Indemnification Provisions for Benefit of Parent. (a) Subject to the provisions of this Article IX, Parent, the Company and Sub, together with their directors, officers, stockholders, employees, agents, successors and assigns (collectively, the "Parent Indemnified Parties") shall be indemnified after the Effective Time from and against any and all damage, loss, liability and expense (including without limitation reasonable expenses of investigation and reasonable attorneys' fees and reasonable expenses in connection with any action, suit or proceeding) incurred or suffered by the Parent Indemnified Parties arising out of any (i) breach of the representations, warranties, covenants or agreements of the Company set forth herein (the "Breach Damages"), (ii) failure to obtain the consent, approval or waiver required under any Lease as a result of the consummation of the transactions contemplated by this Agreement (the "Lease Damages" and, together with the Breach Damages, the "Parent Indemnifiable Damages") (iii) claim or action by either Dianx Xxxxxxxx xx DiNata, Inc., a franchisee of the Company, related to facts or circumstances that exist as of the Effective Time (the "Hardxxxx/XxXata Claim Damages") or (iv) claim or action by Willxxxxxx Xxxxx ("Xeyex"), including, but not limited to, the Equal Employment Opportunity Commission claim made by Reyex (xxe "Reyex Xxxim Damages" and, together with the Hardxxxx/XxXata Claim Damages, the "Specific Claim Damages"). For purposes of indemnification under Section 9.2(a)(ii), the Lease Damages shall be calculated by determining the reduction in the amount of annual earnings before interest, taxes, depreciation and amortization ("EBITDA") of the store that is subject to the Lease for which consent, approval or waiver was not obtained, compared to the EBITDA of that store for the twelve (12) month period ended December 31, 1998, and multiplying such reduction by 3.5. In the event that a store is closed as a result of the failure to obtain a required consent, approval or waiver, the Lease Damages shall be calculated based upon the EBITDA of that store for the 12 month period ended December 31, 1998, multiplied by 3.5. The Parent Indemnified Parties shall not be entitled to indemnification under Section 9.2(a)(i) and (ii) until the Parent Indemnifiable Damages exceed $100,000 (the "Indemnity Threshold") but once exceeded shall be entitled to indemnification for all Parent Indemnifiable Damages, inclusive of the Indemnity Threshold, subject to the provisions of Section 9....
Indemnification Provisions for Benefit of Parent. 8.5.2.1 Subject to the limitations set forth in this Article VIII, from and after the Closing, the Parent, Purchaser, the Surviving Corporation, their officers, directors and affiliates (the “Parent Indemnified Parties”) shall be indemnified and held harmless from and against, and shall be reimbursed solely through the Indemnity Escrow for the following liabilities and Losses (the “Indemnified Losses”):
(i) any and all Losses arising out of any inaccuracy or misrepresentation in, or breach of, any representation or warranty made by SBI in this Agreement, together with the SBI Disclosure Schedules, or in any document required to be delivered pursuant to this Agreement by SBI;
(ii) any and all Losses arising out of any failure by SBI to perform or comply, in whole or in part, with any covenant or agreement in this Agreement;
(iii) all liability for Taxes of SBI or any of the SBI Subsidiaries assessed during or attributable to any taxable period ending on or prior to the Closing Date (and for any taxable period beginning before the Closing Date and ending after the Closing Date, the portion ending on the Closing Date) to the extent such Taxes exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth as a current liability on the face of the Final Closing Balance Sheet (rather than in any notes thereto);
(iv) any liability for Taxes of SBI or any of the SBI Subsidiaries resulting from the transactions contemplated by this Agreement, including without limitation any Taxes resulting from the disposition of the Distribution Assets contemplated in Section 6.10 hereof to the extent such Taxes exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth as a current liability on the face of the Final Closing Balance Sheet;
(v) any Loss resulting from a claim, demand, cause of action, suit, proceeding, hearing or investigation by any person or entity relating to SBI’s operations on or before the Closing Date; provided, that no indemnification shall be available with respect to such claims, demands, causes of actions, suits, proceedings, hearings and investigations disclosed on Section 4.11 of the SBI Disclosure Schedule (the “Disclosed Litigation Claims”) unless the aggregate amount of Losses from such Disclosed Litigation Claims exceeds the amount reserved for such...
Indemnification Provisions for Benefit of Parent. In the event that the Company violates, misrepresents or breaches (or in the event any third party alleges facts that are ultimately proven or conceded to represent a Company violation, misrepresentation or breach) any of its representations, warranties, and covenants contained herein including, without limitation, the covenants and agreements of the Company to provide Company Information contained in Section 8.1(b) hereof and, if there is an applicable Survival Period pursuant to Section 11.1 above, provided that the Parent Representative makes a written claim for indemnification against the Company pursuant to Section 11.6 below within the Survival Period, then the Indemnifying Members agree to indemnify Parent from and against the entirety of any Adverse Consequences that Parent may suffer through and after the date of the claim for indemnification (including any Adverse Consequences Parent may suffer after the end of any applicable Survival Period) resulting from, arising out of, relating to, in the nature of, or caused by the violation, misrepresentation or breach. Any Liability incurred by the Indemnifying Members pursuant to the terms of this Article XI shall be limited, and paid by, the Indemnifying Members to Parent in accordance with this Section 11 which shall represent, except in the event of actual fraud by the Company, the sole and exclusive source for payment of any indemnification obligations of the Indemnifying Members. All determinations relating to the submission of claims for the benefit of Parent hereunder shall be determined, in good faith, solely by the nominees of Parent to the Board of Directors.
Indemnification Provisions for Benefit of Parent. (a) The Stockholders shall indemnify, defend and hold harmless Parent and its Affiliates (i) jointly and severally, from and against all Damages resulting from or arising out of any breach of the representations and warranties set forth in Sections 3.1(f), 3.1(r) (but in the case of Section 3.1(r) only to the extent relating to direct transactions between the Company and its Subsidiaries and any Stockholder or Affiliate of the Company (other than any portfolio company controlled by Fund II)) and 3.1(u), and the covenant contained in Section 4.1(a)(i) (to the extent related to actions other than those taken by or at the express direction of any of the Stockholders) provided that Parent makes a written claim for indemnification to the Stockholder Representative within the applicable survival period, (ii) [intentionally omitted], (iii) severally, but not jointly, from and against all Damages resulting from or arising out of any breach by the Company of any of the covenants contained in Section 4.1(a) (but only to the extent related to actions taken by or at the express direction of any of the Stockholders), provided that Parent makes a written claim for indemnification to the Stockholder Representative within the applicable survival period, (iv) severally, but not jointly, from and against all Damages resulting from or arising out of any breach by a Stockholder of the covenants contained in Section 4.11 provided that Parent makes a written claim for indemnification to the Stockholder Representative within the applicable survival period, (v) severally, but not jointly, from and against all Damages resulting from or arising out of any breach by a Stockholder of any of the Perpetual Provisions, (vi) jointly and severally from and against all Damages resulting from or arising out of any breach by the Company of the Perpetual Provisions, which breach shall have occurred prior to or at the Effective Time, provided, with respect to the covenants contained in Section 4.2 that Parent makes a written claim for indemnification to the Stockholder Representative within the applicable survival period, and (vii) jointly and severally from and against all Damages resulting from or arising out of:
(A) any Indebtedness except to the extent included in the Debt Amount, (B) Preferred Stock (in excess of the Preferred Stock Amount), (C) Options (in excess of the Option Payment Amount less the aggregate Option Reserve Holdback), and (D) Common Stock (in excess of the aggregate Mer...
Indemnification Provisions for Benefit of Parent. (a) Subject to the terms and conditions of this Article VIII, each Company Stockholder, severally and not jointly, will indemnify, defend and hold harmless each of the 43
(b) With respect to the matters described in Section 8.02(a)(ii) and Section 8.02(a)(iii), the aggregate maximum amount of Losses recoverable by the Parent Indemnified Parties shall in no event exceed the Indemnification Escrow Fund and amounts recoverable under the R&W Insurance Policy; provided, that the foregoing limitation shall not apply to any indemnifiable Losses resulting from Fraud.
(c) With respect to the matters described in Section 8.02(a)(iv), the aggregate maximum amount of Losses recoverable by the Parent Indemnified Parties shall in no event exceed the Severance Escrow Fund.
(d) With respect to the matters described in Section 8.02(a)(i), the aggregate maximum amount of Losses recoverable by the Parent Indemnified Parties from the Company Stockholders shall be the Aggregate Consideration; provided, however, that any Losses payable by the Company Stockholders pursuant to Section 8.02(a)(i) shall be borne by the Company Stockholders in accordance with their respective Pro Rata Percentage of such Losses, subject to the conditions, principles, qualifications and limitations and other provisions of this Article VIII.
(e) With respect to the matters described in Section 8.02(a)(iii), no Company Stockholder will have any liability with respect to such matters until the Parent Indemnified Parties have incurred aggregate indemnifiable Losses by reason of such matters in excess of $100,000 (the “Deductible”), after which point the Company Stockholders will only be obligated 44
Indemnification Provisions for Benefit of Parent. In the event the Company or the Seller breaches any of its representations, warranties, covenants and agreements contained in this Agreement, and, provided that Parent makes a written claim for indemnification against the Seller pursuant to Section 12.2 below within the survival period set forth in Section 11.1 above, then, subject to the provisions of Section 11.2 above, the Seller agrees to indemnify Parent and each of its subsidiaries and affiliates from and against the entirety of any Adverse Consequences Parent may suffer through and after the date of the claim for indemnification (including any Adverse Consequences Parent or any of its subsidiaries or affiliates may suffer after the end of the applicable survival period) resulting from, arising out of, relating to, in the nature of or caused by the breach.
Indemnification Provisions for Benefit of Parent. 30 8.03 INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SHAREHOLDERS...30 8.04
Indemnification Provisions for Benefit of Parent. (a) In the event (i) the Shareholders breach any of their representations, warranties and covenants contained herein , and (ii) the Company or Parent suffer any loss, claim, cost or change in connection with the litigation disclosed in Section 4.23 of the Disclosure Schedule without regard to the Threshold Amount (as defined herein), then the Shareholders jointly and severally agree to indemnify Parent from and against the entirety of any Adverse Consequences Parent or Company may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by such breach, loss, claim, cost or damage.
(b) Shareholders jointly and severally agree to indemnify Parent from and against the entirety of any Adverse Consequences Parent may suffer resulting from, arising out of, relating to, in the nature of, or caused by any Liability of the Company for the unpaid Taxes of any Person (other than the Company) under Treas. Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Indemnification Provisions for Benefit of Parent. (a) Subject to Section 9.4 hereof, in the event Century breaches any of its representations, warranties, and covenants contained herein, and, if there is an applicable survival period pursuant to Section 9.1 above, provided that Parent makes a written claim for indemnification against the Active Shareholders pursuant to Section 13.8 below within such survival period, then each of the Active Shareholders agrees to indemnify Parent from any Adverse Consequences Parent may suffer through and after the date of the claim for indemnification (including any Adverse Consequences Parent may suffer after the end of any applicable survival period) resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach).
(b) Subject to Sections 9.1 and 9.5, each of the Active Shareholders agrees to indemnify Parent from and against the entirety of any Adverse Consequences Parent may suffer resulting from, arising out of, relating to, in the nature of, or caused by any Liability of Century for any funded, unfunded or other ERISA liability of any nature or for any Taxes or Tax Return of Century with respect to any Tax year or portion thereof ending on or before the Closing Date (or for any Tax year beginning before and ending after the Closing Date to the extent allocable (determined in a manner consistent with Section 11 below) to the portion of such period beginning before and ending on the Closing Date), to the extent such Taxes are not reflected in the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) shown on the face of the Most Recent Balance Sheet, as such reserve is adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Century.
Indemnification Provisions for Benefit of Parent. 7.3.2.1 Subject to the limitations set forth in this Article VII, from and after the Closing, the Parent, Purchaser, the Surviving Corporation, their officers, directors and Affiliates (including each of the successors, assigns and agents of the foregoing) (the "Parent Indemnified Parties") shall be indemnified and held harmless from and against, and shall be reimbursed solely through the Holdback for the following liabilities and Losses (the "Indemnified Losses"):
(i) any and all Losses arising out of any inaccuracy or misrepresentation in, or breach of, any representation or warranty made by Caroderm or the Shareholders in this Agreement, together with the Disclosure Schedules, or in any document delivered in connection with Agreement by Caroderm or the Shareholders;
(ii) any and all Losses arising out of any failure by Caroderm or the Shareholders to perform or comply, in whole or in part, with any covenant or agreement in this Agreement;
(iii) all liability for Taxes of Caroderm (including, without limitation, any and all liability associated with the matter disclosed in Section 4.5.1 of the Disclosure Schedule) assessed during or attributable to any taxable period ending on or prior to the Closing Date (and for any taxable period beginning before the Closing Date and ending after the Closing Date, the portion ending at the end of the Closing Date) to the extent such Taxes exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth as a current liability on the face of the Most Recent Balance Sheet (rather than in any notes thereto);
(iv) any Loss resulting from a claim, demand, cause of action, suit, proceeding, hearing or investigation by any person or entity relating to Caroderm's operations on or before the Closing Date (including, without limitation, any and all actions relating to the issuance of shares of capital stock of Caroderm, the approval of the transactions contemplated by this Agreement, or the matters identified on Schedule 4.7 of the Disclosure Schedule); and
(v) any expenses of Caroderm incurred in connection with the transactions contemplated hereby; provided, however, that Parent Indemnified Parties shall not have any right to be indemnified from and against any losses resulting from, arising out of, relating to, in the nature of, or caused by any of the matters set forth in Section 7.3.2.1 (i) – (v) until the Parent Indemnified Par...
