Representations and Warranties Indemnification. A. The Company represents and warrants to Sears that the execution and performance of this Agreement and the issuance and delivery by the Company of the Stock to Sears has been duly authorized and all necessary corporate action has been taken. B. Sxxxx xxxresents and warrants to the Company as follows: 1. He is an "accredited investor" as defined by Rule 501(a) promulgated by the Securities and Exchange Commission ("SEC"), and that he has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that he is capable of evaluating the merits and risks of the his investment in the Company and has the capacity to protect his own interests. 2. He is acquiring the Restricted Stock for investment for his own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. He understands that the Restricted Stock has not been, and will not be, registered under the Securities Act or the securities laws of any state by reason of a specific exemption from the registration provisions of the Act and the applicable state securities laws, the availability of which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of his representations as expressed herein. 3. He acknowledges that the Restricted Stock must be held indefinitely unless subsequently registered under the Act or unless an exemption from such registration is available. He is aware of the current provisions of Rule 144 promulgated under the Act which permit limited resale of shares acquired in a private placement subject to the satisfaction of certain conditions, including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, the resale occurring not less than one year after a party has purchased and paid for the security to be sold, the sale being effected through a "broker's transaction" or in transactions directly with a "market maker" and the number of shares being sold during any three-month period not exceeding specified limitations. He acknowledges that, except as specifically set forth in this Agreement, he is not relying on the Company in any way to satisfy the conditions precedent for limited resale of shares pursuant to Rule 144 under the Act. 4. He understands that no public market now exists for any of the Restricted Stock to be issued by the Company and that the Company has made no assurances that a public market will ever exist for the Restricted Stock. 5. He has had an opportunity to discuss the Company's business, management and financial affairs with one or more of the directors and officers of the Company, and any questions he has asked were answered to his satisfaction. C. The Company and Sears (the "Indemnifying Party") agree to indemnify and hold the other Party (the "Indemnified Party") harmless from and against any and claims, losses, costs or other expenses (including reasonable attorneys' fees) incurred by the Indemnified Party in the event the representations and warranties of the Indemnifying Party set forth above are not true.
Appears in 1 contract
Samples: Settlement Agreement (Demegen Inc)
Representations and Warranties Indemnification. A. The Company represents and warrants to Sears Subscriber hereby confirms that the execution following representations and performance warranties to the Company, and all statements and information set forth in Paragraphs 3 and 4 hereof, are true as of this Agreement the date hereof, and the issuance Subscriber agrees to indemnify, hold harmless and delivery pay all judgments of and claims against the Company from any liability or injury, including but not limited to, those arising under federal or state securities laws, incurred as a result of any misrepresentation or misstatement by Subscriber herein or any warranties not performed by the Subscriber.
(a) The Subscriber is the sole and true party in interest and is not purchasing the Shares for the benefit of any other person.
(b) The Subscriber has read and reviewed the Registration Statement on Form S-1 with respect to the initial public offering of securities by the Company (as so amended, the “Registration Statement”). The Subscriber has also been given the opportunity to review the Company’s organizational documents, each as amended as of the Stock date of this Subscription Agreement, and other related documents. The Subscriber understands that all books, records and documents of the Company relating to Sears has this investment have been duly authorized and all necessary corporate action has been taken.
B. Sxxxx xxxresents and warrants remain available for inspection by the Subscriber upon reasonable advance notice to the Company as follows:
1Company. He is an "accredited investor" as defined by Rule 501(a) promulgated by the Securities and Exchange Commission ("SEC")The Subscriber confirms that all documents that it has requested have been made available, and that he the Subscriber has substantial been supplied with all of the additional information concerning this investment which Subscriber has requested. In making the decision to purchase the Shares, the Subscriber has relied exclusively upon information provided in writing by the Company, or found in the books, records or documents of the Company, and the Subscriber has had the opportunity to ask questions of and receive answers from persons authorized and acting on behalf of the Company to verify the accuracy and completeness of such information.
(c) The Subscriber has such knowledge and experience in evaluating financial and investing in private placement transactions of securities in companies similar to the Company so business matters that he it is capable of evaluating the merits and risks of the his this investment.
(d) The Subscriber is aware that an investment in the Company Shares is highly speculative and has subject to substantial risks. The Subscriber is capable of bearing the capacity high degree of economic risk and burdens of this venture, including but not limited to, the possibility of a complete loss of all contributed capital, the lack of a public market and limited transferability of the Shares, which may make liquidation of this investment impossible for the indefinite future. The financial condition of the Subscriber is such that it is under no present or contemplated future need to protect his own interestsdispose of any portion of the Shares to satisfy any existing or contemplated undertaking, need or indebtedness.
2. He is acquiring (e) The offer to sell the Restricted Stock for investment for his own account, not as Shares was directly communicated to the Subscriber in such a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. He understands manner that the Restricted Stock has not beenSubscriber was able to ask questions of and receive answers from the Company or a person acting on its behalf concerning the terms and conditions of this transaction. At no time was the Subscriber presented with or solicited by or through any leaflet, and will not bepublic promotional meeting, registered television advertisement or any other form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act of 1933, as amended (the “Act”), in connection and/or concurrently with such communicated offer.
(f) The Shares are being acquired solely for the Subscriber’s own account for investment, and are not being purchased with a view to resale, distribution, subdivision or fractionalization thereof.
(g) The Subscriber understands that the Shares have not been registered under the Act, or any state securities laws, in reliance upon exemptions from registration for non-public offerings. The Subscriber understands that the Shares or any interest therein may not and shall not be resold, pledged, assigned, hypothecated or otherwise disposed of by the Subscriber unless the Shares are subsequently registered under the Act and under appropriate state securities laws or unless the Company receives an opinion of any state by reason of a specific counsel satisfactory to it that an exemption from registration is available. The cost of such opinion of counsel satisfactory to the registration Company shall be borne by the Subscriber. The Subscriber further understands that the Shares are subject to restrictions, terms and conditions set forth in the insider letter between the Company and the Subscriber (the “Insider Letter”) and that no transfer of such Shares may be made without full compliance with such provisions of the Insider Letter as pertain to the transfer of Shares and that any transfer in violation thereof shall be void ab initio. The Subscriber agrees that the certificate(s) evidencing the Shares being purchased shall be stamped or otherwise imprinted with a conspicuous legend in substantially the following form: “The securities represented by this certificate may not be offered for sale, sold or otherwise transferred, except pursuant to an effective registration statement under the Securities Act and of 1933, as amended (the applicable state securities laws“Act”), or pursuant to an exemption from registration under the Act, the availability of which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of his representations as expressed herein.
3. He acknowledges that the Restricted Stock must is to be held indefinitely unless subsequently registered under the Act or unless an exemption from such registration is available. He is aware of the current provisions of Rule 144 promulgated under the Act which permit limited resale of shares acquired in a private placement subject established to the satisfaction of certain conditions, including, among other things, the existence issuer.”
(h) The undersigned has been informed of a public market for and understands the shares, the availability of certain current public information about following:
(1) Risks. There are substantial risks involved in an investment in the Company, the resale occurring not less than one year after a party has purchased and paid for the security to be sold, the sale being effected through a "broker's transaction" or in transactions directly with a "market maker" and the number of shares being sold during any three-month period not exceeding specified limitations. He acknowledges that, except as specifically set forth in this Agreement, he is not relying on the Company in any way to satisfy the conditions precedent for limited resale of shares pursuant to Rule 144 under the Act.
4. He understands that no public market now exists for any of the Restricted Stock to be issued by the Company and that the Company has made no assurances that a public market will ever exist for the Restricted Stock.
5. He has had an opportunity to discuss the Company's business, management and financial affairs with one or more of the directors and officers of the Company, and any questions he has asked were answered to his satisfaction.
C. The Company and Sears including (the "Indemnifying Party"without limitation) agree to indemnify and hold the other Party (the "Indemnified Party") harmless from and against any and claims, losses, costs or other expenses (including reasonable attorneys' fees) incurred by the Indemnified Party those risks disclosed in the event the representations and warranties of the Indemnifying Party set forth above are not true.Registration Statement;
Appears in 1 contract
Samples: Subscription Agreement (Union Street Acquisition Corp.)
Representations and Warranties Indemnification. A. The Company 6.1 Each Party represents and warrants to Sears the other Party that it is a corporation, duly organized, validly existing and in good standing under the execution laws of its jurisdiction of incorporation, and has the corporate power and authority to execute and deliver this Agreement, to consummate the transactions hereby contemplated, and to take all other actions required to be taken by it pursuant to the provisions hereof, and is not subject to, or a party to, any contract, agreement, instrument, order, judgment or decree, or any other restriction of any kind or character, which would prevent its entry into or performance under this Agreement, and no consent of or other action by or notice to any third party is required in connection with the Party's entering into and performing under this Agreement, and that this Agreement and the transactions described in this Agreement have been duly authorized by all necessary corporate action.
6.2 LCSG represents that the issuance and delivery by the Company of the Stock to Sears has Options and execution and delivery of the Registration Rights Agreement have been duly authorized and by all necessary corporate action action, that it has been taken.
B. Sxxxx xxxresents and warrants to the Company as follows:
1. He is an "accredited investor" as defined by Rule 501(a) promulgated by the Securities and Exchange Commission ("SEC"), and that he has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that he is capable of evaluating the merits and risks of the his investment in the Company and has the capacity to protect his own interests.
2. He is acquiring the Restricted Stock reserved for investment for his own account, not as issuance a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. He understands that the Restricted Stock has not been, and will not be, registered under the Securities Act or the securities laws of any state by reason of a specific exemption from the registration provisions of the Act and the applicable state securities laws, the availability of which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of his representations as expressed herein.
3. He acknowledges that the Restricted Stock must be held indefinitely unless subsequently registered under the Act or unless an exemption from such registration is available. He is aware of the current provisions of Rule 144 promulgated under the Act which permit limited resale of shares acquired in a private placement subject to the satisfaction of certain conditions, including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, the resale occurring not less than one year after a party has purchased and paid for the security to be sold, the sale being effected through a "broker's transaction" or in transactions directly with a "market maker" and the sufficient number of shares being sold during any threeof LCSG Common Stock issuable upon exercise of the Options, that all of such shares have been duly authorized, and when the Options are exercised and the exercise price has been paid, will be fully paid and non-month period not exceeding specified limitations. He acknowledges that, except as specifically set forth in this Agreement, he is not relying on the Company in any way to satisfy the conditions precedent for limited resale of shares pursuant to Rule 144 under the Actassessable.
4. He understands that no public market now exists 6.3 The Parties will be jointly and severally responsible for any liabilities of or claims against either of them arising from the conduct of the Restricted Stock Marketing Program, provided the Party whose activities give rise to be issued by the Company claim conducted such activities in accordance with the approved Sales Programs and that the Company has made no assurances that a public market will ever exist for the Restricted StockMarketing Materials.
5. He has had an opportunity to discuss 6.4 Each Party will indemnify the Company's business, management and financial affairs with one or more of the directors and officers of the Company, and any questions he has asked were answered to his satisfaction.
C. The Company and Sears (the "Indemnifying Party") agree to indemnify other Party and hold the other Party harmless from any liability, cost or expense arising solely from a breach of its representations and warranties in Paragraphs 6.1 or a breach by the Party of its obligations under paragraph 6.2.
6.5 A party entitled to indemnification under this Agreement shall be referred to hereafter as an "Indemnified Party" and a party obligated to provide indemnification shall be referred to hereafter as an "Indemnifying Party". If at any time an Indemnified Party shall claim indemnification from an Indemnifying Party for any Loss or, in the reasonable judgment of the Indemnified Party, for what, in the future, may result in a Loss ("Anticipated Loss") due to the filing, at or before the time of such claim, of an action, claim or suit with an arbitrator, mediator, court or other governmental entity as to which the Indemnified Party is entitled to indemnification under this Agreement ("Claim"), then the Indemnified Party shall promptly send written notice of the same (a "Notice of Claim") to the Indemnifying Party describing such Claim in reasonable detail. A Notice of Claim shall specify the basis for such Claim supported by relevant information and documentation.
6.5.1 If the Indemnifying Party shall allege that the Indemnified Party is not entitled to indemnification with respect to such Claim, it shall give written notice of such objection (a "Notice of Objection") to the Indemnified Party within 15 business days after receipt by the Indemnifying Party of the Notice of Claim, specifying the basis of the objections. If the Indemnifying Party does not give a Notice of Objection within such 15 business days, or shall have agreed to pay such Claim in whole or in part within such 15 business-day period, the Indemnifying Party shall thereupon be liable for the payment of all Losses relating to such Claim, except as otherwise provided in Section 6.4.2 herein.
6.5.2 In the event that the Indemnified Party shall have timely given a Notice of Objection in whole or in part to any Notice of Claim, during the 20-day period following that date, the Indemnified Party and the Indemnifying Party shall privately attempt to resolve the Claim. If the Indemnified Party and the Indemnifying Party shall have failed to resolve or compromise or agree to postpone resolution of the Claim within such 20-day period, then the Claim shall be settled by arbitration in New York, New York (the place in which the arbitration is to be held shall be referred to as the "Arbitration Venue"), as determined by the three arbitrators referred to in Paragraph 6.4.3 below, in accordance with the rules of the American Arbitration Association and the procedures set forth below.
6.5.3 Each of (A) the Indemnified Party and (B) the Indemnifying Party shall appoint one arbitrator, and the two arbitrators so appointed shall then together appoint a third arbitrator ("neutral arbitrator") from a list of persons supplied by the American Arbitration Association in the Arbitration Venue. If one party shall fail to appoint the arbitrator to be appointed by it within 15 days after the end of the 20-day period provided for in Section 6.4.2 above, the arbitrator appointed by the other party shall select from a list of persons supplied by the American Arbitration Association a person who shall serve as the single neutral arbitrator for purposes of the arbitration. If each party shall have appointed one arbitrator, but such designees cannot agree on the person to act as the neutral arbitrator within a period of 15 days after the appointment of the second arbitrator, then either party may apply to the American Arbitration Association in the Arbitration Venue, which shall appoint a neutral arbitrator. The arbitrators shall conduct the arbitration with all reasonable dispatch in accordance with the rules of the American Arbitration Association, provided, however, that the parties to such arbitration shall take such action and execute such instruments as shall be necessary to cause the rules of civil procedure of the state in which the Arbitration Venue is located pertaining to pre-trial discovery to be applicable in respect of such proceeding. The arbitrators shall render a written award (the "Indemnified PartyAward") harmless from which shall be delivered to the Indemnified Party and against the Indemnifying Party. An Award hereunder may be used as a basis for the entry of judgment in any jurisdiction. In the event the parties have submitted a Claim for an Anticipated Loss to arbitration under this Section 6 then the arbitrators may, in their sole discretion, postpone resolution of the Claim until the time which they have determined, in their sole discretion, to be the time when such Anticipated Loss shall have occurred or passed.
6.5.4 Prior to making the Award, the arbitrators shall direct the Indemnified Party and claims, losses, costs the Indemnifying Party to submit statements describing any element of Loss or other expenses (including reasonable Anticipated Loss as to which a Claim is made that is attributable to attorneys' fees) incurred , disbursements, and any similar costs incident to such Loss or Anticipated Loss, supported by the Indemnified Party in the event the representations affidavits showing that such costs actually have been or are likely to be incurred, and warranties of the Indemnifying Party set forth above are not true.all such attorneys' fees, disbursements and other costs shall be apportioned as determined by the
Appears in 1 contract
Representations and Warranties Indemnification. A. The Company 6.1 Each Party represents and warrants to Sears the other Party that it is a corporation, duly organized, validly existing and in good standing under the execution laws of its jurisdiction of incorporation, and has the corporate power and authority to execute and deliver this Agreement, to consummate the transactions hereby contemplated, and to take all other actions required to be taken by it pursuant to the provisions hereof, and is not subject to, or a party to, any contract, agreement, instrument, order, judgment or decree, or any other restriction of any kind or character, which would prevent its entry into or performance under this Agreement, and no consent of or other action by or notice to any third party is required in connection with the Party's entering into and performing under this Agreement, and that this Agreement and the transactions described in this Agreement have been duly authorized by all necessary corporate action.
6.2 LCSG represents that the issuance and delivery by the Company of the Stock to Sears has Options and execution and delivery of the Registration Rights Agreement have been duly authorized and by all necessary corporate action action, that it has been taken.
B. Sxxxx xxxresents and warrants to the Company as follows:
1. He is an "accredited investor" as defined by Rule 501(a) promulgated by the Securities and Exchange Commission ("SEC"), and that he has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that he is capable of evaluating the merits and risks of the his investment in the Company and has the capacity to protect his own interests.
2. He is acquiring the Restricted Stock reserved for investment for his own account, not as issuance a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. He understands that the Restricted Stock has not been, and will not be, registered under the Securities Act or the securities laws of any state by reason of a specific exemption from the registration provisions of the Act and the applicable state securities laws, the availability of which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of his representations as expressed herein.
3. He acknowledges that the Restricted Stock must be held indefinitely unless subsequently registered under the Act or unless an exemption from such registration is available. He is aware of the current provisions of Rule 144 promulgated under the Act which permit limited resale of shares acquired in a private placement subject to the satisfaction of certain conditions, including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, the resale occurring not less than one year after a party has purchased and paid for the security to be sold, the sale being effected through a "broker's transaction" or in transactions directly with a "market maker" and the sufficient number of shares being sold during any threeof LCSG Common Stock issuable upon exercise of the Options, that all of such shares have been duly authorized, and when the Options are exercised and the exercise price has been paid, will be fully paid and non-month period not exceeding specified limitations. He acknowledges that, except as specifically set forth in this Agreement, he is not relying on the Company in any way to satisfy the conditions precedent for limited resale of shares pursuant to Rule 144 under the Actassessable.
4. He understands that no public market now exists 6.3 The Parties will be jointly and severally responsible for any liabilities of or claims against either of them arising from the conduct of the Restricted Stock Marketing Program, provided the Party whose activities give rise to be issued by the Company claim conducted such activities in accordance with the approved Sales Programs and that the Company has made no assurances that a public market will ever exist for the Restricted StockMarketing Materials.
5. He has had an opportunity to discuss 6.4 Each Party will indemnify the Company's business, management and financial affairs with one or more of the directors and officers of the Company, and any questions he has asked were answered to his satisfaction.
C. The Company and Sears (the "Indemnifying Party") agree to indemnify other Party and hold the other Party harmless from any liability, cost or expense arising solely from a breach of its representations and warranties in Paragraphs 6.1 or a breach by the Party of its obligations under paragraph 6.2.
6.5 A party entitled to indemnification under this Agreement shall be referred to hereafter as an "Indemnified Party" and a party obligated to provide indemnification shall be referred to hereafter as an "Indemnifying Party". If at any time an Indemnified Party shall claim indemnification from an Indemnifying Party for any Loss or, in the reasonable judgment of the Indemnified Party, for what, in the future, may result in a Loss ("Anticipated Loss") due to the filing, at or before the time of such claim, of an action, claim or suit with an arbitrator, mediator, court or other governmental entity as to which the Indemnified Party is entitled to indemnification under this Agreement ("Claim"), then the Indemnified Party shall promptly send written notice of the same (a "Notice of Claim") to the Indemnifying Party describing such Claim in reasonable detail. A Notice of Claim shall specify the basis for such Claim supported by relevant information and documentation.
6.5.1 If the Indemnifying Party shall allege that the Indemnified Party is not entitled to indemnification with respect to such Claim, it shall give written notice of such objection (a "Notice of Objection") to the Indemnified Party within 15 business days after receipt by the Indemnifying Party of the Notice of Claim, specifying the basis of the objections. If the Indemnifying Party does not give a Notice of Objection within such 15 business days, or shall have agreed to pay such Claim in whole or in part within such 15 business-day period, the Indemnifying Party shall thereupon be liable for the payment of all Losses relating to such Claim, except as otherwise provided in Section 6.4.2 herein.
6.5.2 In the event that the Indemnified Party shall have timely given a Notice of Objection in whole or in part to any Notice of Claim, during the 20-day period following that date, the Indemnified Party and the Indemnifying Party shall privately attempt to resolve the Claim. If the Indemnified Party and the Indemnifying Party shall have failed to resolve or compromise or agree to postpone resolution of the Claim within such 20-day period, then the Claim shall be settled by arbitration in New York, New York (the place in which the arbitration is to be held shall be referred to as the "Arbitration Venue"), as determined by the three arbitrators referred to in Paragraph 6.4.3 below, in accordance with the rules of the American Arbitration Association and the procedures set forth below.
6.5.3 Each of (A) the Indemnified Party and (B) the Indemnifying Party shall appoint one arbitrator, and the two arbitrators so appointed shall then together appoint a third arbitrator ("neutral arbitrator") from a list of persons supplied by the American Arbitration Association in the Arbitration Venue. If one party shall fail to appoint the arbitrator to be appointed by it within 15 days after the end of the 20-day period provided for in Section 6.4.2 above, the arbitrator appointed by the other party shall select from a list of persons supplied by the American Arbitration Association a person who shall serve as the single neutral arbitrator for purposes of the arbitration. If each party shall have appointed one arbitrator, but such designees cannot agree on the person to act as the neutral arbitrator within a period of 15 days after the appointment of the second arbitrator, then either party may apply to the American Arbitration Association in the Arbitration Venue, which shall appoint a neutral arbitrator. The arbitrators shall conduct the arbitration with all reasonable dispatch in accordance with the rules of the American Arbitration Association, provided, however, that the parties to such arbitration shall take such action and execute such instruments as shall be necessary to cause the rules of civil procedure of the state in which the Arbitration Venue is located pertaining to pre-trial discovery to be applicable in respect of such proceeding. The arbitrators shall render a written award (the "Award") which shall be delivered to the Indemnified Party and the Indemnifying Party. An Award hereunder may be used as a basis for the entry of judgment in any jurisdiction. In the event the parties have submitted a Claim for an Anticipated Loss to arbitration under this Section 6 then the arbitrators may, in their sole discretion, postpone resolution of the Claim until the time which they have determined, in their sole discretion, to be the time when such Anticipated Loss shall have occurred or passed.
6.5.4 Prior to making the Award, the arbitrators shall direct the Indemnified Party and the Indemnifying Party to submit statements describing any element of Loss or Anticipated Loss as to which a Claim is made that is attributable to attorneys' fees, disbursements, and any similar costs incident to such Loss or Anticipated Loss, supported by affidavits showing that such costs actually have been or are likely to be incurred, and all such attorneys' fees, disbursements and other costs shall be apportioned as determined by the arbitrators. All fees of the arbitrator and administrative expenses of the American Arbitration Association shall be treated as costs for purposes of this Section 6. As a part of each Award made pursuant to this Agreement, the arbitrators shall allow interest thereon (other than on the portion of the Award representing attorneys' fees, disbursements and costs) from the date of the Loss or the date the Anticipated Loss becomes a Loss to the date of payment at the rate of 10% per annum.
6.5.5 The Award shall be a conclusive determination of the matter and shall be binding upon the Indemnified Party and the Indemnifying Party, and shall not be contested by either of them. The Indemnifying Party shall satisfy its obligations to pay an Award in cash.
6.5.6 If the subject of a Claim involves a third-party claim which has not yet been determined, the arbitrators may in their discretion make a separate determination solely as to whether the third-party claim is one for which indemnification may be had or may defer a determination as to whether indemnification may be had pending the further development of information as to the nature of the third-party claim. If the arbitrators determine that the third-party claim is not subject to indemnification, they shall set forth the basis of his decision in detail, which decision shall be deemed to be an "Award" hereunder.
6.5.7 If the Indemnified Party requests that the Indemnifying Party defend it against a Claim involving an Anticipated Loss, then the Indemnifying Party may, at its option, assume the defense of the Indemnified Party against such Claim (including the employment of counsel, who shall be counsel satisfactory to the Indemnified Party",) and the payment of expenses. If the Indemnified Party does not request the Indemnifying Party to defend it against such Claim or the Indemnifying Party fails to assume the defense of such Claim within a reasonable time after having been requested by the Indemnified Party to assume the defense, then the Indemnified Party shall have the right to defend himself in any such action and, if appropriate under Section 4(a) above, be indemnified for his costs and fees of defense by the Indemnifying Party. The Indemnified Party, at its own cost, may employ separate counsel to assert, based on an opinion of counsel to the Indemnified Party, one or more legal defenses available to it which are different from or additional to those available to such Indemnifying Party; the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnified Party in respect of such different or additional defenses. The Indemnifying Party shall not be liable to indemnify the Indemnified Party for any settlement of any such action or claim effected without the consent of the Indemnifying Party, but if settled with the written consent of the Indemnifying Party, or if there be a final judgment for the plaintiff in any such action, the Indemnifying Party shall indemnify and hold harmless the Indemnified Party from and against any Loss by reason of such settlement or judgment and claims, losses, costs or other expenses (including reasonable attorneys' fees) incurred by the Indemnified Party in the event the representations and warranties of the Indemnifying Party set forth above are not trueshall thereupon be liable for the payment of such Loss.
6.6 The provisions of this Section 6 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Marketing Agreement (LCS Golf Inc)
Representations and Warranties Indemnification. A. The Company 11.01 GENICOM hereby represents and warrants to Sears ADC the following:
(a) GENICOM has all necessary or appropriate right, title and ownership interest in the Intellectual Property embodied in the Products to be manufactured by ADC for GENICOM hereunder, and has the authority to grant the License to ADC;
(b) Based on GENICOM's experience and assuming normal business conditions, GENICOM is not aware of any condition that would cause a material or sole supplier of components used in the execution manufacture or assembly of the Products to cease supplying such components to GENICOM or DATACOM or to refuse to supply such components to ADC;
(c) GENICOM is not in material dispute with any of its suppliers of raw materials relating to the quality of such materials, late deliveries, or sums owed by GENICOM to any such supplier or otherwise;
(d) Not more than (10%) percent of the aggregate amount of all the purchases made by GENICOM in the past year have been obtained from the same supplier; and
(e) GENICOM's subsidiaries, GENMEX and performance DATACOM, do not have any supplier arrangements that would have a material affect on the Plant operations or Product manufacturing and assembly if such arrangements were substantially altered or terminated.
(f) GENICOM is not in default of the financial covenants in any loan agreement between it and any lender. In the event that GENICOM is in default of any such loan covenants, GENICOM shall xxve prompt oral notice thereof to ADC's chief operating officer, which notice shall be subject to Section 9 and disclosed within ADC and OGDEX xx a strict need to know basis. If GENICOM receives notice that any such loan shall be or has been accelerated (whichever notice is received sooner), GENICOM shall promptly notify ADC thereof and ADC may (at ADC's option) terminate this Agreement without regard to any applicable cure period. Such termination shall be deemed to be due to GENICOM's default hereunder.
11.02 Each party represents to the other party that it is duly incorporated in accordance with the laws and the issuance and delivery by the Company regulations of the Stock to Sears jurisdiction of its incorporation, and that it has been duly authorized executed and delivered this Agreement, and that this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms. The signatories hereto represent that they have full power and all necessary corporate action has been takenauthority to execute and deliver this Agreement.
B. Sxxxx xxxresents (a) ADC and warrants to the Company as follows:
1. He is an "accredited investor" as defined by Rule 501(a) promulgated by the Securities and Exchange Commission ("SEC"), and that he has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that he is capable of evaluating the merits and risks of the his investment in the Company and has the capacity to protect his own interests.
2. He is acquiring the Restricted Stock for investment for his own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. He understands that the Restricted Stock has not been, and will not be, registered under the Securities Act or the securities laws of any state by reason of a specific exemption from the registration provisions of the Act and the applicable state securities laws, the availability of which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of his representations as expressed herein.
3. He acknowledges that the Restricted Stock must be held indefinitely unless subsequently registered under the Act or unless an exemption from such registration is available. He is aware of the current provisions of Rule 144 promulgated under the Act which permit limited resale of shares acquired in a private placement subject to the satisfaction of certain conditions, including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, the resale occurring not less than one year after a party has purchased and paid for the security to be sold, the sale being effected through a "broker's transaction" or in transactions directly with a "market maker" and the number of shares being sold during any three-month period not exceeding specified limitations. He acknowledges that, except as specifically set forth in this Agreement, he is not relying on the Company in any way to satisfy the conditions precedent for limited resale of shares pursuant to Rule 144 under the Act.
4. He understands that no public market now exists for any of the Restricted Stock to be issued by the Company and that the Company has made no assurances that a public market will ever exist for the Restricted Stock.
5. He has had an opportunity to discuss the Company's business, management and financial affairs with one or more of the directors and officers of the Company, and any questions he has asked were answered to his satisfaction.
C. The Company and Sears (the "Indemnifying Party") agree to GENICOM shall each indemnify and hold harmless the other Party (the "Indemnified Party") harmless party from and against any and all claims, actions, proceedings, liabilities, losses, costs or other and expenses (including reasonable attorneys' feesfees with respect thereto) incurred arising out of or attributable to the breach of any representation or warranty made herein by such breaching party.
(b) A party making a claim for indemnification pursuant to this Section 11.03 (the Indemnified Party "Indemnitee") shall notify the other party (the "Indemnitor") in the event the representations and warranties writing of the Indemnifying Party set nature of any such claim promptly upon receipt of knowledge of the facts upon which such claim is based, setting forth above are not truespecifically the representation or warranty with respect to which the claim is made, if applicable, the facts giving rise to the alleged basis for the claim, and the amount of liability asserted, to the extent known. The Indemnitor shall have the right to conduct the defense of any such claim or action against the Indemnitee, provided that it so elects by notice to the Indemnitee promptly upon receipt of notice thereof from the Indemnitee. In defending, compromising or settling any such claim or action, the Indemnitor shall exercise due regard for the Indemnitee's continuing business interests and, where compromising or settling any such claim, shall provide for a complete release of claims in favor of the Indemnittee. The Indemnitee shall fully cooperate with the Indemnitor in defense of all such claims or actions which the Indemnitor elects to defend, and the Indemnitee shall have the right, at its own cost and expense, to employ xxunsel to assist in such defense, which counsel may consult or confer with and advise counsel or other representatives of the Indemnitor with respect thereto. The Indemnitee's cooperation shall include making available the time and assistance of the officers and other employees of the Indemnitee and providing access to and the right to make copies of and excerpts from all pertinent documents, books and records.
Appears in 1 contract
Samples: Services Agreement (Genicom Corp)
Representations and Warranties Indemnification. A. The Company represents and warrants to Sears that the execution and performance of this Agreement and the issuance and delivery by the Company of the Stock to Sears has been duly authorized and all necessary corporate action has been taken.
B. Sxxxx xxxresents and warrants to the Company as follows:
1. He is an "accredited investor" as defined by Rule 501(a) promulgated by the Securities and Exchange Commission ("SEC"), and that he has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that he is capable of evaluating the merits and risks of the his investment in the Company and has the capacity to protect his own interests.
2. He is acquiring the Restricted Stock for investment for his own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. He understands that the Restricted Stock has not been, and will not be, registered under the Securities Act or the securities laws of any state by reason of a specific exemption from the registration provisions of the Act and the applicable state securities laws, the availability of which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of his representations as expressed herein.
3. He acknowledges that the Restricted Stock must be held indefinitely unless subsequently registered under the Act or unless an exemption from such registration is available. He is aware of the current provisions of Rule 144 promulgated under the Act which permit limited resale of shares acquired in a private placement subject to the satisfaction of certain conditions, including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, the resale occurring not less than one year after a party has purchased and paid for the security to be sold, the sale being effected through a "broker's transaction" or in transactions directly with a "market maker" and the number of shares being sold during any three-month period not exceeding specified limitations. He acknowledges that, except as specifically set forth in 5.1 By executing this Agreement, he is not relying on the Company Transferors and Field hereby jointly and severally represent and warrant to Headliners that:
(a) subject to any transfers by Headliners, immediately prior to their transfer of same to Headliners, the Transferors were (in the case of the Acquired LLCs) or are (in the case of Louisville) the sole beneficial and record owners of all interests in the Acquired LLCs and Louisville with right of transfer, and, upon consummation of the transactions contemplated by the Amendment and this Agreement, such interests have been (in the case of the Acquired LLCs) or will be (in the case of Louisville) effectively vested in the Purchaser; and
(b) subject to any way transfers by Headliners, immediately prior to satisfy their transfer of same to Headliners, the conditions precedent Transferors and Field had the sole rights to manage and operate the businesses of the Acquired LLCs and Louisville, and hold valid title to all leases, licenses and any intellectual property necessary for limited resale the operation of shares pursuant to Rule 144 under the Actsuch businesses.
4. He understands that no public market now exists for any of the Restricted Stock to be issued by the Company 5.2 The Transferors and that the Company has made no assurances that a public market will ever exist for the Restricted Stock.
5. He has had an opportunity to discuss the Company's business, management Field hereby jointly and financial affairs with one or more of the directors and officers of the Company, and any questions he has asked were answered to his satisfaction.
C. The Company and Sears (the "Indemnifying Party") agree to severally indemnify and hold the other Party (the "Indemnified Party") Headliners harmless from and against any and claimsall claim, lossesdamage, costs liability, cost or other expenses (including reasonable attorneys' fees) incurred by expense resulting from or arising out of the Indemnified Party in the event breach of any of the representations and warranties contained in Section 5.1 of this Agreement.
5.3 By executing this Agreement, Headliners hereby represents and warrants to Transferors and Field that to its knowledge:
(a) there are no claims against Virginia, arising from Headliners's operation of the Indemnifying Party set forth above are facility;
(b) that there have been no liquor violations during Headliners's management of the club nor any other circumstances which would cause it to doubt that the liquor license is in good standing as of the Closing Date; and
(c) that the debenture previously issued to JHF has not truebeen cancelled and is valid. Headliners shall deliver to Danny Bank, Esq. a replacemexx xxxxxxxl signature page to the debenture upon receipt by Headliners from Transferors of an originally executed standard form lost instrument affidavit and indemnity regarding the debenture.
5.4 Headliners shall indemnify and hold the Transferors and Field harmless from and against any and all claim, damage, liability, cost or other expense resulting from or arising out of the breach of any of the representations and warranties contained in Section 5.3 of this Agreement.
Appears in 1 contract
Samples: Settlement Agreement (Headliners Entertainment Group, Inc.)
Representations and Warranties Indemnification. A. The Company SBE hereby represents and warrants warrants, and also acknowledges that XeTel is relying on such representations and warranties, that SBE's design(s) for the Equipment which SBE has furnished to Sears that XeTel are the execution and performance original creation of this Agreement and SBE, or SBE has obtained such rights from the issuance and delivery by original creator to disclose the Company of the Stock design(s) to Sears has been duly authorized and all necessary corporate action has been taken.
B. Sxxxx xxxresents and warrants to the Company as follows:
1. He is an "accredited investor" as defined by Rule 501(a) promulgated by the Securities and Exchange Commission ("SEC")XeTel, and that he has substantial experience in evaluating and investing in private placement transactions the manufacture of securities in companies similar to the Company so that he is capable of evaluating the merits and risks of the his investment Equipment by XeTel in the Company and has the capacity to protect his own interests.
2. He is acquiring the Restricted Stock manner provided for investment for his own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. He understands that the Restricted Stock has not been, and will not be, registered under the Securities Act or the securities laws of any state by reason of a specific exemption from the registration provisions of the Act and the applicable state securities laws, the availability of which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of his representations as expressed herein.
3. He acknowledges that the Restricted Stock must be held indefinitely unless subsequently registered under the Act or unless an exemption from such registration is available. He is aware of the current provisions of Rule 144 promulgated under the Act which permit limited resale of shares acquired in a private placement subject to the satisfaction of certain conditions, including, among other things, the existence of a public market for the shares, the availability of certain current public information about the Company, the resale occurring not less than one year after a party has purchased and paid for the security to be sold, the sale being effected through a "broker's transaction" or in transactions directly with a "market maker" and the number of shares being sold during any three-month period not exceeding specified limitations. He acknowledges that, except as specifically set forth in this AgreementAgreement shall not violate or infringe upon any U.S. patent, he is not relying on the Company in any way trade secret or copyright or similar rights of third parties. SBE also agrees to satisfy the conditions precedent for limited resale of shares pursuant to Rule 144 under the Act.
4. He understands that no public market now exists for any of the Restricted Stock to be issued by the Company and that the Company has made no assurances that a public market will ever exist for the Restricted Stock.
5. He has had an opportunity to discuss the Company's businessdefend, management and financial affairs with one or more of the directors and officers of the Company, and any questions he has asked were answered to his satisfaction.
C. The Company and Sears (the "Indemnifying Party") agree to indemnify and hold the other Party (the "Indemnified Party") XeTel, its officers, directors, employees and agents harmless from and against any and claims, losses, costs or other expenses (including reasonable attorneys' attorney's fees) ), claims, demands, actions, damages, expenses, liabilities, or injuries arising out of or in any way related to any alleged infringement of any world-wide patent, trade secret, copyright or similar rights of third parties relating to the design of the Equipment. If an indemnified party has incurred by or suffered any loss or expenses for which such party is or may be entitled to indemnification pursuant hereto, such party shall promptly give written notice of such claim for indemnification to SBE, stating the Indemnified Party amount claimed and the basis therefor. SBE shall have the right to assume the defense of any third party claim involving such loss and expenses with counsel reasonably satisfactory to XeTel. If SBE chooses not to assume such defense, SBE may nevertheless participate therein with counsel of its choosing. If SBE assumes such defense, SBE shall thereafter not be responsible for any attorney's fees of any indemnified party not previously incurred with respect to such defense except to the extent SBE requests the assistance of such party's counsel. Each indemnified party shall, at SBE's expense, cooperate with and assist SBE in the event defense of any such claim in the representations and warranties manner reasonably requested by SBE, No indemnified party shall settle any claim for which indemnification may be sought hereunder without the prior written consent of the Indemnifying Party set forth above are SBE not trueto be unreasonably withheld.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sbe Inc)
