Indemnification Provisions for the Benefit of Buyer. (a) If (i) JJMA or any Equity Participant Breaches (A) any representation or warranty of JJMA and/or any Equity Participant contained in this Agreement (regardless of the Party making such representation or warranty) or (B) any covenant of JJMA and/or any Equity Participant contained in this Agreement, or (ii) any claim relating to Seller and/or the JJMA ESOP is made by any participant in the JJMA ESOP against JJMA or any of its Affiliates or any claim is made by the Seller Trustee for Adverse Consequences relating to claims made by any participants in the JJMA ESOP or any other third parties (an “ESOP Related Claim”), and if Buyer makes a written claim for indemnification within three (3) years from the Closing Date, then, subject to the limitations contained elsewhere in this Article 10, the SAR/Option Holders shall severally, in accordance with the following proportions: (x) P. Xxxxxx Xxxxxxx, 40%, (y) Xxxxxxx Xxxxx, 40%; and (z) Xxxxx Xxxxxxxxxx, 20%, indemnify and hold harmless Buyer and its shareholders, directors, officers, employees, agents, successors and assigns (the “Buyer Indemnitees”) from and against any Adverse Consequences that any such Buyer Indemnitee may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to or caused by the Breach or ESOP Related Claim. Notwithstanding the foregoing, Buyer shall not be entitled to indemnification under this Section 10.02(a) for any consequential or punitive damages except with respect to claims brought by third parties against Buyer. (b) If Buyer is entitled to indemnification pursuant to Section 2.08(d) or Section 2.08(e) with respect to the determination of the Actual Net Working Capital or the Actual Supplemental Amount (a “Payment Adjustment Claim”), and if Buyer makes a written claim for indemnification within sixty (60) days from the Closing Date, then, subject to the limitations contained elsewhere in this Article 10, the Equity Participants shall severally in proportion to their Equity Proportions pay Buyer the amounts owed to Buyer pursuant to Sections 2.08(d) and 2.08(e). (c) Except with respect to (i) any Breach of a Seller Basket Exception, (ii) any Breach of any covenant of JJMA and/or the Equity Participants contained herein, (iii) any Breach of the representations and warranties made in Sections 3.11, 3.13 (only with respect to the portions of Section 3.13 pertaining to ERISA or the violation or non-compliance with any Law), 3.14(e), 3.33, 3.35 and/or 3.37(e) (the “Designated Representations”), or (iv) any ESOP Related Claim, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $350,000 in the aggregate and $75,000 in each individual instance, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $350,000. With respect to any Breach of a Designated Representation, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $100,000 in the aggregate, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $100,000 and regardless of claim amount. With respect to (i) any Breach of a Seller Basket Exception, (ii) any Breach of any covenant of JJMA and/or the Equity Participants contained herein or (iii) any ESOP Related Claim, the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences from the first dollar and regardless of claim amount. With respect to any Payment Adjustment Claim, the Equity Participants shall be required to indemnify the Buyer from the first dollar and regardless of claim amount. (d) Notwithstanding the foregoing, the aggregate liability of all Equity Participants under Section 10.02(a) shall be limited to (i) $3,000,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee prior to and including the first anniversary of the Closing Date (“Period 1 Buyer Claims”), (ii) $1,500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the first anniversary of the Closing Date and prior to an including the second anniversary of the Closing Date (“Period 2 Buyer Claims”) and (iii) $500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the second anniversary of the Closing Date and prior to and including the third anniversary of the Closing Date (“Period 3 Buyer Claims”); provided, however, that, subject to Section 10.06 hereof, in no event shall the aggregate liability of all Equity Participants under Section 10.02(a) exceed $3,500,000 regardless of when a claim for indemnification under Section 10.02(a) is made. Subject to Section 10.06 hereof, no Equity Participant shall have any liability for claims for indemnification made after the third anniversary of the Closing Date. (e) Notwithstanding any provision herein to the contrary, the aggregate liability of Seller under Section 10.02(b) shall be limited to $500,000 and shall be satisfied solely by the delivery of cash from the Escrow Fund pursuant to the terms of the Escrow Agreement. (f) Except with respect to Payment Adjustment Claims and as set forth in Section 11.17 hereof, the source of indemnification payments to satisfy claims for indemnification under this Section 10.02 shall be as follows: (i) with respect to Period 1 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amount, (ii) with respect to Period 2 Buyer Claims, Buyer shall be entitled to offset against and recover from SAR Termination Payments, the Diamant Non-Compete Payments, the Serro Non-Compete Payments and the Hanafourde Holdback Amount, and (iii) with respect to Period 3 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amounts. With respect to Payment Adjustment Claims, the SAR/Option Holders shall pay Buyer the full amount of such claims in cash by wire transfer within three (3) business days after the date on which the Actual Net Working Capital and the Actual Supplemental Amount are finally determined pursuant to Section 2.08(c), and the Buyer shall be entitled to recover from the Escrow Fund in accordance with the terms of the Escrow Agreement and Section 10.02(e) hereof. (g) The aggregate amount owed by the Equity Participants to Buyer for any claims for indemnification under Section 10.02(a) shall be reduced by the aggregate amount above $150,000, less Buyer’s reasonable costs of collection paid to third parties, collected by Buyer following the Closing Date under JJMA’s Teaming Agreement, dated August 29, 2001, with Resource Consultants, Inc. with respect to NAVSUP Solicitation No. N00140-01-R-3678.
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Samples: Stock Purchase Agreement (Alion Science & Technology Corp), Stock Purchase Agreement (Alion Science & Technology Corp)
Indemnification Provisions for the Benefit of Buyer. (a) If (i) JJMA or any Equity Participant Breaches (A) any representation or warranty of JJMA and/or any Equity Participant contained in this Agreement (regardless of the Party making such representation or warranty) or (B) any covenant of JJMA and/or any Equity Participant contained in this AgreementSubject to Section 8.4, or (ii) any claim relating Seller agrees to Seller and/or the JJMA ESOP is made by any participant in the JJMA ESOP against JJMA or any of its Affiliates or any claim is made by the Seller Trustee for Adverse Consequences relating to claims made by any participants in the JJMA ESOP or any other third parties (an “ESOP Related Claim”), and if Buyer makes a written claim for indemnification within three (3) years from the Closing Date, then, subject to the limitations contained elsewhere in this Article 10, the SAR/Option Holders shall severally, in accordance with the following proportions: (x) P. Xxxxxx Xxxxxxx, 40%, (y) Xxxxxxx Xxxxx, 40%; and (z) Xxxxx Xxxxxxxxxx, 20%, indemnify and hold the Buyer Indemnified Parties harmless Buyer and its shareholders, directors, officers, employees, agents, successors and assigns (the “Buyer Indemnitees”) from and against any Adverse Consequences that claims, assessments, losses, damages, liabilities, deficiencies, judgments, settlements, costs and expenses, including interest, penalties and reasonable attorneys' fees and expenses incurred in enforcing this indemnification or in any such litigation between the parties or with third parties (collectively, "Damages") asserted against, resulting to, imposed upon, suffered or incurred by any Buyer Indemnitee may suffer through and after the date of the claim for indemnification Indemnified Party resulting from, arising out of, relating to to, or caused by (i) the Breach breach of Seller's representations, warranties, obligations or ESOP Related Claim. Notwithstanding covenants contained herein, or (ii) the foregoingoperation of the Purchased Business or ownership of the Acquired Assets by Seller or its predecessors in interest on or prior to the Closing Date, Buyer shall not be entitled to indemnification under this Section 10.02(aincluding, without limitation, (A) for any consequential Proceedings based on conduct of Seller or punitive damages except with respect to claims brought by third parties against Buyerits predecessors in interest occurring before the Closing or (B) any Retained Liabilities.
(b) If Buyer is entitled In addition to indemnification pursuant to Section 2.08(d) or Section 2.08(e) with respect to and without limiting the determination of the Actual Net Working Capital or the Actual Supplemental Amount (a “Payment Adjustment Claim”), and if Buyer makes a written claim for indemnification within sixty (60) days from the Closing Date, thenforegoing, subject to Section 8.4, Seller agrees, from and after the limitations contained elsewhere Closing, to indemnify the Buyer Indemnified Parties from and against the entirety of any Damages that any of the Buyer Indemnified Parties may suffer resulting from, arising out of, relating to, in this Article 10the nature of, the Equity Participants shall severally in proportion to their Equity Proportions pay Buyer the amounts owed to Buyer pursuant to Sections 2.08(d) and 2.08(e).or caused by:
(c) Except with respect to (i) any Breach Liability or obligation of Seller that is not assumed hereunder (including, without limitation, any Liability connected with any Proceeding brought by Joe Huffine, Rodney Brown, or Liabxxxxx xx Xxllxx xxxx xxxxmes a Seller Basket ExceptionLiability of Buyer under any Bulk Sales Laws, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law); or
(ii) any Breach Liability of Seller for Employee Benefits, or the unpaid Taxes of any covenant of JJMA and/or the Equity Participants contained herein, Person (iiiincluding Seller) under United States Treasury Regulation ? 1.1502-6 (or any Breach of the representations and warranties made in Sections 3.11, 3.13 (only with respect to the portions of Section 3.13 pertaining to ERISA or the violation or non-compliance with any Lawsimilar Legal Requirement), 3.14(e)as a transferee or successor, 3.33, 3.35 and/or 3.37(e) (the “Designated Representations”)by contract, or (iv) any ESOP Related Claim, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $350,000 in the aggregate and $75,000 in each individual instance, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $350,000. With respect to any Breach of a Designated Representation, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $100,000 in the aggregate, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $100,000 and regardless of claim amount. With respect to (i) any Breach of a Seller Basket Exception, (ii) any Breach of any covenant of JJMA and/or the Equity Participants contained herein or (iii) any ESOP Related Claim, the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences from the first dollar and regardless of claim amount. With respect to any Payment Adjustment Claim, the Equity Participants shall be required to indemnify the Buyer from the first dollar and regardless of claim amountotherwise.
(d) Notwithstanding the foregoing, the aggregate liability of all Equity Participants under Section 10.02(a) shall be limited to (i) $3,000,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee prior to and including the first anniversary of the Closing Date (“Period 1 Buyer Claims”), (ii) $1,500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the first anniversary of the Closing Date and prior to an including the second anniversary of the Closing Date (“Period 2 Buyer Claims”) and (iii) $500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the second anniversary of the Closing Date and prior to and including the third anniversary of the Closing Date (“Period 3 Buyer Claims”); provided, however, that, subject to Section 10.06 hereof, in no event shall the aggregate liability of all Equity Participants under Section 10.02(a) exceed $3,500,000 regardless of when a claim for indemnification under Section 10.02(a) is made. Subject to Section 10.06 hereof, no Equity Participant shall have any liability for claims for indemnification made after the third anniversary of the Closing Date.
(e) Notwithstanding any provision herein to the contrary, the aggregate liability of Seller under Section 10.02(b) shall be limited to $500,000 and shall be satisfied solely by the delivery of cash from the Escrow Fund pursuant to the terms of the Escrow Agreement.
(f) Except with respect to Payment Adjustment Claims and as set forth in Section 11.17 hereof, the source of indemnification payments to satisfy claims for indemnification under this Section 10.02 shall be as follows: (i) with respect to Period 1 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amount, (ii) with respect to Period 2 Buyer Claims, Buyer shall be entitled to offset against and recover from SAR Termination Payments, the Diamant Non-Compete Payments, the Serro Non-Compete Payments and the Hanafourde Holdback Amount, and (iii) with respect to Period 3 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amounts. With respect to Payment Adjustment Claims, the SAR/Option Holders shall pay Buyer the full amount of such claims in cash by wire transfer within three (3) business days after the date on which the Actual Net Working Capital and the Actual Supplemental Amount are finally determined pursuant to Section 2.08(c), and the Buyer shall be entitled to recover from the Escrow Fund in accordance with the terms of the Escrow Agreement and Section 10.02(e) hereof.
(g) The aggregate amount owed by the Equity Participants to Buyer for any claims for indemnification under Section 10.02(a) shall be reduced by the aggregate amount above $150,000, less Buyer’s reasonable costs of collection paid to third parties, collected by Buyer following the Closing Date under JJMA’s Teaming Agreement, dated August 29, 2001, with Resource Consultants, Inc. with respect to NAVSUP Solicitation No. N00140-01-R-3678.
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Indemnification Provisions for the Benefit of Buyer. (a) If (i) JJMA or In the event Seller breaches any Equity Participant Breaches (A) any representation or warranty of JJMA and/or any Equity Participant contained in this Agreement (regardless of the Party making such representation or warranty) or (B) any covenant of JJMA and/or any Equity Participant its representations, warranties, and covenants contained in this Agreement, or and a Buyer Indemnified Party (iias defined below) any claim relating to Seller and/or the JJMA ESOP is made by any participant in the JJMA ESOP against JJMA or any of its Affiliates or any claim is made by the Seller Trustee for Adverse Consequences relating to claims made by any participants in the JJMA ESOP or any other third parties (an “ESOP Related Claim”), and if Buyer makes a timely written claim for indemnification within three against Seller, then Seller agrees to indemnify Buyer, its Affiliates and each of their agents and their respective officers, directors and employees (3) years from the Closing Date, then, subject to the limitations contained elsewhere in this Article 10collectively, the SAR/Option Holders shall severally"BUYER INDEMNIFIED PARTIES," and individually a "BUYER INDEMNIFIED PARTY") from and against the Adverse Consequences any Buyer Indemnified Party may suffer resulting from, in accordance with the following proportions: arising out of, relating to, or caused by such breach or event causing such breach.
(xb) P. Xxxxxx Xxxxxxx, 40%, (y) Xxxxxxx Xxxxx, 40%; and (z) Xxxxx Xxxxxxxxxx, 20%, Seller agrees to indemnify and hold harmless Buyer and its shareholders, directors, officers, employees, agents, successors and assigns (the “Buyer Indemnitees”) Indemnified Parties from and against any Adverse Consequences that any such Buyer Indemnitee Indemnified Parties may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to or caused by the Breach or ESOP Related Claim. Notwithstanding the foregoing, Buyer shall not be entitled to indemnification under this Section 10.02(a) for any consequential or punitive damages except with respect to claims brought by third parties against Buyer.
(b) If Buyer is entitled to indemnification pursuant to Section 2.08(d) or Section 2.08(e) with respect to the determination of the Actual Net Working Capital or the Actual Supplemental Amount (a “Payment Adjustment Claim”), and if Buyer makes a written claim for indemnification within sixty (60) days from the Closing Date, then, subject to the limitations contained elsewhere in this Article 10, the Equity Participants shall severally in proportion to their Equity Proportions pay Buyer the amounts owed to Buyer pursuant to Sections 2.08(d) and 2.08(e).
(c) Except with respect to reason of: (i) any Breach liability or obligation of a any Seller Basket Exception, Party that is not an Assumed Liability; (ii) any Breach the claims of any covenant of JJMA and/or the Equity Participants contained herein, broker or finder engaged or alleged to have been engaged by any Seller Party; (iii) any Breach failure on the part of Seller to convey to Buyer the representations right, title and warranties made interest that each Seller Party has in Sections 3.11, 3.13 (only with respect and to the portions of Section 3.13 pertaining to ERISA or the violation or non-compliance with any Law), 3.14(e), 3.33, 3.35 and/or 3.37(e) (the “Designated Representations”), or (iv) any ESOP Related Claim, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $350,000 in the aggregate and $75,000 in each individual instance, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $350,000. With respect to any Breach of a Designated Representation, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $100,000 in the aggregate, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $100,000 and regardless of claim amount. With respect to (i) any Breach of a Seller Basket Exception, (ii) any Breach of any covenant of JJMA and/or the Equity Participants contained herein or (iii) any ESOP Related Claim, the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences from the first dollar and regardless of claim amount. With respect to any Payment Adjustment Claim, the Equity Participants shall be required to indemnify the Buyer from the first dollar and regardless of claim amount.
(d) Notwithstanding the foregoing, the aggregate liability of all Equity Participants under Section 10.02(a) shall be limited to (i) $3,000,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee prior to and including the first anniversary of the Closing Date (“Period 1 Buyer Claims”), (ii) $1,500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the first anniversary of the Closing Date and prior to an including the second anniversary of the Closing Date (“Period 2 Buyer Claims”) and (iii) $500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the second anniversary of the Closing Date and prior to and including the third anniversary of the Closing Date (“Period 3 Buyer Claims”)Acquired Assets; provided, however, thatthat in the event Seller has not obtained any consent required in connection with any change of control provision or the assignment of any orders, subject agreements or other items by Closing, then at Buyer's request (in lieu of seeking indemnification in connection therewith) Seller shall delegate all responsibilities and assign all benefits to Section 10.06 hereofBuyer in connection with such orders, agreements or other items, unless such delegation or assignment is prohibited by the terms thereof; or (iv) the failure by any Seller Party to comply with any bulk sales, bulk transfer or any similar law of any jurisdiction that is applicable to some or all of the transactions contemplated by this Agreement. Seller further agrees to pay, and to indemnify and hold Buyer Indemnified Parties harmless from and against, any and all Taxes and other Adverse Consequences that Buyer Indemnified Parties or any of them (including any person or entity that becomes an Affiliate of Buyer by reason of the consummation of the Closing) may pay, incur or suffer resulting from, arising out of, relating to or incurred by reason of any of the following: (A) all federal, state and local (but not foreign) income Taxes of Seller and each domestic Canberra Affiliate for all taxable periods ending on or before the Closing Date, whether or not due and payable on or before the Closing Date; (B) all Taxes of any Seller Party other than those referred to in no event shall clause (A) to the aggregate liability extent the amount thereof exceeds the reserve therefor shown in the Final Statement of all Equity Participants under Section 10.02(aNet Assets; (C) exceed $3,500,000 regardless of when a claim for indemnification under Section 10.02(a) is made. Subject to Section 10.06 hereof, no Equity Participant shall have any liability for claims for indemnification made after the third anniversary Taxes that becomes a liability of the Closing Date.
Buyer under any Tax or bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor or transferee liability, by reason of Treasury Regulation Section 1.1502-6 or any analogous or similar provision of state, local or foreign law or regulation, or otherwise by operation of law; (eD) Notwithstanding all Taxes of whatever nature incurred by Seller or any provision herein to the contraryAffiliate of Seller, the aggregate liability of Seller under Section 10.02(b) shall be limited to $500,000 and shall be satisfied solely stock or interests in which is not acquired by the delivery of cash from the Escrow Fund Buyer pursuant to the terms of the Escrow this Agreement.
(f) Except with respect to Payment Adjustment Claims and as set forth in Section 11.17 hereof, the source of indemnification payments to satisfy claims for indemnification under this Section 10.02 shall be as follows: (i) with respect to Period 1 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amount, (ii) with respect to Period 2 Buyer Claims, Buyer shall be entitled to offset against and recover from SAR Termination Payments, the Diamant Non-Compete Payments, the Serro Non-Compete Payments and the Hanafourde Holdback Amount, and (iii) with respect any liability for Taxes incurred by any Canberra Affiliate by reason of any sale, exchange, assignment or transfer of any asset or interest on or prior to Period 3 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amounts. With respect to Payment Adjustment Claims, the SAR/Option Holders shall pay Buyer the full amount of such claims in cash by wire transfer within three (3) business days after the date on which the Actual Net Working Capital and the Actual Supplemental Amount are finally determined pursuant to Section 2.08(c), and the Buyer shall be entitled to recover from the Escrow Fund in accordance with the terms of the Escrow Agreement and Section 10.02(e) hereof.
(g) The aggregate amount owed by the Equity Participants to Buyer for any claims for indemnification under Section 10.02(a) shall be reduced by the aggregate amount above $150,000, less Buyer’s reasonable costs of collection paid to third parties, collected by Buyer following the Closing Date under JJMA’s Teaming other than in the Ordinary Course of Business (including, but not limited to, any sales or transfer contemplated by Section 3.1(c) of this Agreement, dated August 29, 2001, with Resource Consultants, Inc. with respect to NAVSUP Solicitation No. N00140-01-R-3678.); and (E) all Taxes incurred by Seller or any Affiliate of Seller by reason of the sale of the assets hereunder,
Appears in 1 contract
Indemnification Provisions for the Benefit of Buyer. In the event (a) If (i) JJMA --------------------------------------------------- Seller breaches any of its representations or any Equity Participant Breaches (A) any representation or warranty of JJMA and/or any Equity Participant warranties contained in this Agreement (regardless of the Party making such representation or warranty) or (B) any covenant of JJMA and/or any Equity Participant contained in this Agreement, or (ii) any claim relating to Seller and/or the JJMA ESOP is made by any participant in the JJMA ESOP against JJMA or any of its Affiliates or any claim is made by the Seller Trustee for Adverse Consequences relating to claims made by any participants in the JJMA ESOP or any other third parties (an “ESOP Related Claim”), and if provided that Buyer makes a written claim for indemnification against Seller within three the applicable survival period, (3b) years from the Closing Date, then, subject to the limitations Seller breaches any of its covenants contained elsewhere in this Agreement (including all of the covenants in Article 10IV to be performed by Seller and other than Tax matters, which are addressed in Article VI), provided that Buyer makes a written claim against Seller promptly, but in no event later than ten Business Days, after becoming aware of such breach, provided that no delay on the SAR/Option Holders shall severallypart of Buyer in notifying Seller will relieve Seller from its obligations under this clause (b) unless Seller is actually prejudiced thereby, or (c) Buyer sustains Damages as a direct result of any of the liabilities retained by Seller, as set forth in accordance with the following proportions: (x) P. Xxxxxx XxxxxxxSchedule 1.3(a)(i)(A), 40%then Seller agrees to indemnify, (y) Xxxxxxx Xxxxx, 40%; and (z) Xxxxx Xxxxxxxxxx, 20%, indemnify defend and hold harmless Buyer and its shareholders, directors, officers, employees, agents, successors and assigns (the “Buyer Indemnitees”) Xxxxxx Xxxx from and against any Adverse Consequences that any such all losses, liabilities, damages and expenses (including reasonable attorneys' fees and expenses) (collectively, "Damages") ------- Buyer Indemnitee may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to or Xxxxxx Xxxx suffers caused by the Breach or ESOP Related Claim. Notwithstanding the foregoingsuch event; provided, Buyer shall not be entitled to indemnification under this Section 10.02(a) for any consequential or punitive damages except with respect to claims brought by third parties against Buyer.
(b) If Buyer is entitled to indemnification pursuant to Section 2.08(d) or Section 2.08(e) with respect to the determination of the Actual Net Working Capital or the Actual Supplemental Amount (a “Payment Adjustment Claim”)however, and if Buyer makes a written claim for indemnification within sixty (60) days from the Closing Date, then, subject to the limitations contained elsewhere in this Article 10, the Equity Participants shall severally in proportion to their Equity Proportions pay Buyer the amounts owed to Buyer pursuant to Sections 2.08(d) and 2.08(e).
(c) Except with respect to (i) any Breach of a that Seller Basket Exception, (ii) any Breach of any covenant of JJMA and/or the Equity Participants contained herein, (iii) any Breach of the representations and warranties made in Sections 3.11, 3.13 (only with respect to the portions of Section 3.13 pertaining to ERISA or the violation or non-compliance with any Law), 3.14(e), 3.33, 3.35 and/or 3.37(e) (the “Designated Representations”), or (iv) any ESOP Related Claim, the SAR/Option Holders shall will not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(aand Xxxxxx Xxxx from and against such Damages in connection with matters described in clause (a) unless the Adverse Consequences with respect thereto exceed $350,000 in the aggregate and $75,000 in each individual instance, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $350,000. With respect to any Breach of a Designated Representation, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $100,000 in the aggregate, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $100,000 and regardless of claim amount. With respect to above (i) any Breach until Buyer and Xxxxxx Xxxx have suffered aggregate Damages, by reason of a all such breaches, in excess of $3,000,000 (after which point Seller Basket Exception, will be obligated only to indemnify Buyer and Xxxxxx Xxxx from and against aggregate Damages in excess of $3,000,000) and (ii) any Breach of any covenant of JJMA and/or to the Equity Participants contained herein or (iii) any ESOP Related Claim, the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences from the first dollar and regardless of claim amount. With respect to any Payment Adjustment Claim, the Equity Participants shall be required to indemnify the Buyer from the first dollar and regardless of claim amount.
(d) Notwithstanding the foregoing, extent the aggregate liability Damages Buyer and Xxxxxx Xxxx have suffered by reason of all Equity Participants under Section 10.02(a) shall be limited to (i) of such breaches exceeds $3,000,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee prior to and including the first anniversary of the Closing Date (“Period 1 Buyer Claims”), (ii) $1,500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the first anniversary of the Closing Date and prior to an including the second anniversary of the Closing Date (“Period 2 Buyer Claims”) and (iii) $500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the second anniversary of the Closing Date and prior to and including the third anniversary of the Closing Date (“Period 3 Buyer Claims”)15,000,000; provided, however, that, subject that this Cap on indemnification for Damages shall not apply to Section 10.06 hereof, in no event shall the aggregate liability of all Equity Participants under Section 10.02(a) exceed $3,500,000 regardless of when a any claim for indemnification under Section 10.02(a) common law fraud brought by Buyer against Seller that is made. Subject based on any intentional misrepresentation or omission of facts within Seller's Knowledge on or prior to Section 10.06 hereof, no Equity Participant shall have any liability for claims for indemnification made after the third anniversary of the Closing Date.
(e) Notwithstanding ; and further provided that, in the event Seller prevails against any provision herein to the contrary, the aggregate liability of Seller under Section 10.02(b) shall be limited to $500,000 and shall be satisfied solely by the delivery of cash from the Escrow Fund pursuant to the terms of the Escrow Agreement.
(f) Except with respect to Payment Adjustment Claims and as set forth in Section 11.17 hereof, the source of indemnification payments to satisfy claims for indemnification under this Section 10.02 shall be as follows: (i) with respect to Period 1 Buyer Claimssuch common law fraud claim, Buyer shall be entitled to offset indemnify Seller for its attorney's fees, costs and other expenses incurred in connection with defending against such claim. Notwithstanding the foregoing, if the amount of any claim or series of related claims for Damages suffered by Buyer and recover from Xxxxxx Xxxx in connection with the SAR Termination Payments and matters described in clause (a) above does not exceed $10,000, then the Hanafourde Holdback Amount, (ii) with respect to Period 2 Buyer Claims, Buyer shall be entitled to offset against and recover from SAR Termination Payments, the Diamant Non-Compete Payments, the Serro Non-Compete Payments and the Hanafourde Holdback Amount, and (iii) with respect to Period 3 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amounts. With respect to Payment Adjustment Claims, the SAR/Option Holders shall pay Buyer the full amount of such claim or series of claims in cash by wire transfer within three (3) business days after the date on which the Actual Net Working Capital and the Actual Supplemental Amount are finally determined pursuant to Section 2.08(c), and the Buyer shall will be entitled to recover excluded from the Escrow Fund in accordance with the terms calculation of the Escrow Agreement and Section 10.02(e) hereof.
(g) The aggregate amount owed by the Equity Participants to Buyer for any claims for indemnification under Section 10.02(a) shall be reduced by the aggregate amount above $150,000, less Buyer’s reasonable costs of collection paid Damages for purposes of this Section 8.2; provided that this sentence shall not apply to third parties, collected by Buyer following the Closing Date under JJMA’s Teaming Agreement, dated August 29, 2001, with Resource Consultants, Inc. with respect claims resulting directly from a breach of a representation or warranty that is subject to NAVSUP Solicitation No. N00140-01-R-3678a materiality qualifier.
Appears in 1 contract
Indemnification Provisions for the Benefit of Buyer. (a) If (i) JJMA or any Equity Participant Breaches (A) any representation or warranty of JJMA and/or any Equity Participant contained in this Agreement (regardless of the Party making such representation or warranty) or (B) any covenant of JJMA and/or any Equity Participant contained in this Agreement, or (ii) any claim relating to Seller and/or the JJMA ESOP is made by any participant in the JJMA ESOP against JJMA or any of its Affiliates or any claim is made by the Seller Trustee for Adverse Consequences relating to claims made by any participants in the JJMA ESOP or Without limiting any other third parties (an “ESOP Related Claim”)rights or remedies available to Buyer, and if Buyer makes a written claim for indemnification within three (3) years from the Closing DateSeller shall indemnify, then, subject to the limitations contained elsewhere in this Article 10, the SAR/Option Holders shall severally, in accordance with the following proportions: (x) P. Xxxxxx Xxxxxxx, 40%, (y) Xxxxxxx Xxxxx, 40%; and (z) Xxxxx Xxxxxxxxxx, 20%, indemnify defend and hold harmless Buyer Buyer, GRI and its shareholderstheir respective affiliates and the respective officers, directors, officers, employees, agents, successors employees and assigns (the “Buyer Indemnitees”) from and against any Adverse Consequences that any such Buyer Indemnitee may suffer through and after the date shareholders of the claim for indemnification resulting foregoing from, against and with respect to any claim, liability, obligation, loss, damage, assessment, judgment, cost and expense (including reasonable attorney's and accountant's fees and costs and expenses reasonably incurred in investigating, preparing, defending against or prosecuting any litigation or claim, action, suit, proceeding or demand), of any kind or character (and without giving effect to any tax benefit to the indemnified party) (individually a "Loss" and collectively "Losses"), arising out ofof or in any manner incident, relating to or caused by the Breach or ESOP Related Claim. Notwithstanding the foregoing, Buyer shall not be entitled to indemnification under this Section 10.02(a) for any consequential or punitive damages except with respect to claims brought by third parties against Buyer.
(b) If Buyer is entitled to indemnification pursuant to Section 2.08(d) or Section 2.08(e) with respect to the determination of the Actual Net Working Capital or the Actual Supplemental Amount (a “Payment Adjustment Claim”), and if Buyer makes a written claim for indemnification within sixty (60) days from the Closing Date, then, subject to the limitations contained elsewhere in this Article 10, the Equity Participants shall severally in proportion to their Equity Proportions pay Buyer the amounts owed to Buyer pursuant to Sections 2.08(d) and 2.08(e).
(c) Except with respect attributable to (i) any Breach inaccuracy in any representation or breach of a any warranty of Seller Basket Exceptioncontained in this Agreement or in any certificate, instrument of transfer or other document or agreement executed by Seller or GRI in connection with this Agreement or otherwise made or given in connection with this Agreement, (ii) any Breach of failure by GRI or Seller to perform or observe, or to have performed or observed, in full, any covenant or agreement to be performed or observed by either of JJMA and/or the Equity Participants contained hereinthem under this Agreement or under any certificates or other documents executed by Seller or GRI in connection with this Agreement, (iii) reliance by Buyer on any Breach books or records of GRI or reliance by Buyer on any information or certificate furnished to Buyer pursuant to this Agreement by or on behalf of Seller, GRI or any of GRI's officers, (iv) the Power Products Division, SNAPX, xx any other assets, divisions, subsidiaries, joint ventures, investments, product lines or business of GRI or its Subsidiaries which has been sold, discontinued, liquidated or otherwise disposed of prior to the Closing, including, without limitation, Other Taxes or Income Tax on the actual or imputed direct earnings of the representations and warranties made in Sections 3.11Power Products Division or any other such assets, 3.13 divisions, subsidiaries, joint ventures, investments, product lines or investments, (only with respect v) GRI's handling, storage, use, disposal, delivery for disposal or generation of hazardous or toxic substances, wastes of any kind or similar materials at any time prior to the portions Closing, (vi) the contamination of Section 3.13 pertaining the Property by a release, prior to ERISA the Closing Date, or the violation contamination of other real estate caused by a release at the Property prior to the Closing Date with or non-compliance by pollutants, wastes, or any other substances at any time prior to the Closing, (vii) the contamination of any real property previously or currently leased or operated by GRI or its Subsidiaries with or by pollutants, wastes or any other substances from activities conducted by Seller, GRI or its Subsidiaries, prior to the Closing Date, (viii) any agreements, contracts, negotiations or other dealings by Seller or GRI with any Law)person concerning the sale of the capital stock or business of GRI or its Subsidiaries, 3.14(e)(ix) any guaranty to which GRI or its Subsidiaries is a party and which guarantees amounts payable by, 3.33or obligations of, 3.35 and/or 3.37(e) (the “Designated Representations”)any person or entity other than GRI, or (ivx) any ESOP Related Claim, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $350,000 in the aggregate and $75,000 in each individual instance, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $350,000. With respect to any Breach of a Designated Representation, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $100,000 in the aggregate, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $100,000 and regardless of claim amount. With respect to (i) any Breach of a Seller Basket Exception, (ii) any Breach of any covenant of JJMA and/or the Equity Participants contained herein or (iii) any ESOP Related Claim, the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences from the first dollar and regardless of claim amount. With respect to any Payment Adjustment Claim, the Equity Participants shall be required to indemnify the Buyer from the first dollar and regardless of claim amount.
(d) Notwithstanding the foregoing, the aggregate liability of all Equity Participants under Section 10.02(a) shall be limited to (i) $3,000,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee prior to and including the first anniversary of the Closing Date (“Period 1 Buyer Claims”), (ii) $1,500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the first anniversary of the Closing Date and prior to an including the second anniversary of the Closing Date (“Period 2 Buyer Claims”) and (iii) $500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the second anniversary of the Closing Date and prior to and including the third anniversary of the Closing Date (“Period 3 Buyer Claims”); provided, however, that, subject to Section 10.06 hereof, in no event shall the aggregate liability of all Equity Participants under Section 10.02(a) exceed $3,500,000 regardless of when a claim for indemnification under Section 10.02(a) is made. Subject to Section 10.06 hereof, no Equity Participant shall have any liability for claims for indemnification made after the third anniversary of the Closing Dateor litigation listed on Exhibit 3.
(e) Notwithstanding any provision herein to the contrary, the aggregate liability of Seller under Section 10.02(b) shall be limited to $500,000 and shall be satisfied solely by the delivery of cash from the Escrow Fund pursuant to the terms of the Escrow Agreement.
(f) Except with respect to Payment Adjustment Claims and as set forth in Section 11.17 hereof, the source of indemnification payments to satisfy claims for indemnification under this Section 10.02 shall be as follows: (i) with respect to Period 1 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amount, (ii) with respect to Period 2 Buyer Claims, Buyer shall be entitled to offset against and recover from SAR Termination Payments, the Diamant Non-Compete Payments, the Serro Non-Compete Payments and the Hanafourde Holdback Amount, and (iii) with respect to Period 3 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amounts. With respect to Payment Adjustment Claims, the SAR/Option Holders shall pay Buyer the full amount of such claims in cash by wire transfer within three (3) business days after the date on which the Actual Net Working Capital and the Actual Supplemental Amount are finally determined pursuant to Section 2.08(c), and the Buyer shall be entitled to recover from the Escrow Fund in accordance with the terms of the Escrow Agreement and Section 10.02(e) hereof.
(g) The aggregate amount owed by the Equity Participants to Buyer for any claims for indemnification under Section 10.02(a) shall be reduced by the aggregate amount above $150,000, less Buyer’s reasonable costs of collection paid to third parties, collected by Buyer following the Closing Date under JJMA’s Teaming Agreement, dated August 29, 2001, with Resource Consultants, Inc. with respect to NAVSUP Solicitation No. N00140-01-R-3678.
Appears in 1 contract
Samples: Stock Purchase Agreement (MSX International Business Services Inc)
Indemnification Provisions for the Benefit of Buyer. (a) If (i) JJMA In the event Seller or Trustee breaches any Equity Participant Breaches (A) any representation or warranty of JJMA and/or any Equity Participant contained in this Agreement (regardless of the Party making such representation or warranty) or (B) any covenant of JJMA and/or any Equity Participant its representations, warranties, and covenants contained in this Agreement, or and a Buyer Indemnified Party (iias defined below) any claim relating to Seller and/or the JJMA ESOP is made by any participant in the JJMA ESOP against JJMA or any of its Affiliates or any claim is made by the Seller Trustee for Adverse Consequences relating to claims made by any participants in the JJMA ESOP or any other third parties (an “ESOP Related Claim”), and if Buyer makes a written claim for indemnification within three (3) years from the Closing Date, against any of Seller or Trustee then, subject each of Seller and Trustee agree jointly and severally to the limitations contained elsewhere in this Article 10indemnify Buyer, its members, Affiliates and agents and their respective officers, directors and employees (collectively, the SAR/Option Holders shall severally, in accordance with the following proportions: (x) P. Xxxxxx Xxxxxxx, 40%, (y) Xxxxxxx Xxxxx, 40%; "Buyer Indemnified Parties," and (z) Xxxxx Xxxxxxxxxx, 20%, indemnify and hold harmless individually a "Buyer and its shareholders, directors, officers, employees, agents, successors and assigns (the “Buyer Indemnitees”Indemnified Party") from and against the Adverse Consequences any Buyer Indemnified Party may suffer resulting from, arising out of, relating to, or caused by such breach.
(b) Each of Seller and Trustee agrees, jointly and severally, to indemnify Buyer Indemnified Parties from and against the entirety of any Adverse Consequences that any such Buyer Indemnitee Indemnified Party may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to or caused by reason of: (i) any liability or obligation of Seller or any Affiliate of Seller which is not an Assumed Liability (including any liability of Seller for Taxes that becomes a liability of Buyer under any Tax or bulk transfer law of any jurisdictions, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law); (ii) the Breach claims of any broker or ESOP Related Claim. Notwithstanding finder engaged or alleged to have been engaged by Seller or Trustee or any Affiliate of either; (iii) the foregoingBioDiscovery matter described on Schedule 3.16; or (iv) any failure on the part of Seller and Trustee to convey to Buyer the right, Buyer shall not be entitled to indemnification under this Section 10.02(a) for title and interest that Seller, Trustee or any consequential or punitive damages except with respect to claims brought by third parties against Buyer.
(b) If Buyer is entitled to indemnification pursuant to Section 2.08(d) or Section 2.08(e) with respect Affiliate of Seller has in and to the determination of the Actual Net Working Capital or the Actual Supplemental Amount (a “Payment Adjustment Claim”), and if Buyer makes a written claim for indemnification within sixty (60) days from the Closing Date, then, subject to the limitations contained elsewhere in this Article 10, the Equity Participants shall severally in proportion to their Equity Proportions pay Buyer the amounts owed to Buyer pursuant to Sections 2.08(d) and 2.08(e)Acquired Assets.
(c) Except All of the covenants, representations, warranties and indemnification obligations of Seller and/or Trustee: (i) other than under Section 3.9, Section 3.20, Section 3.21, Section 5.2, Section 5.3(b)(iii), Section 5.3(b)(iv) and Section 8, shall survive the Closing and continue in full force and effect only until the first anniversary of the Closing Date; (ii) contained in Section 3.9, Section 3.20 and Section 3.21 shall survive the Closing and continue in full force and effect for so long as any Authority may bring a claim with respect to (i) any Breach of a Seller Basket Exception, (ii) any Breach of any covenant of JJMA and/or the Equity Participants contained herein, such matters; and (iii) contained in Section 5.2, Section 5.3(b)(iii), Section 5.3(b)(iv) or Section 8 shall survive the Closing for the periods specified therein or, if no periods are specified therein, for the applicable statute of limitations period. No claim for indemnification under this Section 5.3 shall be brought by any Breach of Buyer Indemnified Party after the representations and warranties made time periods specified in Sections 3.11the immediately preceding sentence, 3.13 (only provided that the foregoing time limitations shall not limit Buyer's indemnification rights with respect to the portions of Section 3.13 pertaining to ERISA or the violation or non-compliance with any Law), 3.14(e), 3.33, 3.35 and/or 3.37(e) (the “Designated Representations”), or (iv) any ESOP Related Claim, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $350,000 in the aggregate and $75,000 in each individual instance, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $350,000. With respect to any Breach of a Designated Representation, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $100,000 in the aggregate, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $100,000 and regardless of claim amount. With respect to (i) any Breach of a Seller Basket Exception, (ii) any Breach of any covenant of JJMA and/or the Equity Participants contained herein or (iii) any ESOP Related Claim, the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences from the first dollar and regardless of claim amount. With respect to any Payment Adjustment Claim, the Equity Participants shall be required to indemnify the Buyer from the first dollar and regardless of claim amountproperly made within such time limitations.
(d) Notwithstanding the foregoingprovisions of this Section 5.3, the aggregate liability of all Equity Participants under Section 10.02(a) shall be limited to (i) $3,000,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee prior to and including the first anniversary of the Closing Date (“Period 1 Buyer Claims”), (ii) $1,500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the first anniversary of the Closing Date and prior to an including the second anniversary of the Closing Date (“Period 2 Buyer Claims”) and (iii) $500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the second anniversary of the Closing Date and prior to and including the third anniversary of the Closing Date (“Period 3 Buyer Claims”); provided, however, that, subject to Section 10.06 hereof, in no event shall the aggregate liability of all Equity Participants under Section 10.02(a) exceed $3,500,000 regardless of when a claim for indemnification under Section 10.02(a) is made. Subject to Section 10.06 hereof, no Equity Participant neither Seller nor Trustee shall have any liability for claims for indemnification made after under this Section 5.3 unless and until the third anniversary amount of the Closing Dateaggregate indemnification obligations exceeds Five Hundred Thousand Dollars ($500,000) (the "Threshold"), whereupon Seller and Trustee shall jointly and severally indemnify, defend, protect and hold harmless the Buyer Indemnified Parties for the amount of all Adverse Consequences under this Section 5.3 solely to the extent that such Adverse Consequences exceed the Threshold, and (ii) the aggregate amount of the Seller and Trustee's liability under this Section 5.3 shall not exceed the amount of twenty percent (20%) of the total Purchase Price. The immediately preceding sentence shall not apply to any matter covered by Section 5.3(b)(iii) or Section 5.3(b)(iv).
(e) Notwithstanding any provision herein to the contrary, the aggregate liability The obligations of Seller and Trustee under this Section 10.02(b) 5.3 and Section 2.4 shall be limited to $500,000 and shall be satisfied solely guaranteed by the delivery of cash from the Escrow Fund pursuant to GSI Lumonics Inc., a New Brunswick corporation, in accordance with the terms and conditions of the Escrow AgreementParent Guarantee.
(f) Except with respect to Payment Adjustment Claims The obligations of Seller and as set forth in Section 11.17 hereof, the source of indemnification payments to satisfy claims for indemnification Trustee under this Section 10.02 shall 5.3 and the obligations of Parent under the Parent Guarantee may be as follows: paid at Seller's option in either (i) with respect to Period 1 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amount, cash or (ii) with respect to Period 2 a combination of one-third (1/3) cash and two-thirds (2/3) Buyer Claims, Buyer shall be entitled to offset against and recover from SAR Termination Payments, Common Stock (valued at the Diamant Non-Compete Payments, the Serro Non-Compete Payments and the Hanafourde Holdback Amount, and (iii) with respect to Period 3 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amounts. With respect to Payment Adjustment Claims, the SAR/Option Holders shall pay Buyer the full amount of such claims Average Closing Price but in cash by wire transfer within three (3) business days after the date on which the Actual Net Working Capital and the Actual Supplemental Amount are finally determined pursuant to Section 2.08(cno event valued at less than $17.50 per share), and the Buyer shall be entitled to recover from the Escrow Fund in accordance with the terms of the Escrow Agreement and Section 10.02(e) hereof.
(g) The aggregate amount owed by the Equity Participants to Buyer for any claims for indemnification under Section 10.02(a) shall be reduced by the aggregate amount above $150,000, less Buyer’s reasonable costs of collection paid to third parties, collected by Buyer following the Closing Date under JJMA’s Teaming Agreement, dated August 29, 2001, with Resource Consultants, Inc. with respect to NAVSUP Solicitation No. N00140-01-R-3678.
Appears in 1 contract
Indemnification Provisions for the Benefit of Buyer. Subject to Section 8.4 hereof:
(a) If To the extent that any Seller employee listed in Schedule 6.18 diverts any accounts which are part of the Purchased Book of Business, Buyer shall be indemnified by Sellers and the Shareholders (which obligation shall be joint and several) as follows:
(i) JJMA If such Seller employee refuses to sign Buyer's standard employment agreement and Buyer refuses to employ such Seller employee, Buyer shall be indemnified for an amount equal to 2.0 times the aggregate, annualized Core Revenue on such diverted accounts, provided that such diversion occurred on or before the one (1) year anniversary of the Effective Date;
(ii) If such Seller employee signs Buyer's standard employment agreement but leaves Buyer's employment for any Equity Participant Breaches reason during the fifty-nine (A59) day-period following the Effective Date, Buyer shall be indemnified for an amount equal to 1.0 times the aggregate, annualized Core Revenue on such accounts, provided that such diversion occurred on or before the one (1) year anniversary of the Effective Date; or
(iii) If such Seller employee signs Buyer's standard employment agreement but leaves Buyer's employment for any representation reason on or warranty of JJMA and/or after the sixtieth (60th) day following the Effective Date, Buyer shall not be entitled to any Equity Participant contained in this Agreement (indemnification for any such diverted accounts, regardless of when such diversion occurred; provided, however, that in the Party making such representation or warrantycase of clauses (i) or (B) ii), prior to asserting an indemnification claim, Buyer shall provide Sellers, Shareholder and Xxxxxx with written notice of any covenant such diversion of JJMA and/or any Equity Participant contained in this Agreementbusiness (or anticipated diversion of business), setting forth the name of the former Seller employee, the accounts diverted (or (ii) any claim relating anticipated to Seller and/or be diverted), the JJMA ESOP is made by any participant in the JJMA ESOP against JJMA or any approximate dollar amount of its Affiliates or any claim is made annual Core Revenue represented by the Seller Trustee for Adverse Consequences relating to claims made by any participants in the JJMA ESOP diverted business (or any other third parties (an “ESOP Related Claim”anticipated diversion of business), and if Buyer makes reasonable supporting documentation. Sellers, Shareholder and Xxxxxx shall have right, for thirty (30) days after Buyer's delivery of such written notice, to request additional supporting documentation and reasonable access during normal business hours to Buyer's Records with respect to the purportedly diverted business, and to attempt to mitigate Buyer's losses (or anticipated losses) as a written claim result of such diversion (or anticipated diversion) including, but not limited to, by directly contacting the former Seller employee for indemnification within three the purpose of restoring (3or preventing) years such diverted business (and corresponding Core Revenue lost from the Closing Date, then, subject date of such diversion). Buyer shall be entitled to indemnification from Sellers (but only to the limitations contained elsewhere extent Sellers, Shareholder or Xxxxxx is unable to prevent the diversion described above) under this Section 8.2(a) for the applicable multiple times the difference between the aggregate amount of diverted business and the amount of Core Revenue that Sellers, Shareholder and Xxxxxx were successful in this Article 10restoring to Buyer as a result of such diversion.
(b) Sellers, the SAR/Option Holders shall Shareholder and Xxxxxx each agree, jointly and severally, in accordance with the following proportions: (x) P. Xxxxxx Xxxxxxx, 40%, (y) Xxxxxxx Xxxxx, 40%; and (z) Xxxxx Xxxxxxxxxx, 20%, to indemnify and hold harmless Buyer and its shareholdersofficers, directors, officersand affiliates (collectively, employees, agents, successors and assigns (the “"Buyer Indemnitees”Indemnified Parties") harmless from and against any Adverse Consequences (as defined below) that any of such Buyer Indemnitee parties may suffer through and after the date of the claim for indemnification or incur resulting from, arising out of, relating to to, or caused by the Breach or ESOP Related Claim. Notwithstanding the foregoing, Buyer shall not be entitled to indemnification under this Section 10.02(a) for any consequential or punitive damages except with respect to claims brought by third parties against Buyer.
(b) If Buyer is entitled to indemnification pursuant to Section 2.08(d) or Section 2.08(e) with respect to the determination of the Actual Net Working Capital or the Actual Supplemental Amount (a “Payment Adjustment Claim”), and if Buyer makes a written claim for indemnification within sixty (60) days from the Closing Date, then, subject to the limitations contained elsewhere in this Article 10, the Equity Participants shall severally in proportion to their Equity Proportions pay Buyer the amounts owed to Buyer pursuant to Sections 2.08(d) and 2.08(e).
(c) Except with respect to (i) any Breach of a Seller Basket Exceptionany Seller's, Shareholder’s or Xxxxxx'x representations, warranties, obligations or covenants contained herein, or (ii) the operation of the Business or ownership of the Acquired Assets by any Breach Seller prior to the Effective Date, including, without limitation, (A) any Proceedings based on conduct of any covenant of JJMA and/or Seller, Shareholder or Xxxxxx occurring before the Equity Participants contained herein, Effective Date or (iiiB) any Breach Liability of the representations and warranties made in Sections 3.11, 3.13 (only with respect to the portions any Seller that is not an Assumed Liability. For purposes of Section 3.13 pertaining to ERISA or the violation or non-compliance with any Law), 3.14(e), 3.33, 3.35 and/or 3.37(e) (the “Designated Representations”), or (iv) any ESOP Related Claimthis Article 8, the SAR/Option Holders shall not have term "Adverse Consequences" means all out-of-pocket payments, expenses or losses resulting from any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $350,000 charges, complaints, actions, suits, proceedings, hearings, investigations, claims, demands, judgments, orders, decrees, stipulations, injunctions, damages, dues, penalties, fines, costs, amounts paid in the aggregate and $75,000 in each individual instancesettlement, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $350,000. With respect to any Breach of a Designated RepresentationLiabilities, the SAR/Option Holders shall not have any obligation to indemnify any Buyer Indemnitee under Section 10.02(a) unless the Adverse Consequences with respect thereto exceed $100,000 in the aggregateobligations, in which case the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences exceeding $100,000 and regardless of claim amount. With respect to (i) any Breach of a Seller Basket Exceptiontaxes, (ii) any Breach of any covenant of JJMA and/or the Equity Participants contained herein or (iii) any ESOP Related Claim, the SAR/Option Holders shall be required to indemnify the Buyer Indemnitees for all Adverse Consequences from the first dollar and regardless of claim amount. With respect to any Payment Adjustment Claim, the Equity Participants shall be required to indemnify the Buyer from the first dollar and regardless of claim amount.
(d) Notwithstanding the foregoing, the aggregate liability of all Equity Participants under Section 10.02(a) shall be limited to (i) $3,000,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee prior to and including the first anniversary of the Closing Date (“Period 1 Buyer Claims”), (ii) $1,500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the first anniversary of the Closing Date and prior to an including the second anniversary of the Closing Date (“Period 2 Buyer Claims”) and (iii) $500,000 for claims for indemnification under Section 10.02(a) made by a Buyer Indemnitee after the second anniversary of the Closing Date and prior to and including the third anniversary of the Closing Date (“Period 3 Buyer Claims”); provided, however, that, subject to Section 10.06 hereof, in no event shall the aggregate liability of all Equity Participants under Section 10.02(a) exceed $3,500,000 regardless of when a claim for indemnification under Section 10.02(a) is made. Subject to Section 10.06 hereof, no Equity Participant shall have any liability for claims for indemnification made after the third anniversary of the Closing Date.
(e) Notwithstanding any provision herein to the contrary, the aggregate liability of Seller under Section 10.02(b) shall be limited to $500,000 and shall be satisfied solely by the delivery of cash from the Escrow Fund pursuant to the terms of the Escrow Agreement.
(f) Except with respect to Payment Adjustment Claims and as set forth in Section 11.17 hereof, the source of indemnification payments to satisfy claims for indemnification under this Section 10.02 shall be as follows: (i) with respect to Period 1 Buyer Claims, Buyer shall be entitled to offset against and recover from the SAR Termination Payments and the Hanafourde Holdback Amount, (ii) with respect to Period 2 Buyer Claims, Buyer shall be entitled to offset against and recover from SAR Termination Payments, the Diamant Non-Compete Payments, the Serro Non-Compete Payments and the Hanafourde Holdback Amountliens, and (iii) with respect to Period 3 Buyer Claimsfees, Buyer shall be entitled to offset against including all reasonable attorneys' fees and recover from the SAR Termination Payments and the Hanafourde Holdback Amounts. With respect to Payment Adjustment Claims, the SAR/Option Holders shall pay Buyer the full amount of such claims in cash by wire transfer within three (3) business days after the date on which the Actual Net Working Capital and the Actual Supplemental Amount are finally determined pursuant to Section 2.08(c), and the Buyer shall be entitled to recover from the Escrow Fund in accordance with the terms of the Escrow Agreement and Section 10.02(e) hereofcourt costs.
(g) The aggregate amount owed by the Equity Participants to Buyer for any claims for indemnification under Section 10.02(a) shall be reduced by the aggregate amount above $150,000, less Buyer’s reasonable costs of collection paid to third parties, collected by Buyer following the Closing Date under JJMA’s Teaming Agreement, dated August 29, 2001, with Resource Consultants, Inc. with respect to NAVSUP Solicitation No. N00140-01-R-3678.
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