Indemnification of Parent Indemnified Parties. (a) Stockholder hereby agrees to be bound by the provisions of Article 9 of the Merger Agreement as if Stockholder were a direct party thereto. For the avoidance of doubt, the obligation of Stockholder to indemnify the Parent Indemnified Parties against, save and hold the Parent Indemnified Parties harmless from and against, and pay on behalf of or reimburse the Parent Indemnified Parties for, any Adverse Consequences pursuant to Article 9 of the Merger Agreement shall be subject to the limitations and procedures expressly set forth in Article 9 of the Merger Agreement.
(b) Notwithstanding the foregoing, (i) in the event that both Stockholder and, if applicable, the Holding Vehicle in which such Stockholder holds voting equity interests (the “Applicable Holding Vehicle”), are parties to Closing Agreements with Parent, the Applicable Holding Vehicle shall be the indemnitor of first resort with respect to the claims that may be brought by any Parent Indemnified Parties against such Stockholder pursuant to Article 9 of the Merger Agreement, with the obligations of the Applicable Holding Vehicle being primary and any obligations of such Stockholder being full and unconditional but secondary with respect to such indemnification obligations described in the foregoing sentence, and (ii) in the event that the Applicable Holding Vehicle distributes the shares of Parent Common Stock held by it to such Stockholder or dissolves, liquidates, terminates its existence or otherwise ceases to exist, such Stockholder shall be obligated to indemnify the Parent Indemnified Parties as to any claim for indemnification under Article 9 of the Merger Agreement in accordance with its Pro Rata Share.
(c) The Miscellaneous provisions contained in Article 10 of the Merger Agreement (including Sections 10.9, 10.11, 10.12 and 10.18) shall be binding upon Stockholder with respect to the interpretation, enforceability, performance, termination or validity of Article 9 and any claims for indemnification made thereunder.
Indemnification of Parent Indemnified Parties. (a) From and after the Effective Time (but subject to Section 6.1 and the other applicable provisions of this Section 6), each Escrow Participant agrees to severally (in accordance with its Participation Percentage) and not jointly indemnify and hold harmless Parent and its officers, directors, Affiliates, employees, agents and representatives, including the Company (the “Parent Indemnified Parties”), against any and all claims, losses, liabilities, damages, Taxes, costs, interest, awards, judgments, penalties and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any such reasonable out-of-pocket expenses incurred in connection with investigating, defending against or settling any of the foregoing (collectively, “Damages”), incurred or sustained by the Parent Indemnified Parties, or any of them (including the Company), directly or indirectly, as a result of the following:
(i) any breach or inaccuracy of a representation or warranty of the Company contained in Section 2 or in a certificate or other instrument executed and delivered by the Company pursuant to this Agreement;
(ii) any failure of the Company to perform or comply with any covenant or agreement applicable to it contained in this Agreement to be performed by it prior to the Closing;
(iii) any inaccuracy or omission in the sections of the Consideration Spreadsheet corresponding to Sections 1.3(c), 1.3(d), 1.3(e) and 1.3(f), including any amounts set forth therein that are paid to a Person in excess of the amounts such Person is entitled to receive pursuant to the terms of this Agreement or any amounts a Person was entitled to receive pursuant to the terms of this Agreement that was omitted from such sections of the Consideration Spreadsheet;
(iv) any amount paid (including in the form of shares of Parent Common Stock, based on the Parent Common Stock Price Per Share) in respect of Dissenting Shares pursuant to Section 262 of the DGCL in excess of the consideration, if any, to which the holder thereof would otherwise have been entitled with respect to such Dissenting Shares under this Agreement; and
(v) (A) any fraud committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates has Knowledge prior to the Closing and (B) any willful breach or intentional misrepresentation of or related to this Agreement, any certificate delivered pursuant to this Agreement, the Consideration Spreadsheet or other instru...
Indemnification of Parent Indemnified Parties. (a) From and after the Closing, subject to the limitations set forth in this Article IX, Parent and Merger Sub and their respective directors, officers, employees, agents, Affiliates, successor and assigns (each a “Parent Indemnified Party” and, collectively, the “Parent Indemnified Parties”) shall be indemnified and held harmless by, on a joint and several basis, the Shareholders from and against, any and all liabilities, obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs and expenses (including reasonable attorneys’ fees) (hereinafter, a “Loss” or the “Losses”), sustained or incurred by any Parent Indemnified Party, resulting from:
(i) any breach of a representation or warranty made by the Company in Article III of this Agreement or in any of the other Transaction Documents;
(ii) any breach of a covenant made by the Company in this Agreement or any of the Transaction Documents;
(iii) any Taxes of the Company or its Subsidiaries for which the Shareholders are liable pursuant to the provisions of Section 8.1;
(iv) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the Company or any Subsidiary (or any Person acting on their behalf) in connection with any of the transactions contemplated by this Agreement;
(v) any Company Transaction Expenses or Repaid Indebtedness that were not accounted for in the calculation of the payments made by Parent pursuant to Section 2.9;
(vi) any error in the calculation of each Shareholder’s Pro Rata Percentage;
(vii) any claim by any officer, manager or director of the Company or any of its Subsidiaries for indemnification, contribution, reimbursement or other remedy against the Company or any of its Subsidiaries arising out of or pertaining to matters existing or occurring at or prior to Closing; or
(viii) any claim by any Shareholder arising out of the transactions contemplated by this Agreement other than claims against Parent for breach of this Agreement.
(b) If any Parent Indemnified Party becomes potentially entitled to any indemnification pursuant to Section 9.2(a), the amount that such Parent Indemnified Party is entitled to recover in connection therewith shall nevertheless be limited as follows:
(i) first, no Losses pursuant to Section 9.2(a)(i) shall be payable until the total of all such Losses exceeds $85,000 (the “Deductible”), ...
Indemnification of Parent Indemnified Parties. (a) From and after the Closing (but subject to the provisions of this Article IX), the Representative (in its capacity as such) will indemnify Parent and its Affiliates and each of their officers, directors, employees or agents (each, a “Parent Indemnified Party” and collectively, the “Parent Indemnified Parties”) from and against any and all losses, liabilities, Taxes, damages, expenses, penalties, fines, and costs (including reasonable legal and accounting fees and expenses and the cost of investigation and defense) whether or not involving a third party claim, but excluding any reduction in Tax net operating loss or other Tax attribute of the Company or its Subsidiaries that does not result in an increase in Pre-Closing Taxes (“Losses”), suffered by any Parent Indemnified Party to the extent arising out of, in connection with, or related to (i) any breach of any representation or warranty of the Company set forth in this Agreement or by any Stockholder in the Letter of Transmittal delivered by such Stockholder, (ii) the breach of any covenant or agreement made by (x) the Company in Section 7.2(b), Section 7.3, Section 7.9, Section 7.10, Section 7.11, and Section 7.14 to be performed prior to the Closing (the “Specified Covenants”) or (y) the Representative to be performed following the Closing, (iii) any Adjustment Escrow Deficiency Amount in accordance with Section 3.7, and (iv) any item set forth on Schedule 9.1(a)(iv).
(b) In addition to (but without duplication of) the foregoing, from and after the Closing, the Representative (in its capacity as such) will indemnify the Parent Indemnified Parties from and against any Taxes imposed on the Company or any of its Subsidiaries (whether imposed by Law, Tax sharing agreement, Tax indemnity obligation or similar agreement in respect of Taxes that was entered into prior to the Closing Date, or otherwise) with respect to Pre-Closing Tax Periods or Pre-Closing Straddle Periods, in each case, to the extent not otherwise already accrued in the calculation of Final Pre-Closing Taxes, Net Working Capital, Transaction Costs or Indebtedness, and excluding any Taxes attributable to (A) any election made under Section 338 of the Code (or any corresponding foreign, state or local election), (B) any tax elections or amended Tax Returns (other than tax elections or amended Tax Returns filed pursuant to Section 7.12 and, to the extent required, consented to by Representative) or changes in method of Tax accounting, in eac...
Indemnification of Parent Indemnified Parties. (a) After the Effective Time, Parent and its Affiliates (including, after the Effective Time, the Surviving Corporation), officers, directors, employees, agents, successors and assigns (collectively, the Parent Indemnified Parties”) shall be indemnified and held harmless by the Principal Stockholders for any and all liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including attorneys’ fees and expenses) actually suffered or incurred by one of more of the Parent Indemnified Parties (hereinafter, a “Loss”), arising out of or resulting from: (i) the breach of any representation or warranty made by the Company in this Agreement; (ii) the breach of any covenant or agreement made by the Company in this Agreement; (iii) the matters set forth on Schedule 8.2(a)(iii); (iv) any errors, omissions or inaccuracies in the Merger Consideration Schedule, and (v) the matters set forth on Schedule 8.2(a)(v).
(b) Notwithstanding anything to the contrary contained in this Agreement:
(i) the Parent Indemnified Parties shall not be entitled to indemnity for indemnifiable Losses otherwise payable under Section 8.2(a)(i) (other than with respect to the representations and warranties set forth in Section 3.1, 3.2, 3.3 and 3.18) unless and until the aggregate amount of indemnifiable Losses exceeds an amount equal to $1 million (the “Basket Amount”), at which point the Parent Indemnified Parties shall be entitled to indemnification from and against such aggregate Losses in excess of the Basket Amount;
(ii) the maximum amount of indemnifiable Losses which may be recovered by the Parent Indemnified Parties shall be limited to the amount of the Escrow Fund and each Principal Stockholder’s maximum indemnity obligation shall be limited to such Principal Stockholders’ interest in the Escrow Fund;
(iii) in calculating the amount of Losses recoverable pursuant to Section 8.2(a), the amount of such Losses shall be reduced by any insurance proceeds actually received relating to such Losses, net of any related deductible and expenses actually and reasonably incurred to obtain such proceeds. In the event an indemnification payment is received by any Parent Indemnified Party in respect of any Losses, and such Parent Indemnified Party later receives any such net insurance proceeds, Parent shall promptly, and in any event no later than ten business days following such receipt, pay to the Principal Stockholders’ Representative the lesser of such n...
Indemnification of Parent Indemnified Parties. 39 SECTION 10.2 INDEMNIFICATION OF THE COMPANY INDEMNIFIED PARTIES . . . . . . . . . . . . . . . . . . . . 40 SECTION 10.3 DEFENSE OF THIRD-PARTY CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 10.4 DIRECT CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 10.5 LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 10.6 RECOURSE AGAINST ESCROWED SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 ARTICLE XI TERMINATION, AMENDMENT AND WAIVER
Indemnification of Parent Indemnified Parties. After the Effective Time, Parent and its Affiliates (including, after the Effective Time, the Surviving Corporation), officers, directors, employees, agents, successors and assigns (collectively, the "Parent Indemnified Parties", shall be indemnified and held harmless for any and all liabilities, losses, damages, claims, incidental damages, interest, awards, judgments and penalties (including reasonable attorneys' and consultants' fees and expenses) actually suffered or incurred by them (including, without limitation, in connection with any action brought or otherwise initiated by any of them) (hereinafter, a "Loss" and collectively, "Losses"), arising out of or resulting from (without duplication):
(i) excluding any matters related to Taxes, the breach of any representation or warranty made by the Company in this Agreement (provided that in calculating the amount of any Loss, as opposed to whether there has been a breach, such Loss shall be calculated without regard to qualifications as to "materiality" including the word "material" or Material Adverse Effect) and any other certificate delivered by GFI and the Company pursuant to this Agreement;
(ii) the breach of any covenant or agreement made by GFI, the Representative and the Company in this Agreement and any other certificate delivered pursuant to this Agreement, which, in the case of the Company, is to be performed on or prior to the Closing Date;
(iii) the payment by Parent, the Surviving Corporation, any Subsidiary or any Affiliate thereof of any Excluded Taxes;
(iv) any action by any Stockholder in respect of any Dissenting Shares, but only to the extent Losses in respect thereof exceed the Per Share Merger Consideration otherwise payable in respect of such Dissenting Shares;
(v) any Closing Expenses to the extent such Closing Expenses were not (A) deducted from the Merger Consideration, (B) paid or (C) reflected as liabilities in the calculation of Working Capital; or
(vi) the inaccuracy of the Per Share Merger Consideration Certificate to the extent it results in the payment of excess Merger Consideration. Recovery under this indemnity shall be solely as provided in Section 9.04.
Indemnification of Parent Indemnified Parties. Subject to the limitations on liability set forth in Section 14.3(a) below, each Indemnifying Securityholder who accepts payment of the applicable portion of the Closing Consideration pursuant to this Agreement pursuant to Section 2 shall be deemed to have agreed, and hereby agrees, to indemnify, defend and hold harmless, severally and not jointly, the Parent Indemnified Parties from and against, and such Parent Indemnified Parties shall be entitled to be compensated and reimbursed for, any and all Damages arising from or related to (a) any Fraud Claim and (b) any misrepresentation or breach or failure of Section 3.4 as it related to such Indemnifying Securityholder's Company Stock. The Stockholder Written Consents and the Offer Package Agreements shall contain provisions pursuant to which any Indemnifying Securityholder that executes such documents shall expressly agree to the foregoing indemnification and the other terms of this Agreement that are intended to be binding upon the Indemnifying Securityholders.
Indemnification of Parent Indemnified Parties. Parent and the Surviving Corporation, and their respective officers, directors, employees, consultants, stockholders and Affiliates (collectively, the “Parent Indemnified Parties”), pursuant to the terms of this Agreement, shall be indemnified out of and to the extent of the balance remaining from time to time in the Escrow Fund, from and against any and all Losses which (i) any of the Parent Indemnified Parties shall have actually sustained, or to which any of the Parent Indemnified Parties shall have actually been subjected, relating to or arising directly or indirectly out of any breach or default by the Company of any of its representations or warranties contained in Article II hereof or any of its covenants or agreements under this Agreement, (ii) the Surviving Corporation or any Company Subsidiary shall have actually sustained, or to which the Surviving Corporation or any Company Subsidiary shall have actually been subjected, by reason of any claim asserted by any Note Holder or any former holder of Company Preferred Stock, (iii) the Surviving Corporation or any Company Subsidiary shall have actually sustained, or to which the Surviving Corporation or any Company Subsidiary shall have actually been subjected, by reason of any claim arising out of or relating to the SLPH Reverse Stock Split, all subject to the terms and conditions of this Article X, or (iv) subject to the limitations set out in Section 10.9, the Surviving Corporation or any of the Company Subsidiaries shall have actually sustained, or to which the Surviving Corporation of any of the Company Subsidiaries shall have actually been subjected, arising out of or relating to the pending litigation matters (the “Pending Litigation”) described in Schedule 2.10 as (A) Fxxxxx Petroleum Corporation/Heirs of Lxxxx Xxxxxxxx, et al., v. BP Amoco, et al., No. 99-19530, on the docket of the Civil District Court for the Parish of New Orleans in the State of Louisiana, and (B) Rathborne Land Company LLC and Sxxxxxxxx Family Land LLC v. Ascent Energy, Inc., Civil Action No. 05-2452, on the docket of the United States District Court for the Eastern District of Louisiana. As used in this Agreement, the term “Losses” shall include all losses, liabilities, damages, judgments, awards, orders, penalties, settlements, costs and expenses (including, without limitation, interest, penalties, court costs and reasonable legal fees and expenses) including those arising from any demands, claims, suits, actions, costs ...
Indemnification of Parent Indemnified Parties. Each Indemnifying Stockholder shall be deemed to have agreed, and hereby agrees, to indemnify, defend and hold harmless, severally and not jointly and based on their respective Pro Rata Portion, the Parent Indemnified Parties from and against, and such Parent Indemnified Parties shall be entitled to be compensated and reimbursed for, any and all Damages arising from or related to (i) a Fraud Claim or (ii) misrepresentation or breach or failure of any of the Extended Representations, subject to the limitations of this Section 14. The Stockholders’ Written Consents and the Offer Package Agreements shall contain provisions pursuant to which any Indemnifying Stockholder that executes such documents shall expressly agree to the foregoing indemnification and the other terms of this Agreement that are intended to be binding upon the Indemnifying Stockholders.
