Indemnity by Stockholders. Provided that the Merger contemplated by this Agreement is closed, the Stockholders hereby agree, severally and not jointly, to indemnify, defend and hold harmless Newco and BBLU and their respective Affiliates, shareholders, partners, Stockholders, directors, officers, employees and other agents and representatives from and against all liabilities, losses, costs or damages whatsoever (including expenses and reasonable fees of legal counsel) (“Claims”) arising out of or relating to Claims made prior to the Survival Date or the Extended Survival Date, if applicable, in the event that it is determined that such Claims arise out of or from or are based upon (i) the inaccuracy in any material respect of any representation or warranty contained in Section 4 made by the Stockholders, (ii) the non-performance by the Stockholders in any material respect of any covenant, agreement or obligation to be performed by the Stockholders under this Agreement; (iii) the assessment of any material federal, state local or other tax liabilities due and payable by the Company for all periods through the Closing Date.
Indemnity by Stockholders. Provided that the Merger contemplated by this Agreement is closed, the Stockholders hereby agree, severally and not jointly, to indemnify, defend and hold harmless the Buyer and BBLU and their respective Affiliates, stockholders, partners, directors, officers, employees and other agents and representatives from and against all liabilities, losses, costs or damages whatsoever (including expenses and reasonable fees of legal counsel) (“Claims”) arising out of or relating to Claims made prior to the Survival Date or the Extended Survival Date, if applicable, in the event that it is determined that such Claims arise out of or from or are based upon (i) the inaccuracy in any material respect of any representation or warranty contained (in the case of the IPS Stockholders) in Section 3 or (in the case of the GXXX Stockholders) in Section 4, (ii) the non-performance by the Stockholders in any material respect of any covenant, agreement or obligation to be performed by the Stockholders under this Agreement; provided, however, that IPS Stockholders shall not be responsible for any non-performance by GXXX Stockholders and GXXX Stockholders shall not be responsible for any non-performance by IPS Stockholders; or (iii) the assessment of any material federal, state local or other tax liabilities due and payable by IPS (as to the IPS Stockholders) or GXXX (as to the GXXX Stockholders) for all periods through December 31, 2012.
Indemnity by Stockholders. Provided that the Merger contemplated by this Agreement is closed, the Stockholders hereby agree, severally and not jointly, to indemnify, defend and hold harmless the Buyer and BBLU and their respective Affiliates, shareholders, partners, members, directors, officers, employees and other agents and representatives from and against all liabilities, losses, costs or damages whatsoever (including expenses and reasonable fees of legal counsel) (“Claims”) arising out of or relating to Claims made prior to the Survival Date or the Extended Survival Date, if applicable, in the event that it is determined that such Claims arise out of or from or are based upon (i) the inaccuracy in any material respect of any representation or warranty contained in Section 4 made by the Stockholders, (ii) the non-performance by the Stockholders in any material respect of any covenant, agreement or obligation to be performed by the Stockholders under this Agreement; (iii) the assessment of any federal, state local or other tax liabilities due and payable by the Corporation for all periods through December 31, 2010 or (iv) the assessment of any federal, state or local fines resulting from the shipment of any product of the Corporation to and including through the Closing Date.
Indemnity by Stockholders. From and after the Closing Date, and ------------------------- subject to the other provisions of this Section 6, each Stockholder (on or after the Closing Date) shall indemnify and hold harmless Buyer against, and reimburse for, any actual liability, damage, loss, obligation, demand, judgment, fine, penalty, cost or expense, including reasonable attorneys' fees and expenses, and the costs of investigation incurred in defending against or settling such liability, damage, loss, cost or expense or claim therefor and any amounts paid in settlement thereof) imposed on or reasonably incurred by Buyer solely as a result of any actual breach of any representation or warranty, on the part of such Stockholder (collectively the "Buyer Damages") under Section V of this ------------- Agreement. Buyer Damages in each case shall be net of the amount of any insurance proceeds, indemnity and contribution actually recovered by Buyer. "Buyer Damages" as used herein is not limited to matters asserted by third parties, but includes Damages incurred or sustained by Buyer in the absence of claims by a third party; provided, however, that the indemnification agreement contained in this Section VI shall not apply to amounts paid in settlement of any liability, damage, loss, obligation, demand, judgment, fine, penalty, costs or expense if such settlement is effected without the consent of the Stockholder against whom indemnification is sought (which consent shall not be unreasonably withheld) and, in no event, shall a Stockholder be required to indemnify the Buyer (i) to the extent that the Buyer Damages arise out of any breach of any representation, warranty, covenant or agreement on the part of the Buyer under this Agreement or (ii) until a court renders a final, unappealed decision that such Stockholder has breached such representation. No Stockholder shall be required to make any indemnification payments under this Section 6 in respect to any claims arising hereunder until, and except to the extent that the cumulative amount of the Buyer Damages actually incurred by the Buyer as a result of all claims actually exceeds the sum of $100,000 (the "Claim Threshold") at which --------------- time the Buyer may make claims against the Stockholder for aggregate damages including and exceeding the Claim Threshold. Buyer shall be entitled to offset Buyer Damages under this Section 6.2 against the Merger Consideration payable under the Notes.
Indemnity by Stockholders. The Stockholders and the Rights Holders severally, and not jointly, agree, subject to the limitations set forth in Section 8.3, to indemnify, defend and hold Xxxxxx and the Surviving Corporation and their subsidiaries, affiliates, respective officers, directors, stockholders, representatives, employees, and their successors and assigns (the “Xxxxxx Indemnified Persons”), harmless from, against and with respect to each and every claim, liability, obligation, loss, damage, deficiency, assessment, encumbrance, judgment, cost, expense (including, without limitation, attorneys’ fees and costs and other expenses incurred by any Xxxxxx Indemnified Person in investigating, preparing, defending against or prosecuting any litigation or claim, action, suit, proceeding or demand), of any kind or character (collectively, “Losses”), arising out of or resulting from any breach of any representation, warranty, covenant, agreement or certification made by or on behalf of FPIG or FPIC in any Acquisition Document. For all purposes of determining the amount of any Losses under this Article, any such representation or warranty shall be interpreted without giving effect to the word “materially” or “material,” individually or as it appears in the phrase “Material Adverse Effect” (or any other qualifications or exceptions based on such terms).
Indemnity by Stockholders. (a) Subject to (S)9.2(b), (S) 9.2 (c) and (S) 9.2(d) hereof, the Stockholders hereby jointly and severally agree to severally indemnify, defend and hold harmless Parent, Merger Sub and the Surviving Corporation and each of their directors, officers and Affiliates against and in respect of all Liabilities, obligations, judgments, Liens, injunctions, charges, orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, and amounts paid in settlement (including reasonable attorneys' and expert witness fees and disbursements in connection with investigating, defending or settling any action or threatened action) (collectively, the "Losses") that arise or result from: ------ (i) the inaccuracy of any representation or warranty made by Sellers herein, as if all materiality and knowledge qualifiers were deleted therefrom and as if any exception or limitation thereto disclosed in the Disclosure Schedule with respect thereto were not excepted from such representation or warranty, (ii) the nonfulfillment of any agreement or covenant of Sellers contained herein or in any agreement or instrument required to be entered into in connection herewith, (iii) any misrepresentation in the certificates referenced in section 6.1(l), or (iv) any Liability of the Company, the Basis of which arose or existed on or before the Effective Time, except for Liabilities relating to leases disclosed in Exhibit 3.14(b) arising after the Effective Time. Notwithstanding the foregoing, any Authorization or portion of the geographical area covered by an Authorization is not held by the Company as of the Effective Time as a result of the inaccuracy of (x) any representation or warranty made by the Sellers herein or (y) any representation in the certificate referenced in (S)6.1(l) hereof, and such Loss resulted in the Transaction Dollar Amount being below $28,123,880, Parent and Merger Sub shall have no further claim with respect to the value of such Authorization. For purposes of the definition of "Losses" (i) the value of any Authorization referred in the Memo, or portion of the geographic area covered by such Authorization, lost by the Surviving Corporation after the Effective Time as a result of any matter described in the Memo with respect to such Authorization shall be the product of (x) the amount set forth in Exhibit 2.7 opposite such Authorization and (y) the number of Pops covered by such Authorization, or portion of the geographic area ...
Indemnity by Stockholders. Except as otherwise expressly provided herein, each Stockholder hereby severally agrees to indemnify and hold Purchaser harmless from any Liabilities or Losses (other than Taxes) resulting from:
(a) The breach or inaccuracy of any representations or warranties (other than the representations and warranties contained in SECTIONS 4.17, 4.18 and 4.20) made herein by the Company or any of the Stockholders (it being agreed that for purposes of the right to indemnification pursuant to this clause (a), such representations and warranties of the Company and the Stockholders shall not be deemed to be qualified by any references to materiality generally or to whether or not any breach results or may result in a Material Adverse Effect);
(b) The failure of the Company or any of the Stockholders to completely perform any of their respective covenants or other obligations hereunder;
(c) Any claim by an unrelated third party based primarily upon facts that, if true, would mean that the Company's or any of the Stockholders' representations or warranties (other than the representations and warranties contained in SECTION 4.20) were false or inaccurate or that the Company or the Stockholders had failed to completely perform all of its or their covenants and other obligations hereunder (it being agreed that for purposes of the right to indemnification pursuant to this clause (c), such representations and warranties of the Company and the Stockholders contained herein shall not be deemed to be qualified by any references to materiality generally or to whether or not any breach results or may result in a Material Adverse Effect);
(d) The breach or inaccuracy of any representations or warranties made by such Stockholder in SECTIONS 4.17 and 4.18 (it being agreed that for purposes of the right to indemnification pursuant to this clause (d), such representations and warranties of such Stockholder shall not be deemed to be qualified by any references to materiality generally or to whether or not any breach results or may result in a Material Adverse Effect); and
(e) The arrangements identified in Items 1 through 5 on SCHEDULE 4.19(I). The Stockholders shall hold Purchaser harmless from the reasonable cost (including reasonable attorney's fees and reasonable costs of investigation and defense) of defending a claim (which is the subject of indemnification hereunder) made by a third party against Purchaser even if it is ultimately determined that the claim is without merit.
Indemnity by Stockholders. (a) Subject to the limitations set forth in Section 8.2.2 from and after the Effective Time, Parent, Merger Sub, the Company and their respective affiliates, officers, directors, employees, stockholders, representatives and agents (collectively the “Indemnified Parties”) shall be indemnified and held harmless out of the Escrow Fund then available pursuant to the Escrow Agreement, from and against and in respect of any and all Damages (as defined below) incurred or suffered by any Indemnified Parties arising out of or in connection with any inaccuracy in or breach of any of the Company’s representations, warranties, covenants or agreements (in the case of covenants and agreements to be performed by the Company, to the extent of performance or non-performance prior to the Closing Date) contained in this Agreement (in each case (other than with respect to Section 3.9(a)) without regard to any materiality qualifications contained therein, including, without limitation, as to Company Material Adverse Effect).
(b) For purposes of this Agreement, the term, “Damages” means any and all costs, losses (including without limitation diminution in value), taxes, liabilities, obligations, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), including without limitation interest, penalties, costs of mitigation, lost profits and other losses resulting from any shutdown or curtailment of operations, reasonable attorneys’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing, provided, however, that Damages shall not include any award of punitive or speculative damages except for such damages that are recovered by a third party from an Indemnified Party.
Indemnity by Stockholders. The Management Stockholders, acting jointly and severally (solidairement), and the other Stockholders, acting jointly but not severally (non solidairement), shall indemnify and hold harmless Purchaser, the Company and the Subsidiaries from and against any loss, liability, damage or expense, including reasonable attorneys’ fees incurred as a result thereof, (the “Loss”) that Purchaser, the Company or such Subsidiary shall incur or suffer (collectively, “Purchaser’s Recoverable Losses”), arising out of or resulting from any breach or inaccuracy of any representation or warranty of the Stockholders contained in Section 2 hereof or in any document, schedule or instrument delivered by or on behalf of the Stockholders pursuant hereto. Payments to be made by the Stockholders pursuant to this Section 7.2 shall be made to Purchaser.
Indemnity by Stockholders. (i) Subject to the limitations set forth in Sections 6.1, 6.2(c) and 6.2(d), from and after the Effective Time, Parent, Acquisition Sub, the Company and their respective affiliates, officers, directors, employees, stockholders, representatives and agents (collectively the "Parent Indemnitees") shall be indemnified and held harmless out of the Escrow Fund then available pursuant to the Escrow Agreement, from and against and in respect of any and all Losses (as defined below) incurred or suffered by any Parent Indemnitee arising out of or in connection with any inaccuracy in or breach of any of the Company's representations, warranties, covenants or agreements (in the case of covenants and agreements to be performed by the Company, to the extent of performance or non-performance prior to the Closing Date) contained in this Agreement.
(ii) For purposes of this Agreement, the term, "Losses" means any and all deficiencies, judgments, settlements, assessments, liabilities, losses, damages, fines, penalties, expenses (including reasonable legal, accounting and other costs and expenses of professionals) or costs incurred or suffered by any Indemnitee (as hereinafter defined), in connection with investigating, defending, settling or satisfying any and all demands, claims, actions, causes of action, suits, proceedings, assessments, judgments or appeals and in seeking indemnification therefor, and interest on any of the foregoing from the date incurred until paid at the prime rate published from time to time by Citibank, N.A; provided, however, that "Losses" shall not include any punitive damages. For purposes of this Agreement, the term "Transaction Documents" means this Agreement.
