Indemnification of Representative. The Representative will incur no liability of any kind with respect to any action or omission by the Representative in connection with its services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Representative’s gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Equityholders shall indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable, documented, out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Representative by the Equityholders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Expense Fund and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Equityholders; provided, that while this section allows the Representative to be paid from the aforementioned sources of funds, this does not relieve the Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at Law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
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Indemnification of Representative. The Each Holder agrees and acknowledges that in performing the functions specified in the Merger Agreement, the Representative will incur no liability of any kind with respect not be liable to any action Holder for any loss or omission damages it may suffer by reason of the performance by the Representative of its duties under the Merger Agreement, other than loss or damage arising from willful violation of the law or gross negligence in connection the performance of its duties under the Merger Agreement. Each Holder, severally in accordance with its services pursuant respective Pro Rata Percentage, agrees to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Representative’s gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Equityholders shall indemnify, defend indemnify and hold harmless the Representative for any loss or damage arising from the performance of its duties as Representative under the Merger Agreement, including, without limitation, the cost of any accounting firm or legal counsel retained by the Representative, but excluding any loss or damage arising from willful violation of the law or gross negligence in the performance of its duties under the Merger Agreement and against further agrees that such Holder will, upon receipt of any Earnout Amount received, immediately pay over the appropriate amount of such Earnout Amount received in respect of such loss or damage. Each Holder holding more than 5% of the outstanding Common Stock of the Company (a "5% STOCKHOLDER"), assuming that all shares of Series A Preferred Stock of the Company were converted to Common Stock of the Company, and treating all lossesCommon Stock of the Company owned by affiliated entities as owned by a single stockholder for purposes of determining whether such Holder holds more than 5% of the outstanding Common Stock of the Company, liabilitiesagrees to lend to the Representative such 5% Stockholder's pro rata portion of $150,000 (the "EXPENSE RESERVE") based upon such 5% Stockholder's holdings of Common Stock of the Company, damagesassuming such conversion, claimsto be held and used by the Representative in performing its duties hereunder, penalties, fines, forfeitures, actions, fees, costs and expenses it being understood that (including i) such loan will be repaid by the reasonable, documented, out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising to such 5% Stockholders on a pro rata basis out of or in connection with and to the Representative’s execution and performance extent of this any Earnout Amount, if any, paid to Holders under the Merger Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct upon termination of the Representative, 's duties under the Representative will reimburse the Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Representative by the Equityholders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Expense Fund Merger Agreement and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Equityholders; provided, that while this section allows the Representative to be paid from the aforementioned sources of funds, this does not relieve the Equityholders from their shall have no obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking repay any remedies available to it at Law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Equityholders or otherwiseExpense Reserve to such 5% Stockholders. Notwithstanding anything in this Agreement Each Holder agrees to the contrary, any restrictions or limitations on liability or indemnification obligations of the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreementsuch repayment arrangements.
Appears in 1 contract
Samples: Registration Rights Agreement (Flextronics International LTD)
Indemnification of Representative. The Representative will incur no liability of any kind with respect to any action or omission by the Representative in connection with its services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Representative’s gross negligence or willful misconduct. The Representative shall not be liable indemnified and defended by the Equityholders for any action or omission pursuant to and shall be held harmless by the advice of counsel. The Equityholders shall indemnify, defend and hold harmless the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable, documented, out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary heretothe Escrow Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Representative by the Equityholders, any such Representative Losses may be recovered by the Representative from (ia) the funds in the Representative Escrow Expense Fund and (iib) the amounts in the Escrow Fund Fund, but only to the extent and at such time as any amounts remaining amounts in the Escrow Fund would otherwise be distributable to the Equityholders; provided, that while this section allows the Representative to be paid from the aforementioned sources of fundsEscrow Expense Fund and the Escrow Fund, this does not relieve the Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at Law law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or This indemnification obligations of the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative under this section. The foregoing indemnities will shall survive the Closing, the resignation or removal of the Representative or the termination of this Agreement, the Exchange Agent Agreement and the Escrow Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be paid to the Representative by the Equityholders in accordance with their Consideration Share compared to the aggregate Consideration Shares of all Equityholders. The Representative may, in all questions arising under this Agreement or the Transaction Documents, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Representative in accordance with such advice of counsel, the Representative shall not be liable to the Equityholders, Buyer, Merger Sub, the Company, the Surviving Company, the Escrow Agent or any other Person. In no event shall the Representative be liable under this Agreement or the Transaction Documents, in its capacity as Representative, for (i) any indirect, punitive, special or consequential damages, or (ii) any amounts other than those that are satisfied out of the Escrow Expense Fund.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Vonage Holdings Corp)
Indemnification of Representative. The Representative will incur no liability of any kind with respect to any action or omission by the Representative in connection with its services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Representative’s gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Equityholders shall indemnify, defend and hold harmless the Representative from and against any and all lossesLosses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable, documented, out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative will reimburse the Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Representative by the Equityholders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Expense Fund and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the EquityholdersFund; provided, that while this section Section 8.5 allows the Representative to be paid from the aforementioned sources source of funds, this does not relieve the Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at Law law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative under this sectionSection 8.5. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Vertex Pharmaceuticals Inc / Ma)
Indemnification of Representative. The Each Stockholder shall severally indemnify and hold any Person serving as the Representative will harmless from and against any Damages (except as result from such Person’s bad faith, gross negligence or willful misconduct) that such Person may suffer or incur no liability in connection with any action taken by such Person as the Representative. Each Stockholder shall bear its pro-rata portion of such Damages. No Person serving as Representative shall be liable to any kind Stockholder with respect to any action or omission taken or omitted to be taken by the Representative in connection with its services pursuant to this Agreement and any agreements ancillary heretoARTICLE XI, except in the event of liability directly resulting from the Representativefor such Person’s gross negligence or willful misconduct. No Representative shall be responsible in any manner whatsoever for any failure or inability of Parent or Merger Sub, or of anyone else, to honor any of the provisions of this Agreement. The Representative shall be fully protected by the Stockholders in acting on and relying upon any written notice, direction, request, waiver, notice, consent, receipt or other paper or document which they in good faith believe to be genuine and to have been signed or presented by the proper party or parties. The Representative shall not be liable to the Stockholders for any action error of judgment, or omission pursuant to any act done or step taken or omitted by any of them in good faith or for any mistake in fact or law, or for anything which any of them may do or refrain from doing in connection herewith, except for their own bad faith, willful misconduct or gross negligence. The Representative may seek the advice of legal counsel, engage experts or otherwise incur reasonable expenses in the event of any dispute or question as to the construction of any of the provisions of this Agreement or their duties hereunder, and they shall incur no liability to Stockholders with respect to any action taken, omitted or suffered by them in good faith in accordance with the opinion of such counsel or experts. The Equityholders Stockholders shall indemnifyseverally, defend and on a pro rata basis in accordance with their ownership of Company Common Stock, hold harmless the Representative harmless from and against any and all lossessuch expenses, liabilitiesand, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable, documented, out-of-pocket fees and expenses of counsel and experts and their staffs in addition to any and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representativeother remedies available, the Representative will reimburse shall have the Equityholders the amount of such indemnified Representative Loss right to set-off against any amounts due to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Representative by the Equityholders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Expense Fund and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Equityholders; provided, that while this section allows the Representative to be paid from the aforementioned sources of funds, this does not relieve the Equityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at Law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this AgreementStockholders.
Appears in 1 contract
