificate delivered to Buyer at the Closing;
(ii) any breach or nonperformance of any covenant covenant, agreement or obligation in this Agreement to be performed by the Company on Closing Date, (b) any misrepresentation or prior to the Closing hereunder;
(iii) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any informationin, or breach of of, any representation or warranty, set forth in the Spreadsheet, including any failure to properly calculate warranty made by the Company Closing Cashor any Seller in this Agreement or the certificates delivered pursuant Section 7.2.1, Company Closing Indebtedness, Company Transaction Expenses, the Adjusted Aggregate Consideration, the Company Securityholders’ Pro Rata Shares and the Company Securityholders’ Adjustment Pro Rata Shares;
or (ivc) any Fraud committed by or on behalf of the Company in connection with the Merger and the transactions described herein;
(v) without duplication of any amounts treated as Indebtedness that reduced the Base Merger Consideration, any Indemnified Taxes;
(vi) any Securityholder-Related Covered Claims;
(vii) the PPP Loan;
(viii) any Company Transaction Expenses or Indebtedness that remain outstanding and unpaid immediately prior . Notwithstanding anything herein to the Effective Time (without giving effect to the transactions contemplated hereby) that have not been taken into account in the calculation of the Final Adjustment Amount;
(ix) any payments paid with respect to Dissenting Shares to the extent that such paymentscontrary, in the aggregatedetermining if there is a misrepresentation or inaccuracy in, exceed the value of the amounts that otherwise would have been payable or a breach of, a representation or warranty in Article 3 or a certificate given pursuant to Section 2.6 upon 7.2.1, each representation, warranty or certificate referenced in clause (b) of the exchange of immediately preceding sentence shall read as if all Materiality Qualifications and qualifications as to Company’s Knowledge and Sellers’ Knowledge contained in any such Dissenting Shares and representation or warranty in Article 3 or in any costs or expenses incurred by a Buyer Indemnified Party in connection therewith;
(x) for three (3) years from and after the Closing, disregarding any disclosure of any matter in the Disclosure Schedule, the matters set forth on Schedule 8.2(a)(x) (collectively, the “Specified Matters”); and
(xi) any costs and expenses of enforcement certificate delivered pursuant to recover Losses due to any Buyer Indemnified Party under this Section 87.2.1 are ignored.
Appears in 1 contract
