Seller Indemnity. Subject to the provisions of Section 8.04 hereof, Seller shall defend, indemnify and hold harmless Buyer (and their respective directors, officers, employees, agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of: (a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation; (b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and (c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claim.
Appears in 2 contracts
Samples: Asset Acquisition Agreement (Blue Moon Group Inc), Asset Acquisition Agreement (Blue Moon Group Inc)
Seller Indemnity. Subject Seller agrees to the provisions of Section 8.04 hereofindemnify, Seller shall defend, indemnify save and hold harmless each Buyer (and their respective directors, officers, employees, agents, affiliates, successors and assigns) Indemnitee from and against any and all demandsClaims which may be alleged or incurred by a Buyer Indemnitee (regardless of when same are suffered or incurred): (a) arising directly or indirectly out of or in any way connected with the purchase, claimsregistration, paymentsperformance, defensestransportation, management, sale, inspection, testing, delivery, leasing, replacement, removal or redelivery, condition, ownership, manufacture, design, maintenance, service, repair, overhaul, improvement, modification or alteration, possession, control, use, operation or other activity of the Engines by Seller or relating to loss or destruction of or damage to any property, or death or injury to any person caused by, relating to or arising from or out of (in each case whether directly or indirectly) any of the foregoing matters, or whether it arises out of or is attributable to any act or omission or otherwise of Seller and in respect of or to the extent attributable to the period prior to Delivery (but excluding Delivery); or (b) as a result of the breach by Seller of any of its obligations, recoveriesrepresentations or warranties hereunder or any documents entered into in connection therewith; or (c) for taxes in any jurisdiction, deficienciesincluding interest and penalties thereon, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages imposed on or in connection with the Engines and which are imposed with regard to the time period prior to Delivery (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution but excluding Delivery); Provided that the indemnities from the Seller contained in this clause 4.3 shall not extend to any Claims to the value of stock), liabilities, costs, and expenses of any kind (including without limitation extent that such Claims:
(i) interestarise out of any act, penalties and reasonable attorneys' fees and expensesomission, event or circumstance occurring in respect of the Engines after Delivery;
(ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and are caused by the willful misconduct or gross negligence of any of the Buyer Indemnities;
(iii) consultants' fees and other costs to the extent such Losses arise from an act or omission of defending Buyer or investigating any claim hereunder)a Buyer Indemnitee as a manufacturer, whether accrued, absolute, contingent, known, unknown, repairer or otherwise as servicer of aviation products; or
(iv) are the Closing Date or thereafter asserted against, imposed upon or incurred result of a failure by Buyer to comply with any of its obligations under this Agreement or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and or warranty of Buyer contained in this Agreement not being true and correct. Any payment or indemnity made under this Section by either party shall include any misrepresentation in amount necessary to hold the Seller Indemnitee (or omission Buyer Indemnitee, as the case may be) harmless on the part of Seller contained in any certificate furnished or an after-tax basis from all withholding taxes and other taxes, fees and other charges required to be furnished paid with respect to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any such payment or indemnity claim covered hereby under all applicable laws. Each party shall be limited give prompt written notice to the recovery by Buyer other party of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closingany liability for which it is, or may be, liable under this provision; provided, however, that if an indemnity claim is asserted prior failure to give such expiration date, but is contested or otherwise notice will not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution terminate any of the claimrights of such indemnitee hereunder.
Appears in 2 contracts
Samples: Engine Sale and Purchase Agreement (Air T Inc), Engine Sale and Purchase Agreement (Air T Inc)
Seller Indemnity. Subject to the provisions of Section 8.04 hereof, Each Seller shall defend, will indemnify and hold harmless Buyer (and their respective directorsPointer, officers, employees, agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agentsany underwriter for Pointer and each person, affiliatesif any, successors who controls Pointer (within the meaning of section 15 of the Securities Act or assigns by reason ofSection 20(a) of the Exchange Act) or such underwriter, resulting fromfrom and against any and all losses, arising out ofdamages, based uponclaims, awarded liabilities, costs or expenses (including any amounts paid in any settlement effected with such Seller's consent) asserted against or otherwise in respect of:
incurred by Pointer, its directors, officers, employees, any such underwriter or any such controlling person which shall be caused by (ai) any period untrue statement or periods alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the prospectus (or any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Seller ending prior will reimburse Pointer, its directors, officers, employees, any such underwriter and each such controlling person of Pointer or any such underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the Closing and which involve any claims against Sellerextent, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless that such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in untrue statement or omission on the part of Seller is contained in any certificate information so furnished in writing by the Seller to Pointer for inclusion in the Registration Statement or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closingsuch prospectus; provided, however, that the indemnity agreement contained in this Section 6.6 shall not apply to amounts paid in settlement of any losses if an indemnity claim such settlement is asserted effected without the prior written consent of the Seller. In no event shall the liability of the Seller hereunder be greater in amount than the dollar amount of the net proceeds received by the Seller upon the sale of the Pointer Shares giving rise to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claimindemnification obligation.
Appears in 2 contracts
Samples: Share Purchase Agreement (Pointer Telocation LTD), Share Purchase Agreement (Gandyr Investments Ltd.)
Seller Indemnity. Subject to 40.1 (a) For a period commencing on the provisions Effective Date and following the Closing for a period of Section 8.04 hereoftime ending on December 31, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall defendjointly and severally indemnify, indemnify defend (with counsel acceptable to Purchaser) and hold harmless Buyer (Purchaser and its respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates and their respective directors, officers, employees, agents, affiliates, successors and assigns) , including, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and all demandsliquidated liabilities (including, claimswithout limitation, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation resulting from: (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary any matter or thing pertaining to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending the ownership or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as operation of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:
(a) any period or periods of Seller ending Property prior to the Closing Date; (ii) any liabilities and which involve any claims against litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by the release by Purchaser of Seller pursuant to the Assumption and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect of the Property, or their respective properties or assets, in each case relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller events occurring prior to the Closing unless such liability relates to an Assumed Obligation;
Date; (biii) any breach Seller’s violation of any representation and warranty contained in Section 10.1(p) hereof; (iv) Seller’s default under this Agreement beyond any applicable notice and grace periods, due to matters solely within Seller’s control; or (v) Seller’s failure to consummate the Closing and/or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer Indemnitor’s hindrance of the consideration paid hereunder. The indemnity herein contained shall expire one year following Closing or the Closingconsummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s control; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this the foregoing indemnity shall expire with respect not be applicable to such claim only upon resolution (x) Losses incurred as a result of the claimexercise by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payables, to the extent that such Losses are less than the Maximum Trade Payables Exposure.
Appears in 2 contracts
Samples: Sale Purchase Agreement, Sale Purchase Agreement (CBRE Realty Finance Inc)
Seller Indemnity. Subject to the provisions of Section 8.04 hereoflimitations set forth in this Article X, Seller shall defendthe Buyer and Oneida, jointly and severally, hereby agree to indemnify and hold harmless Buyer (the Seller and their respective its officers, directors, officersshareholders (including without limitation, the Shareholders), employees, Affiliates, attorneys, accountants, agents, affiliates, successors and assignsassigns (collectively, the "Seller Parties") from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting harmless from, arising out of, based upon, awarded or asserted against or otherwise and in respect of:
(a) any period and all Loss suffered or periods incurred by any of the Seller ending prior Parties by reason of any untrue representation, breach of warranty or non-fulfillment of any covenant by Buyer contained herein or in any Schedule, Exhibit, certificate, document or instrument delivered to the Closing and which involve any claims against Seller, Seller on the date hereof or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to at the Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any and all liabilities or obligations of the Seller specifically assumed by the Buyer pursuant to this Agreement in conformity with representations, warranties and covenants of the Seller and the Shareholders;
(c) any and all liabilities or obligations arising from the Buyer's use of the Acquired Assets from and after the Closing Date; and
(d) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity. To the extent that the undertakings of the Buyer and Oneida set forth in this Section 10.3 may be unenforceable, the Buyer and Oneida shall contribute the maximum amount that they are permitted to contribute under applicable law to the payment and satisfaction of all Losses incurred by the Seller Parties. Notwithstanding the foregoing, neither the Buyer nor Oneida shall have any liability under Section 10.3(a) or (d) for a breach or inaccuracy of any representation and or warranty contained in this Agreement Agreement, or any misrepresentation in or omission on the part of Seller contained in any certificate furnished Schedule, Exhibit, certificate, document or to be furnished to instrument delivered in connection herewith by the Buyer or Oneida, unless and until the aggregate amount of Loss suffered or incurred by the Seller pursuant to this Agreement; and
(c) the remedy Parties as a result of one or more of such breaches or inaccuracies exceeds $250,000, and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire then only with respect to so much of such claim only upon resolution of the claimLoss as exceeds $250,000.
Appears in 1 contract
Seller Indemnity. Subject (a) Sellers jointly and severally agree to the provisions of Section 8.04 hereof, Seller shall defend, indemnify and hold harmless Buyer (and their respective directorsPurchaser, its officers, employeesdirectors, agents, affiliates, successors attorneys and assignsaccountants ("Purchaser Indemnitees") harmless from and against any and all demandsdamages, losses (which shall include any diminution in value, liabilities, joint or several), payments, obligations, penalties, claims, paymentslitigation, demands, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of actionjudgments, suits, proceedings, judgmentscosts, losses, damages disbursements or expenses (including without limitation punitivelimitation, exemplary or consequential damagesfees, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, disbursements and expenses of attorneys, accountants and other professional advisors and of expert witnesses and costs of investigation and preparation) of any kind or nature whatsoever (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereundercollectively "Damages"), whether accrued, absolute, contingent, known, unknown, directly or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, indirectly resulting from, relating to or arising out of, based upon, awarded or asserted against or otherwise in respect of:
(ai) any period breach or periods nonperformance (partial or total) of Seller ending or inaccuracy in any representation or warranty or covenant or agreement of Sellers contained in any Operative Document;
(ii) any liability or obligation arising out of Sellers' business as conducted prior to the Closing and which involve not expressly assumed by Purchaser pursuant to this Agreement;
(iii) any losses or costs of defending against any claims which may be made against SellerPurchaser by any Person claiming violations by either Seller of any local, state, or their respective properties or assets, federal law relating to actions or inactions the employment relationship, including, but not limited to, wages, hours, concerted activity, nondiscrimination, occupational health and safety and the payment and withholding of Seller or its officersTaxes, directors, shareholder, employees or agents prior to Closing, or the operation where such claims arise out of the business of Seller circumstances occurring prior to the Closing unless such liability relates Date;
(iv) any actual or threatened violation of or non-compliance with, or remedial obligation arising under, any environmental laws arising from any event, condition, circumstance, activity, practice, incident, action or plan existing or occurring prior to an Assumed Obligationthe Closing relating in any way to the assets or the business of Sellers;
(v) Either Seller's failure to comply with the laws of any jurisdiction with respect to the bulk sales laws that may be applicable to the sale of the Assets to Purchaser as contemplated hereby; and
(vi) the Transaction Expenses incurred by either Seller.
(b) any breach Sellers shall retain joint and several liability, and shall indemnify Purchaser, for the payment of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part Tax liabilities of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; andeither Seller.
(c) Notwithstanding anything contained herein to the remedy and right of recovery contrary, Sellers shall not be liable for any indemnity claim covered hereby indemnification obligations hereunder for breaches of representations and warranties set forth in this Agreement until the aggregate amount for which the Sellers would otherwise (but for this provision) be liable on account thereof exceeds in the aggregate the sum of Twenty Five Thousand Dollars ($25,000.00) (the "Threshold"), in which case the Sellers shall be limited to liable for all such indemnification obligations incurred, including the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claimThreshold.
Appears in 1 contract
Samples: Asset Purchase Agreement (Communications World International Inc)
Seller Indemnity. Subject to the provisions of Section 8.04 hereofExcept as expressly provided under this subsection (b), Seller shall defend, indemnify and agrees to hold harmless Buyer (the Purchaser Indemnified Parties from claims, damages, losses and their respective directorsexpenses, officersincluding but not limited to attorneys’ fees, for damage to property owned by the Seller or any of its employees, agents or subcontractors, or any bodily or personal injury to its employees, agents or subcontractors arising out of, or from the performance of Seller’s operations or services, or any act, omission, claim or loss of any of Seller’s employees, agents, affiliatessubcontractors or any other party Seller is responsible for (collectively, successors and assigns) from and against any and all demands“Losses”), claimsexcept to the extent such Loss is due to or caused by the gross negligence or willful misconduct of a Purchaser Indemnified Party. Further, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution nothing in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of forgoing shall limit the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions right of Seller or its officersinsurers to proceed against and collect insurance proceeds from Purchaser’s insurers to the extent such Loss is covered by Purchaser’s polices. Subject to the foregoing, directorsSeller will indemnify, shareholderdefend and hold harmless the Purchaser Indemnified Parties (with counsel reasonably acceptable to Purchaser), employees from and against all Liabilities resulting from or agents prior relating to Closingany third-party claim for: injury to or death of persons, and damage to or loss of property, in each case, to the extent caused by or arising out of the negligent acts or omissions of, or the operation of the business willful misconduct of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closingits agents; provided, however, that if an indemnity nothing in this sentence requires Seller to indemnify Purchaser Indemnified Parties for any Liabilities resulting from or relating to any claim is asserted prior to such expiration date, but is contested the extent caused by or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution arising out of the claimnegligent acts or omissions of, or the willful misconduct of, any Purchaser Indemnified Parties. Subject to the foregoing, Purchaser agrees to defend, indemnify, and hold harmless Seller (with counsel reasonably acceptable to Seller), its employees, subcontractors and their employees from any Liabilities resulting from or relating to any third-party claim (other than employees, agents, contractors or subcontractors of Seller) in connection with damage to property or any bodily or personal injury, to the extent such Liabilities are due to the misconduct or negligence of the Purchaser, the Purchaser’s subcontractors or agents or any other person or party under the control (whether actual or constructive) of the Purchaser (but not including Seller, any of its employees, contractors, subcontractors, agents or any of its or their respective employees, contractors, subcontractors or agents).
Appears in 1 contract
Samples: Solar Power Purchase Agreement
Seller Indemnity. Subject to the provisions of Section 8.04 hereof, Seller shall defend, indemnify and hold harmless Buyer (and their respective directors, officers, employees, agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' ’ fees and expenses, (ii) attorneys' ’ fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' ’ fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officersmanagers, directors, shareholdermembers, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and,
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claim.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Mobieyes Software, Inc.)
Seller Indemnity. Subject to the provisions of Section 8.04 hereof, Each Seller shall defend, will indemnify and hold harmless Buyer (and their respective directorsPointer, officers, employees, agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agentsany underwriter for Pointer and each person, affiliatesif any, successors who controls Pointer (within the meaning of section 15 of the Securities Act or assigns by reason ofSection 20(a) of the Exchange Act) or such underwriter, resulting fromfrom and against any and all losses, arising out ofdamages, based uponclaims, awarded liabilities, costs or expenses (including any amounts paid in any settlement effected with such Seller's consent) asserted against or otherwise in respect of:
incurred by Pointer, its directors, officers, employees, any such underwriter or any such controlling person which shall be caused by (ai) any period untrue statement or periods alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the prospectus (or any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Seller ending prior will reimburse Pointer, its directors, officers, employees, any such underwriter and each such controlling person of Pointer or any such underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the Closing and which involve any claims against Sellerextent, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless that such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in untrue statement or omission on the part of Seller is contained in any certificate information so furnished in writing by the Seller to Pointer for inclusion in the Registration Statement or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closingsuch prospectus; provided, however, that the indemnity agreement contained in this Section 5.6 shall not apply to amounts paid in settlement of any losses if an indemnity claim such settlement is asserted effected without the prior written consent of the Seller. In no event shall the liability of the Seller hereunder be greater in amount than the dollar amount of the net proceeds received by the Seller upon the sale of the Pointer Shares giving rise to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claimindemnification obligation.
Appears in 1 contract
Seller Indemnity. Subject to the provisions of Section 8.04 hereof, Seller shall defend, indemnify and hold harmless Buyer Purchaser (and their respective its directors, officers, employees, agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' ’ fees and expenses, (ii) attorneys' ’ fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' ’ fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer Purchaser or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective its properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholdershareholders, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an the Assumed ObligationDebt;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer Purchaser by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer Purchaser of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claim.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Sweetwater Resources, Inc.)
Seller Indemnity. Subject to the provisions of Section 8.04 hereof, Seller shall defend, indemnify and hold harmless Buyer Purchaser (and their respective directors, officers, employees, agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' ’ fees and expenses, (ii) attorneys' ’ fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' ’ fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer Purchaser or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer Purchaser by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer Purchaser of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claim.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Fero Industries, Inc.)
Seller Indemnity. Subject Buyer hereby agrees to the provisions of Section 8.04 hereof, Seller shall defend, indemnify and ---------------- hold harmless Buyer (each of Sellers and their respective its officers, directors, officersstockholders, employees, agents, affiliates, successors attorneys, accountants and assignsagents (collectively, the "Seller ------ Indemnified Parties") from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting harmless from, arising out of, based upon, awarded or asserted against or otherwise and in respect of:: -------------------
(a) any period and all Loss suffered or periods incurred by any of the Seller ending Indemnified Parties by reason of any untrue representation, breach of warranty or non-fulfillment of any covenant by Buyer contained herein; provided, however, -------- ------- that none of the warranties and representations of Buyer contained in this Agreement shall survive after the Expiration Date, provided, further, that any -------- ------- claims asserted by the Seller Indemnified Parties prior to the Closing and which involve any claims against SellerExpiration Date shall continue to be subject to indemnification hereunder after the Expiration Date until the claim is adjudicated by a final, non-appealable decision of a court of competent jurisdiction or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or is settled by the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligationparties;
(b) any breach and all liabilities or obligations of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Sellers specifically assumed by Buyer by Seller pursuant to this AgreementAgreement in conformity with representations, warranties and covenants of Sellers;
(c) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity; and
(cd) the remedy any and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer all liabilities or obligations arising from Buyer's use of the consideration paid hereunder. The indemnity herein contained shall expire one year following Acquired Assets from and after the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claimClosing Date.
Appears in 1 contract
Seller Indemnity. (a) Subject to the other provisions of Section 8.04 hereofthis Article VI, Seller hereby agrees that from and after the Closing it shall defendindemnify, indemnify defend and hold harmless Buyer Buyer, its Affiliates (including, without limitation, after the Closing, Target Company) and their respective directorsRepresentatives (the “Buyer Indemnified Parties”) from, officers, employees, agents, affiliates, successors against and assigns) from and against in respect of any and all damages, losses, charges, liabilities, claims (including, without limitation, third party claims), demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, payments, judgments, lossessettlements, damages (including without limitation punitiveassessments, exemplary or consequential damages, lost income and profits, interruptions of business and diminution diminutions in the value of stock), liabilitiesvalue, costs, expenses, Taxes, interests and expenses penalties (including, without limitation, reasonable attorneys’ and other professional fees, reasonable out of pocket disbursements and the reasonable fees and costs incurred in enforcing rights under this Article VI) (collectively, “Losses”) imposed on, sustained, incurred or suffered by, or asserted against, any kind (including without limitation of the Buyer Indemnified Parties, to the extent arising or resulting from or incurred in connection with or otherwise with respect to each of the following:
(i) interestany inaccuracy in or breach of any representation or warranty of Seller contained in or made pursuant to this Agreement or in any certificate delivered pursuant to this Agreement (reading such representations or warranties without regard to any materiality qualifier, penalties including “Material Adverse Effect,” contained therein (other than the representations and reasonable attorneys' fees warranties set forth in Section 2.2.5(ii)));
(ii) any failure or breach of Seller to duly perform or observe any term, provision or covenant or agreement to be performed or observed by it pursuant to this Agreement;
(iii) all of the judicial or administrative actions, suits, investigations, inquiries or proceedings Disclosed in Section 2.2.16 of the Seller Disclosure Schedule and expensesall other judicial or administrative actions, suits, investigations, inquiries or proceedings commenced on or prior to the Closing Date against, with respect to or involving Target Company (collectively, the “Retained Litigation”);
(iv) any events, facts, circumstances or omissions (collectively, “Events”) arising out of the ownership of Target Company or the operation or conduct of the business of Target Company or otherwise involving Target Company on or prior to the Closing Date, including, without limitation, any judicial or administrative actions, suits, investigations, inquiries, proceedings or taxes arising or resulting from or incurred in connection with, or otherwise with respect to Events arising out of such matters and occurring on or prior to the Closing Date, regardless of when such claim is asserted or when such actions, suits, investigations, inquiries or proceedings are commenced;
(v) the Excluded Assets, the Excluded Liabilities (regardless of whether or not Seller Disclosure Schedule discloses any such Excluded Liability) and the Reorganization;
(vi) any Tax imposed upon Seller, a Seller Group (except Target Company) or any Affiliate of Seller (except Target Company) for any period;
(vii) any Tax for a Pre-Closing Period for which Target Company may be liable (x) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), (y) as a transferee or successor or (z) by contract;
(viii) any Tax imposed on Target Company for a Pre-Closing Period (including the portion of any Tax imposed on Target Company for a Straddle Period that is allocable to the portion of such period ending at the close of the Closing Date (the “Pre-Closing Portion”) or as a result of the Section 338(h)(10) Election);
(ix) any Tax imposed as a result of the Reorganization; and
(x) any Tax or penalty imposed as a result of a Tax Return not being timely filed or furnished and accurate, if such Tax Return (a) was required to be filed, furnished or prepared by a Seller Group or Target Company and was required to be filed or furnished prior to the Closing Date or (b) is a Tax Return that Seller is responsible for filing or furnishing under this Agreement. In determining the Taxes for a Straddle Period allocable to the Pre-Closing Portion, except as provided in the next sentence, the allocation shall be made on the basis of an interim closing of the books as of the end of the Closing Date. In the case of (i) franchise Taxes based on capitalization, debt or shares of stock authorized, issued or outstanding, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, ad valorem Taxes and (iii) consultants' fees any Tax other than employment Taxes and other costs Taxes based on or related to income, the portion of defending or investigating any claim hereundersuch Taxes for a Straddle Period allocable to the Pre-Closing Portion shall be the amount of such Taxes for the Straddle Period (computed in accordance with past practice), whether accruedmultiplied by a fraction, absolute, contingent, known, unknown, or otherwise as the numerator of which is the number of such days in such taxable period ending on and including the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise and the denominator of which is the aggregate number of days in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closingtaxable period; provided, however, that if an indemnity claim any property, asset or other right of Target Company is asserted sold or otherwise transferred prior to the Closing, then ad valorem Taxes pertaining to such expiration dateproperty, but is contested asset or otherwise not resolved at such expiration date, this indemnity other right shall expire be attributed entirely to the Pre-Closing Portion.
(b) Except with respect to the matters contained in Sections 2.2.1(a), 2.2.1(b), 2.2.1(c), 2.2.2(b), 2.2.6 and 2.2.11, Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 6.2.1(a)(i) unless the aggregate amount of all such claim Losses exceeds $3,000,000 and then only upon resolution for Losses in excess of that amount. Except with respect to the matters contained in Sections 2.2.1(a), 2.2.1(b), 2.2.2(a), 2.2.2(b), 2.2.6 and 2.2.11, Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 6.2.1(a)(i) that exceed an aggregate amount equal to $50,000,000.
(c) Seller shall not be liable to the Buyer Indemnified Parties for any individual Loss of less than $25,000; provided, that (i) all repetitive Losses relating to a similar type of failure, action, inaction or violation of Applicable Law arising out of a substantially similar set of circumstances shall be treated as one Loss for purposes of the claim$25,000 de minimis limitation set forth in this Section 6.2.1(c) and (ii) it is understood that nothing in Section 6.2.1(b) or this Section 6.2.1(c) shall be deemed to establish in any way a materiality threshold for purposes of this Agreement.
Appears in 1 contract
Seller Indemnity. (a) Subject to the other provisions of Section 8.04 hereofthis Article VI, Seller hereby agrees that from and after the Closing it shall defendindemnify, indemnify defend and hold harmless Buyer, its Affiliates (including without limitation, after the Closing, the Target Companies) (the “Buyer Indemnified Parties”) from, against and in respect of any damages, losses, charges, liabilities, claims (and their respective directorsincluding, officerswithout limitation, employeesthird party claims), agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, payments, judgments, lossessettlements, damages (including without limitation punitiveassessments, exemplary or consequential damages, lost income and profits, interruptions of business and diminution diminutions in the value of stock), liabilitiesvalue, costs, expenses, Taxes, interests and expenses penalties (including, without limitation, reasonable attorneys’ and other professional fees, reasonable out-of-pocket disbursements and the reasonable fees and costs incurred in enforcing rights under this Article VI), but excluding any Retained Litigation Liability that is paid by the Seller or by any insurer pursuant to the requirements of Section 3.5) (collectively, “Losses”) imposed on, sustained, incurred or suffered by, or asserted against, any kind (including without limitation of the Buyer Indemnified Parties, to the extent arising or resulting from or incurred in connection with:
(i) interestany inaccuracy in or breach of any representation or warranty of Seller contained in or made pursuant to this Agreement or in any certificate delivered pursuant to this Agreement (reading such representations or warranties without regard to any materiality qualifier, penalties including “Material Adverse Effect,” contained therein (other than the representations and reasonable attorneys' fees warranties set forth in Section 2.1.4(ii));
(ii) any failure or breach of Seller to duly perform or observe any term, provision or covenant or agreement to be performed or observed by it pursuant to this Agreement;
(iii) all of the judicial or administrative actions, suits, investigations, inquiries or proceedings set forth on Exhibit D hereto and expensesall other judicial or administrative actions, suits, investigations, inquiries or proceedings commenced on or prior to the Closing Date against, with respect to or involving Target Company (“Retained Litigation”);
(iv) any events, facts, circumstances or omissions (collectively, “Events”) arising out of the ownership of the Target Companies or the operation or conduct of the business of Target Companies or otherwise involving the Target Companies on or prior to the Closing Date, including, without limitation, any judicial or administrative actions, suits, investigations, inquiries, proceedings or taxes arising or resulting from or incurred in connection with, or otherwise with respect to Events arising out of such matters and occurring on or prior to the Closing Date, regardless of when such claim is asserted or when such actions, suits, investigations, inquiries or proceedings are commenced;
(v) any Losses brought by former employees of the Target Companies related to events occurring or actions taken in connection with termination of employment of any such employee by Seller during the period from the date hereof until 60 days after the Closing Date; provided, however, the foregoing indemnity shall only apply to the extent such Loss relates to or arises out of actions taken or not taken by Seller in connection with the termination of such third party’s employment with a Target Company by Seller; and provided further, that the foregoing indemnity shall not apply to the extent such Loss arises out of actions taken or not taken by Buyer in violation of Applicable Law, actions by Buyer that were not authorized by Seller, or actions that were taken outside of the ordinary course of Buyer’s employment and authority as an employee with Seller.
(vi) any Tax imposed upon Seller, a Seller Group (except the Target Companies) or any Affiliate of Seller for any period;
(vii) any Tax for a Pre-Closing Period for which the Target Companies may be liable (x) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), (y) as a transferee or successor or (z) by contract;
(viii) any Tax imposed on the Target Companies for a Pre-Closing Period (including the portion of any Tax imposed on the Target Companies for a Straddle Period that is allocable to the portion of such period ending at the close of the Closing Date (the “Pre-Closing Portion”); or
(ix) any Tax or penalty imposed as a result of a Tax Return not being timely filed or furnished and accurate, if such Tax Return (a) was required to be filed, furnished or prepared by Seller Group or a Target Company and was required to be filed or furnished prior to the Closing Date or (b) is a Tax Return that Seller is responsible for filing or furnishing under this Agreement. In determining the Taxes for a Straddle Period allocable to the Pre-Closing Portion, except as provided in the next sentence, the allocation shall be made on the basis of an interim closing of the books as of the end of the Closing Date. In the case of (i) franchise Taxes based on capitalization, debt or shares of stock authorized, issued or outstanding, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, ad valorem Taxes and (iii) consultants' fees any Tax other than employment Taxes and other costs Taxes based on or related to income, the portion of defending or investigating any claim hereundersuch Taxes for a Straddle Period allocable to the Pre-Closing Portion shall be the amount of such Taxes for the Straddle Period (computed in accordance with past practice), whether accruedmultiplied by a fraction, absolute, contingent, known, unknown, or otherwise as the numerator of which is the number of such days in such taxable period ending on and including the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise and the denominator of which is the aggregate number of days in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closingtaxable period; provided, however, that if an indemnity claim any property, asset or other right of Target Company is asserted sold or otherwise transferred prior to the Closing, then ad valorem Taxes pertaining to such expiration dateproperty, but is contested asset or otherwise not resolved at such expiration date, this indemnity other right shall expire be attributed entirely to the Pre-Closing Portion.
(b) Except with respect to such claim the matters contained in Sections 2.1.1(a), 2.1.1(b), 2.1.2(a) and 2.1.2(b), Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 6.2.1(a)(i) unless the Losses therefrom exceed an aggregate amount equal to $1 million and then only upon resolution for Losses in excess of that amount. Except with respect to the matters contained in Sections 2.1.1(a), 2.1.1(b), 2.1.2(a) and 2.1.2(b), Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 6.2.1(a)(i) that exceed an aggregate amount equal to 5% of the claimPurchase Price.
(c) Seller shall not be liable to the Buyer Indemnified Parties for any individual Loss of less than $10,000; provided, that (i) all repetitive Losses relating to a similar type of failure, action, inaction or violation of Applicable Law arising out of a substantially similar set of circumstances shall be treated as one Loss for purposes of the $10,000 de minimis limitation set forth in this Section 6.2.1(c) and (ii) it is understood that nothing in Section 6.2.1(b) or this Section 6.2.1(c) shall be deemed to establish in any way a materiality threshold for purposes of this Agreement.
Appears in 1 contract
Seller Indemnity. (a) Subject to the other provisions of Section 8.04 hereofthis Article VI, Seller hereby agrees that from and after the Closing it shall defendindemnify, indemnify defend and hold harmless Buyer Buyer, its Affiliates (including, without limitation, after the Closing, Target Company) and their respective directorsRepresentatives (the "Buyer Indemnified Parties") from, officers, employees, agents, affiliates, successors against and assigns) from and against in respect of any and all damages, losses, charges, liabilities, claims (including, without limitation, third party claims), demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, payments, judgments, lossessettlements, damages (including without limitation punitiveassessments, exemplary or consequential damages, lost income and profits, interruptions of business and diminution diminutions in the value of stock), liabilitiesvalue, costs, expenses, Taxes, interests and expenses penalties (including, without limitation, reasonable attorneys' and other professional fees, reasonable out of pocket disbursements and the reasonable fees and costs incurred in enforcing rights under this Article VI) (collectively, "Losses") imposed on, sustained, incurred or suffered by, or asserted against, any kind (including without limitation of the Buyer Indemnified Parties, to the extent arising or resulting from or incurred in connection with or otherwise with respect to each of the following:
(i) interestany inaccuracy in or breach of any representation or warranty of Seller contained in or made pursuant to this Agreement or in any certificate delivered pursuant to this Agreement (reading such representations or warranties without regard to any materiality qualifier, penalties including "Material Adverse Effect," contained therein (other than the representations and reasonable attorneys' fees warranties set forth in Section 2.2.5(ii)));
(ii) any failure or breach of Seller to duly perform or observe any term, provision or covenant or agreement to be performed or observed by it pursuant to this Agreement;
(iii) all of the judicial or administrative actions, suits, investigations, inquiries or proceedings Disclosed in Section 2.2.16 of the Seller Disclosure Schedule and expensesall other judicial or administrative actions, suits, investigations, inquiries or proceedings commenced on or prior to the Closing Date against, with respect to or involving Target Company (collectively, the "Retained Litigation");
(iv) any events, facts, circumstances or omissions (collectively, "Events") arising out of the ownership of Target Company or the operation or conduct of the business of Target Company or otherwise involving Target Company on or prior to the Closing Date, including, without limitation, any judicial or administrative actions, suits, investigations, inquiries, proceedings or taxes arising or resulting from or incurred in connection with, or otherwise with respect to Events arising out of such matters and occurring on or prior to the Closing Date, regardless of when such claim is asserted or when such actions, suits, investigations, inquiries or proceedings are commenced;
(v) the Excluded Assets, the Excluded Liabilities (regardless of whether or not Seller Disclosure Schedule discloses any such Excluded Liability) and the Reorganization;
(vi) any Tax imposed upon Seller, a Seller Group (except Target Company) or any Affiliate of Seller (except Target Company) for any period;
(vii) any Tax for a Pre-Closing Period for which Target Company may be liable (x) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), (y) as a transferee or successor or (z) by contract;
(viii) any Tax imposed on Target Company for a Pre-Closing Period (including the portion of any Tax imposed on Target Company for a Straddle Period that is allocable to the portion of such period ending at the close of the Closing Date (the "Pre-Closing Portion") or as a result of the Section 338(h)(10) Election);
(ix) any Tax imposed as a result of the Reorganization; and
(x) any Tax or penalty imposed as a result of a Tax Return not being timely filed or furnished and accurate, if such Tax Return (a) was required to be filed, furnished or prepared by a Seller Group or Target Company and was required to be filed or furnished prior to the Closing Date or (b) is a Tax Return that Seller is responsible for filing or furnishing under this Agreement. In determining the Taxes for a Straddle Period allocable to the Pre-Closing Portion, except as provided in the next sentence, the allocation shall be made on the basis of an interim closing of the books as of the end of the Closing Date. In the case of (i) franchise Taxes based on capitalization, debt or shares of stock authorized, issued or outstanding, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, ad valorem Taxes and (iii) consultants' fees any Tax other than employment Taxes and other costs Taxes based on or related to income, the portion of defending or investigating any claim hereundersuch Taxes for a Straddle Period allocable to the Pre-Closing Portion shall be the amount of such Taxes for the Straddle Period (computed in accordance with past practice), whether accruedmultiplied by a fraction, absolute, contingent, known, unknown, or otherwise as the numerator of which is the number of such days in such taxable period ending on and including the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise and the denominator of which is the aggregate number of days in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closingtaxable period; provided, however, that if an indemnity claim any property, asset or other right of Target Company is asserted sold or otherwise transferred prior to the Closing, then ad valorem Taxes pertaining to such expiration dateproperty, but is contested asset or otherwise not resolved at such expiration date, this indemnity other right shall expire be attributed entirely to the Pre-Closing Portion.
(b) Except with respect to the matters contained in Sections 2.2.1(a), 2.2.1(b), 2.2.1(c), 2.2.2(b), 2.2.6 and 2.2.11, Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 6.2.1(a)(i) unless the aggregate amount of all such claim Losses exceeds $3,000,000 and then only upon resolution for Losses in excess of that amount. Except with respect to the matters contained in Sections 2.2.1(a), 2.2.1(b), 2.2.2(a), 2.2.2(b), 2.2.6 and 2.2.11, Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 6.2.1(a)(i) that exceed an aggregate amount equal to $50,000,000.
(c) Seller shall not be liable to the Buyer Indemnified Parties for any individual Loss of less than $25,000; provided, that (i) all repetitive Losses relating to a similar type of failure, action, inaction or violation of Applicable Law arising out of a substantially similar set of circumstances shall be treated as one Loss for purposes of the claim.$25,000 de minimis limitation set forth in this Section 6.2.1(c) and (ii) it is understood that nothing in Section 6.2.1(b) or this Section 6.2.1
Appears in 1 contract
Samples: Stock Purchase Agreement (Td Ameritrade Holding Corp)
Seller Indemnity. Subject to the provisions terms and conditions of Section 8.04 hereofthis Article X, Seller shall defendhereby unconditionally agrees to indemnify, indemnify defend and hold harmless Buyer (Purchaser and their respective its officers, directors, officers, employeesstockholders, agents, affiliates, successors attorneys and assigns) affiliates harmless from and against any and all demandslosses, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interestdemands, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock)penalties, liabilities, costs, and expenses of any kind (including without limitation (i) interestdamages, penalties and reasonable attorneys' fees and expensesexpenses (collectively, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder"Damages"), asserted against or incurred by Purchaser by reason of or in any manner resulting from:
(a) A breach by Seller of any representation, warranty or covenant contained herein or in any agreement executed pursuant hereto;
(b) Any and all general liability claims arising out of or relating to occurrences of any nature relating to Seller's business prior to the Closing, whether accrued, absolute, contingent, known, unknownany such claims are asserted prior to or after the Closing;
(c) Any obligation or liability under or related to any employee compensation or any employee benefit plans or the termination thereof;
(d) Any tax filing or return or payment made, or otherwise position taken in the payment or non-payment of any tax, by Seller which any governmental authority challenges and which results in an assertion of Damages against Purchaser;
(e) Any failure to comply with all applicable bulk transfer laws or fraudulent or preferential laws of the United States of America or the State of South Carolina;
(f) Claims arising from liabilities or obligations not expressly assumed by Purchaser in this Agreement;
(g) Claims and liabilities arising from or in any manner relating to pawn loans missing as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:which are listed on Exhibit E;
(ah) any period Customer claims attributable or periods relating to events or omissions of Seller ending prior to the Closing and which involve Date, whether any such claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents are asserted prior to Closingor after the Closing Date;
(i) Claims made by the Bureau of Alcohol, or Tobacco and Firearms arising out of the operation conduct of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;Date; or
(bj) any breach of any representation and warranty contained in this Agreement Claims relating to federal, state or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claimlocal taxes.
Appears in 1 contract
Samples: Asset Purchase Agreement (First Cash Financial Services Inc)
Seller Indemnity. Subject to Seller hereby gives Buyer the provisions of Section 8.04 hereoffollowing indemnities, Seller shall defend, indemnify and hold harmless Buyer (and their respective directors, officers, employees, agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise effective as of the Date of Closing, which, subject to the limitations set forth herein, shall be the sole and exclusive obligations of Seller from and after Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in with respect ofto the Property:
(a) Seller shall indemnify, defend and hold Buyer and the other Buyer Indemnitees harmless from and against any period Losses imposed upon, incurred or periods suffered by Buyer or any of the Buyer Indemnitees that results from, relates to or arises out of: (i) the breach or inaccuracy of any representation or warranty made by Seller in Section 6.6 of this Agreement or in the Seller Closing Documents; (ii) the breach or default by Seller of any of the covenants, agreements or obligations of Seller ending which expressly survive Closing under the terms of this Agreement; (iii) claims made by any third party that relate to any goods or services contracted for or agreed to by Seller or Seller's officers, directors, partners, employees, agents or representatives, except for the work assumed by Buyer pursuant to Section 6.12; and (iv) any tort, negligent act or omission, occurrence or accident occurring at any time prior to the Closing and which involve any claims against Seller, or their respective properties or assets, Date relating to actions or inactions of Seller or its officersthe Property, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that such agreement by Seller to so indemnify, defend and hold Buyer harmless: (1) shall be inapplicable to any claims, suits, actions, damages, costs, charges and expenses attributable to any breach or inaccuracy of any representation or warranty made by Seller in Section 6.6 of this Agreement or in the Seller Closing Documents if an indemnity claim is asserted prior and to such expiration datethe extent Buyer has actual knowledge on or before the Closing (including, but is contested or otherwise not resolved at such expiration datewithout limitation, this indemnity shall expire with respect to such claim only upon resolution of the claim.any information disclosed on Estoppel Certificates); and
Appears in 1 contract
Samples: Real Estate Purchase Agreement (General Growth Properties Inc)
Seller Indemnity. Subject to the provisions of Section 8.04 hereof, Seller shall defend, indemnify and hold harmless Buyer and Parent (and their respective directors, officers, employees, agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, and expenses of any kind (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Buyer, Parent, Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) any claim by a broker, agent, or finder alleged to be employed by, representing, or otherwise involved with Seller in connection with this Agreement, except for the seven percent (7%) commission to be paid to F.M. Investments or its assigns, pursuant to the authorization of Seller's Board of Directors, which shall be paid from the consideration described in Section 1.04. The remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claim.
Appears in 1 contract
Seller Indemnity. (a) Subject to the other provisions of Section 8.04 hereofthis Article VI, Seller hereby agrees that from and after the Closing it shall defendindemnify, indemnify defend and hold harmless Buyer, its Affiliates (including without limitation, after the Closing, the Target Companies) (the “Buyer Indemnified Parties”) from, against and in respect of any damages, losses, charges, liabilities, claims (and their respective directorsincluding, officerswithout limitation, employeesthird party claims), agents, affiliates, successors and assigns) from and against any and all demands, claims, payments, defenses, obligations, recoveries, deficiencies, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, payments, judgments, lossessettlements, damages (including without limitation punitiveassessments, exemplary or consequential damages, lost income and profits, interruptions of business and diminution diminutions in the value of stock), liabilitiesvalue, costs, expenses, Taxes, interests and expenses penalties (including, without limitation, reasonable attorneys’ and other professional fees, reasonable out-of-pocket disbursements and the reasonable fees and costs incurred in enforcing rights under this Article VI), but excluding any Retained Litigation Liability that is paid by the Seller or by any insurer pursuant to the requirements of Section 3.5) (collectively, “Losses”) imposed on, sustained, incurred or suffered by, or asserted against, any kind (including without limitation of the Buyer Indemnified Parties, to the extent arising or resulting from or incurred in connection with:
(i) interestany inaccuracy in or breach of any representation or warranty of Seller contained in or made pursuant to this Agreement or in any certificate delivered pursuant to this Agreement (reading such representations or warranties without regard to any materiality qualifier, penalties including “Material Adverse Effect,” contained therein (other than the representations and reasonable attorneys' fees warranties set forth in Section 2.1.4(ii));
(ii) any failure or breach of Seller to duly perform or observe any term, provision or covenant or agreement to be performed or observed by it pursuant to this Agreement;
(iii) all of the judicial or administrative actions, suits, investigations, inquiries or proceedings set forth on Exhibit C hereto and expensesall other judicial or administrative actions, suits, investigations, inquiries or proceedings commenced on or prior to the Closing Date against, with respect to or involving Target Company (“Retained Litigation”);
(iv) any events, facts, circumstances or omissions (collectively, “Events”) arising out of the ownership of the Target Companies or the operation or conduct of the business of Target Companies or otherwise involving the Target Companies on or prior to the Closing Date, including, without limitation, any judicial or administrative actions, suits, investigations, inquiries, proceedings or taxes arising or resulting from or incurred in connection with, or otherwise with respect to Events arising out of such matters and occurring on or prior to the Closing Date, regardless of when such claim is asserted or when such actions, suits, investigations, inquiries or proceedings are commenced;
(v) any Losses brought by former employees of the Target Companies related to events occurring or actions taken in connection with termination of employment of any such employee by Seller during the period from the date hereof until 60 days after the Closing Date; provided, however, the foregoing indemnity shall only apply to the extent such Loss relates to or arises out of actions taken or not taken by Seller in connection with the termination of such third party’s employment with a Target Company by Seller; and provided further, that the foregoing indemnity shall not apply to the extent such Loss arises out of actions taken or not taken by Buyer in violation of Applicable Law, actions by Buyer that were not authorized by Seller, or actions that were taken outside of the ordinary course of Buyer’s employment and authority as an employee with Seller;
(vi) any Tax imposed upon Seller, a Seller Group (except the Target Companies) or any Affiliate of Seller for any period;
(vii) any Tax for a Pre-Closing Period for which the Target Companies may be liable, (x) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), (y) as a transferee or successor or (z) by contract;
(viii) any Tax imposed on the Target Companies for a Pre-Closing Period (including the portion of any Tax imposed on the Target Companies for a Straddle Period that is allocable to the portion of such period ending at the close of the Closing Date (the “Pre-Closing Portion”); or
(ix) any Tax or penalty imposed as a result of a Tax Return not being timely filed or furnished and accurate, if such Tax Return (a) was required to be filed, furnished or prepared by Seller Group or a Target Company and was required to be filed or furnished prior to the Closing Date or (b) is a Tax Return that Seller is responsible for filing or furnishing under this Agreement. In determining the Taxes for a Straddle Period allocable to the Pre-Closing Portion, except as provided in the next sentence, the allocation shall be made on the basis of an interim closing of the books as of the end of the Closing Date. In the case of (i) franchise Taxes based on capitalization, debt or shares of stock authorized, issued or outstanding, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, ad valorem Taxes and (iii) consultants' fees any Tax other than employment Taxes and other costs Taxes based on or related to income, the portion of defending or investigating any claim hereundersuch Taxes for a Straddle Period allocable to the Pre-Closing Portion shall be the amount of such Taxes for the Straddle Period (computed in accordance with past practice), whether accruedmultiplied by a fraction, absolute, contingent, known, unknown, or otherwise as the numerator of which is the number of such days in such taxable period ending on and including the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise and the denominator of which is the aggregate number of days in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closingtaxable period; provided, however, that if an indemnity claim any property, asset or other right of Target Company is asserted sold or otherwise transferred prior to the Closing, then ad valorem Taxes pertaining to such expiration dateproperty, but is contested asset or otherwise not resolved at such expiration date, this indemnity other right shall expire be attributed entirely to the Pre-Closing Portion.
(b) Except with respect to such claim the matters contained in Sections 2.1.1(a), 2.1.1(b), 2.1.2(a) and 2.1.2(b), Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 6.2.1(a)(i) unless the Losses therefrom exceed an aggregate amount equal to $1 million and then only upon resolution for Losses in excess of that amount. Except with respect to the matters contained in Sections 2.1.1(a), 2.1.1(b), 2.1.2(a) and 2.1.2(b), Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 6.2.1(a)(i) that exceed an aggregate amount equal to 5% of the claimPurchase Price.
(c) Seller shall not be liable to the Buyer Indemnified Parties for any individual Loss of less than $10,000; provided, that (i) all repetitive Losses relating to a similar type of failure, action, inaction or violation of Applicable Law arising out of a substantially similar set of circumstances shall be treated as one Loss for purposes of the $10,000 de minimis limitation set forth in this Section 6.2.1(c) and (ii) it is understood that nothing in Section 6.2.1(b) or this Section 6.2.1(c) shall be deemed to establish in any way a materiality threshold for purposes of this Agreement.
Appears in 1 contract
Seller Indemnity. Subject Seller agrees to the provisions of Section 8.04 hereofindemnify, Seller shall defend, indemnify save and hold harmless each Buyer (and their respective directors, officers, employees, agents, affiliates, successors and assigns) lndemnitee from and against any and all demandsClaims which may be alleged or incurred by a Buyer Indemnitee (regardless of when same are suffered or incurred): (a) arising directly or indirectly out of or in any way connected with the purchase, claimsregistration, paymentsperformance, defensestransportation, management, sale, inspection, testing, delivery, leasing, replacement, removal or redelivery , condition, ownership, manufacture, design, maintenance, service, repair, overhaul, improvement, modification or alteration, possession, control, use, operation or other activity of the Purchased Assets by Seller or relating to loss or destruction of or damage to any property, or death or injury to any person caused by, relating to or arising from or out of (in each case whether directly or indirectly) any of the foregoing matters, or whether it arises out of or is attributable to any act or omission or otherwise of Seller and in respect of or to the extent attributable to the period prior to Delivery (but excluding Delivery); or (b) as a result of the breach by Seller of any of its obligations, recoveriesrepresentations or warranties hereunder or any documents entered into in connection therewith; or (c) for taxes in any jurisdiction, deficienciesincluding interest and penalties thereon, fines, penalties, interest, assessments, actions, liens, causes of action, suits, proceedings, judgments, losses, damages imposed on or in connection with the Purchased Assets and which are imposed with regard to the time period prior to Delivery (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution but excluding Delivery); Provided that the indemnities from the Seller contained in this Section 4.3 shall not extend to any Claims to the value of stock), liabilities, costs, and expenses of any kind (including without limitation extent that such Claims:
(i) interestarise out of any act, penalties and reasonable attorneys' fees and expensesomission, event or circumstance occurring in respect of the Purchased Assets after Delivery;
(ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and are caused by the willful misconduct or gross negligence of any of the Buyer Indemnitees; or
(iii) consultants' fees and other costs are the result of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred a failure by Buyer to comply with any of its obligations under this Agreement or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:
(a) any period or periods of Seller ending prior to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and or warranty of Buyer contained in this Agreement not being true and correct. Any payment or indemnity made under this provision by either party shall include any misrepresentation in amount necessary to hold the Seller Indemnitee (or omission Buyer Indemnitee, as the case may be) harmless on the part of Seller contained in any certificate furnished or an after-tax basis from all withholding taxes and other taxes, fees and other charges required to be furnished paid with respect to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any such payment or indemnity claim covered hereby under all applicable laws. Each party shall be limited give prompt written notice to the recovery by Buyer other party of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closingany liability for which it is, or may be, liable under this provision; provided, however, that if an indemnity claim is asserted prior failure to give such expiration date, but is contested or otherwise notice will not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution terminate any of the claimrights of such indemnitee hereunder. Notwithstanding anything to the contrary in this Agreement, absent fraud, the parties agree that the indemnification set forth in this Section 4 shall be the sole and exclusive remedy for breaches of the representations, warranties, covenants and agreements described herein.
Appears in 1 contract
Seller Indemnity. Subject (a) Other than in respect of Taxes (which shall be governed solely by Article X hereof) and subject to the provisions and limitations of Section 8.04 hereofthis Article IX, Seller shall defendagrees to indemnify, indemnify defend and hold harmless Buyer (Purchaser and their respective its Affiliates, directors, officers, employees, agents, affiliates, successors officers and assigns) employees upon demand harmless following the Closing Date from and against any Damage, Claim, cost, loss, interest, penalty, deficiency, or expense, including, without limitation, reasonable attorneys', accountants' and other investigatory fees and out-of-pocket expenses, actually expended or incurred by Purchaser or any of its Affiliates (which costs shall not include any expenses associated with salaries or overhead related to employees of Purchaser) or the Company ("Damages"), arising out of or resulting from: (i) any breach of representation or warranty (including any misrepresentations in, or omission from, any certificate or other document furnished or to be furnished by Seller to Purchaser hereunder), or nonfulfillment of any covenant or agreement on the part of Seller or the Company under this Agreement); (ii) any negligent act, error or omission of Seller or the Company prior to the Closing relating to the Business; (iii) any Claim arising out of or resulting from the conduct of the Business by the Company prior to the Closing Date, any premium, charge or assessment imposed upon or against the Company by any regulatory agency or authority or insurance guaranty fund in respect of any period of time prior to the Closing Date, or any other event or condition which occurred or existed prior to the Closing, whether or not such Liability or expense was in existence or was accrued or contingent or known or unknown at the time of the Closing; (iv) any and all demands, such claims, paymentslosses, defensesjudgments, obligationsawards, recoveriesdamages, deficienciessettlements, finescosts, interest, penalties, deficiencies and expenses which are brought, levied or held against Purchaser, the Company and any of their Affiliates resulting from or relating to the employment of any person by, or the provision of services by any person to, the Company, including by way of illustration and not by way of limitation, claims based upon discrimination on the basis of race, gender, color, religion, national origin, age, disability, or other protected classification, the failure to pay any wages, compensation or other benefits payable or due to any such person, the failure to deduct or collect any and all employment taxes and withholdings, the failure to recognize veteran's rights or the harassment of any person, occurring on or before the Closing Date; (v) any claims, losses, judgments, awards, damages, settlements, costs, interest, assessmentspenalties, deficiencies and expenses which are brought, levied or held against the Company resulting from or relating to any "employee benefit plan," within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and any other employee benefit, fringe benefit, deferred or incentive compensation plan, fund, program, policy, arrangement or practice (each a "Plan") which has ever been maintained, sponsored or contributed to, or to which contributions were ever required to be made by, Seller, the Company or any person treated as a single employer with Seller or the Company under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, with respect to any act or omission occurring at any time (other than any claim relating to, resulting from or arising out of any Plan of Purchaser or any of its Affiliates and involving any act or omission after the Closing Date); and (vi) all third-party actions, liens, causes of action, suits, proceedings, demands, assessments, judgments, losses, damages (including without limitation punitive, exemplary or consequential damages, lost income and profits, interruptions of business and diminution in the value of stock), liabilities, costs, costs and expenses of incident to any kind (including without limitation (i) interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their rights to indemnification hereunder, and (iii) consultants' fees and other costs of defending or investigating any claim hereunder), whether accrued, absolute, contingent, known, unknown, or otherwise as of the Closing Date or thereafter asserted against, imposed upon or incurred by Buyer or its directors, officers, employees, agents, affiliates, successors or assigns by reason of, resulting from, arising out of, based upon, awarded or asserted against or otherwise in respect of:
foregoing (a) any period or periods and all of Seller ending prior which are hereafter referred to the Closing and which involve any claims against Seller, or their respective properties or assets, relating to actions or inactions of Seller or its officers, directors, shareholder, employees or agents prior to Closing, or the operation of the business of Seller prior to the Closing unless such liability relates to an Assumed Obligation;
(b) any breach of any representation and warranty contained in this Agreement or any misrepresentation in or omission on the part of Seller contained in any certificate furnished or to be furnished to Buyer by Seller pursuant to this Agreement; and
(c) the remedy and right of recovery for any indemnity claim covered hereby shall be limited to the recovery by Buyer of the consideration paid hereunder. The indemnity herein contained shall expire one year following the Closing; provided, however, that if an indemnity claim is asserted prior to such expiration date, but is contested or otherwise not resolved at such expiration date, this indemnity shall expire with respect to such claim only upon resolution of the claimas a "Claim").
Appears in 1 contract
