Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party. 8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure. 8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure. 8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns. 8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 5 contracts
Samples: Agreement to Acquire Shares (Imaging Technologies Corp/Ca), Agreement to Acquire Shares (Imaging Technologies Corp/Ca), Agreement to Acquire Shares (Greenland Corp)
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement Agreement, or in any schedule, certificate, document or statement delivered pursuant hereto, shall survive (and not be affected in any respect by) the Closing, any investigation conducted by any party hereto shall be deemed to be material and to have been relied upon by any information which any party may receive. Notwithstanding the parties hereto. All foregoing, the survival of the representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be or made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party pursuant to this Agreement shall terminate (absent fraud on, and no claim or intentional misrepresentation) one year from action with respect thereto may be brought after, the Closing Date. Any claim for indemnification that is asserted within one year third anniversary of the Closing Date Effective Date, except that the representations and warranties contained in Sections 5(g) and 5(p) of this Agreement shall survive until resolved or judicially determinedindefinitely. The representations and warranties contained in for which survival terminates on the third anniversary of the Effective Date, and the liability of any party with respect thereto pursuant to this Agreement Section 10, shall not be affected by terminate with respect to any investigationclaim, verification whether or examination by any not fixed as to liability or liquidated as to amount, with respect to which the appropriate party hereto or by anyone on behalf has been given written notice setting forth the facts upon which the claim for indemnification is based prior to the third anniversary of any such partythe Effective Date, as the case may be.
8.2.1 GLCP (a) The parties shall indemnify each other as set forth below:
(1) Subject to the provisions of this Section 10, each of Xxxxx, Shiprock and Shiprock Sub (individually and collectively, the “Shiprock Group”) shall jointly and severally indemnify and hold harmless Duska and defend ITEC Duska’s past, present and its successors future officers, directors, stockholders, employees, attorneys, and assigns agents (and after the Closing, Xxxxx shall also indemnify Shiprock) (collectively, the “Duska Indemnified Parties”) from and against any and all claims related toLosses (as defined below) including, caused by without limitation, any reasonable legal expenses to the extent arising from, relating to or arising from (a) any misrepresentation or breach otherwise in respect of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, inaccuracy or breach of any representation or warranty of the Shiprock Group contained in Sections 5 or 13 of this Agreement (as of the date hereof, or as of the Closing Date and Effective Date) or of any representation, warranty or failure to fulfill statement made in any covenant schedule, certificate document or agreement instrument delivered by the Shiprock Group or any officer or any of ITEC contained herein them at or in connection with the Closing, in each case without giving effect to any agreement or other document delivered pursuant heretomateriality qualification (including qualifications indicating accuracy in all material respects), or (ii) the breach by the Shiprock Group, of or failure by the Shiprock Group to perform any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach its covenants or failure.
8.3 The party seeking indemnification under agreements contained in this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, Agreement; provided, however, that an Indemnified Party's failure to give such notice (A) no member of the Shiprock Group shall not impair or otherwise affect such Indemnified Party's right to indemnification except be responsible for any Losses with respect to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained matters referred to in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms clauses (i) or (ii) of this Agreement or applicable lawSection 10(a) until the cumulative aggregate amount of all such Losses exceeds $10,000, in which event the Shiprock Group shall then be liable for all such cumulative aggregate Losses, including the first $10,000. All indemnification rights shall be deemed to apply in favor Each member of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors Shiprock Group specifically acknowledges and assigns.
8.4 The agrees that any Duska Indemnified Party shall not settle or compromise may proceed against any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent member of the Indemnifying Party Shiprock Group under this Section 10 without contemporaneously, or at any time, proceeding against any other member of the Shiprock Group. As used herein, “Losses” shall mean any and all demands, claims, complaints, actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities or obligations (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or including those arising out of any claim by a person other than action, such as any settlement or compromise thereof or judgment or award therein) and any fees, costs and expenses related thereto, and the Indemnified Partyterm “legal expenses” shall mean the fees, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense costs and expenses of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest kind incurred by any party indemnified herein and its obligation to indemnify the Indemnified Party counsel in investigating, preparing for, defending against or providing evidence, producing documents or taking other action with respect to the claims any threatened or asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 4 contracts
Samples: Agreement and Plan of Reorganization (Duska Therapeutics, Inc.), Agreement and Plan of Reorganization (Duska Therapeutics, Inc.), Agreement and Plan of Reorganization (Kapoor John N)
Survival and Indemnification. 8.1 All 7.1 The representations, warranties, covenants and agreements contained in this Agreement or in any document delivered pursuant hereto shall be deemed herein to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made performed or performed complied with after the Closing shall survive without limitation as to time, unless the Closing covenant or agreement specifies a term, in which case such covenant or agreement shall survive until made or performed the expiration of such specified term.
7.2 From and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of , the Closing Date Company, and the Purchaser, as the case may be, shall survive until resolved or judicially determined. The representations indemnify and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns the other (the party seeking indemnification being referred to as the “Indemnified Party”) from and against any and all claims related toclaims, caused by losses, liabilities and damages, including, without limitation, amounts paid in settlement, reasonable costs of investigation and reasonable fees and disbursements of counsel, arising out of or arising resulting from (a) the inaccuracy of any misrepresentation representation or warranty, or the breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreementagreement, contained herein or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement instrument or other document certificate delivered pursuant hereto, or in the case of the Company, any claim arising from any action prior to the Closing Date, by the party against whom indemnification is sought (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failurethe “Indemnifying Party”).
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 7.3 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of promptly notify the Indemnifying Party (which consent shall not be unreasonably withheld)in writing of any claim for indemnification, unless legal action shall have been instituted against specifying in detail the basis of such claim, the facts pertaining thereto and, if known, the amount, or an estimate of the amount, of the liability arising therefrom. The Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter all information and documentation necessary to support and verify the claim asserted and the Indemnifying Party shall not have taken be given reasonable access to all books and records in the possession or control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, Party or any of its affiliates which the Indemnifying Party shall, upon written notice reasonably determines to the Indemnified Party, assume the defense of any such claim without prejudice be related to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Pop N Go Inc)
Survival and Indemnification. 8.1 All representationsThe representations and warranties of the Purchasers and the Company contained herein shall survive for a period of eighteen months following Closing (the “Survival Period”). In consideration of the Purchasers’ execution and delivery of this Agreement and acquiring the Series C Shares and Warrants hereunder and in addition to all of the Company’s other obligations under this Agreement, warrantiesthe Company shall, covenants and agreements shall cause the Company Group to, defend, protect, indemnify and hold harmless the Purchasers and all of their Affiliates, officers, managers, advisors, directors, employees and agents (including those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all Claims, losses, costs, penalties, fees, Liabilities, damages and expenses (including costs of suit and all reasonable attorneys’ fees and expenses) in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought) or other liabilities, losses, or diminution in value (the “Indemnified Liabilities”), incurred by the Indemnitees or any of them as a result of, or arising out of, or relating to (i) the breach of any representation or warranty contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by Related Document, (ii) the parties hereto. All representations and warranties breach of any promise, agreement or covenant contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant heretoRelated Document, or (biii) the execution, delivery, performance or enforcement of this Agreement and any other instrument, document or agreement executed pursuant hereto by any of the Indemnitees. The Company shall, and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related cause the Company Group to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (reimburse the "Indemnitees for the Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect Liabilities as such Indemnified Party's right to indemnification except to Liabilities are incurred. To the extent that the Indemnifying Party demonstrates actual damage caused foregoing undertaking by such failure. All rights contained in this article are cumulative the Company may be unenforceable for any reason, the Company shall, and are in addition to all other rights and remediesshall cause the Company Group to, which are otherwise available, pursuant make the maximum contribution to the terms payment and satisfaction of this Agreement or each of the Indemnified Liabilities which is permissible under applicable law. All The indemnification rights shall be deemed to apply provided for under this Agreement will remain in favor full force and effect regardless of any investigation made by or on behalf of the indemnified party's officersIndemnitee or any officer, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle director or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control controlling Person of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out Indemnitee and will survive the transfer of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basisSecurities.
Appears in 2 contracts
Samples: Series C Convertible Preferred Stock and Warrant Purchase Agreement (Abry Mezzanine Partners Lp), Series C Convertible Preferred Stock and Warrant Purchase Agreement (SoftBrands, Inc.)
Survival and Indemnification. 8.1 (a) All representationsof the covenants, warrantiesagreements, covenants and agreements indemnification obligations contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material Agreement, and to have been relied upon by the parties hereto. All representations and warranties contained set forth in this Agreement Sections 5.1, 5.2, 5.3, and 5.4, and 6.1, 6.2, and 6.3 shall survive the Closing forever; (ii) the representations and warranties set forth in Section 5.12 shall survive the Closing until the date that is 60 days after the expiration of the applicable statute of limitations; (iii) the representations and warranties set forth in Section 5.5 shall survive the Closing until the expiration of the applicable statute of limitations set forth in Section 18(c) of the Securities Exchange Act; and (iv) all other representations and warranties shall survive the Closing for a period of 18 months following the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determinedClosing. The representations and warranties contained of the parties shall in this Agreement shall not no way be affected by any investigationinvestigation made by, verification or examination by any party hereto or by anyone on behalf of of, any such partyother party hereto.
8.2.1 GLCP shall (b) The Company hereby agrees to indemnify and hold harmless and defend ITEC the Purchaser and its successors Affiliates and assigns each of their respective stockholders, directors, officers, employees, and agents from and against any and all claims related claims, expenses (including reasonable attorney's fees and expenses), losses, fines, and other damages suffered or incurred by any such party and arising out of, relating to, caused or in connection with: (i) the failure of any representation or warranty made by the Company in this Agreement to be true, accurate, and complete as of the date when made; or arising from (aii) any misrepresentation or breach of warranty or the failure by the Company to fulfill perform and comply with any covenant or agreement contained in this Agreement or any of GLCP the Transaction Documents. Notwithstanding anything to the contrary herein, the Company shall not be obligated to indemnify any Person hereunder unless the aggregate amount of all Losses giving rise to the claim for indemnification exceeds $100,000, in which event, the Persons entitled to indemnification hereunder shall recover the entire amount of all such Losses from the first dollar (regardless of such threshold); provided, however, that the aggregate indemnification liability of the Company hereunder shall not exceed an amount equal to the Aggregate Purchase Price plus all reasonable attorney's fees and the costs and expenses incurred in connection with the enforcement of the indemnity provisions of this Agreement; provided further, however, that no monetary threshold or limitation set forth in this Agreementsection shall apply in the event of fraud or intentional misrepresentation by, or any other misrepresentationon behalf of, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failurethe Company.
8.2.2 ITEC shall indemnify, (c) The Purchaser hereby agrees to indemnify and hold harmless and defend GLCP the Company and its representativesAffiliates and each of their respective stockholders, directors, officers, membersemployees, managers, directors, affiliates, successors and assigns, agents from and against any and all claims related claims, expenses (including reasonable attorney's fees and expenses), losses, fines, and other damages suffered or incurred by any such party and arising out of, relating to, caused by or arising from in connection with: (i) the failure of any misrepresentation, breach of representation or warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (by the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained Purchaser in this article are cumulative and are in addition Agreement to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.be
Appears in 2 contracts
Samples: Purchase Agreement (Universal Automotive Industries Inc /De/), Purchase Agreement (Venture Equities Management Inc)
Survival and Indemnification. 8.1 All (a) Except as otherwise provided herein, the several representations, warranties, covenants covenants, and agreements of the parties contained in this Agreement (or in any document delivered pursuant hereto in connection herewith) shall be deemed to have been made on the Closing Date, shall be deemed to be material and to have been relied upon by Buyer and the parties hereto. All representations and warranties contained in this Agreement Winlit Group notwithstanding any investigation made by Buyer or members of the Winlit Group, shall survive the Closing Date and shall remain operative and in full force and effect for the applicable statute a period of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from two years following the Closing Date. Any , except as to any matters with respect to which a bona fide written claim for indemnification that is asserted within one year has been made or an action at law or in equity shall have commenced before such date, in which event survival of the Closing Date applicable representations and warranties shall continue (but only with respect to, and the extent of, such claim) until the final resolution of such claim or action including all applicable periods for appeal; provided, however, the representations and warranties of the Winlit Group contained in Section 3.6, 3.14 and 3.16 hereof shall survive until resolved 90 days following the expiration of all applicable statutes of limitation (including periods of extension, whether automatic or judicially determined. The permissive) applicable to claims arising from such representations and warranties warranties; and provided further, that the respective, covenants and agreements of Buyer and the Winlit Group contained in this Agreement Sections 6, 7, and 8 hereof shall not be affected by continue without any investigation, verification or examination by any party hereto or by anyone on behalf of any such partytime limitation.
8.2.1 GLCP (b) Each of the members of the Winlit Group, jointly and severally, shall indemnify and hold harmless and defend ITEC Buyer and its affiliates and their respective officers, directors, managers, members, stockholders, employees, agents and successors and assigns harmless from and against (i) any and all claims related toloss, caused by cost, liability, damage and expense (including legal fees, expert costs and other expenses incident thereto) (each a "Loss" and, collectively, "Losses") arising out of or arising resulting from (a) any inaccuracy, misrepresentation or breach or non-fulfillment of warranty or failure to fulfill any representation, warranty, covenant or agreement of GLCP set forth in any member of the Winlit Group under this Agreement, Agreement or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant heretoto Buyer in connection herewith, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims liabilities and obligations of third parties made the members of the Winlit Group (other than the Assumed Obligations) of any nature whatsoever, whether accrued, absolute, fixed, contingent, or otherwise known or unknown to the members of the Winlit Group, including, but not limited to, Losses with respect to any liability of the members of the Winlit Group deemed to have been assumed by Buyer by virtue of common law, statute or regulation or failure to comply therewith, which liability Buyer has not expressly agreed to assume hereunder, including without limitation, Bulk Transfer Laws in effect in the State of New York; (iii) any liability or obligation for Taxes, whether or not accrued, assessed or currently due and payable, including without limitation any liability for Taxes (a) of the members of the Winlit Group, whether or not it relates to the operation of Winlit's business, (b) arising from the operation of Winlit's business or the ownership of the Assets on or prior to the Closing Date or (c) arising out of the consummation of the transactions contemplated hereby (for purposes of this Section 7(b), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Winlit and Buyer based upon facts alleged thatthe number of days of such period included in the Tax period before (and including) the Closing Date and the number of days of such Tax period after the Closing Date), if true(iv) any Loss arising from customer complaints or any related customer chargebacks or markdowns relating to the business of Winlit prior to the Closing, would constitute such a misrepresentation(v) Losses with respect to the failure by any member of the Winlit Group to obtain any third party consents required to effect the transactions contemplated by this Agreement, (vi) any and all Losses arising out of workers compensation claims relating to periods prior to the Closing Date or any liabilities or obligations arising under any Employee Plan (as defined in Section 3.13), ERISA, or Section 4980B of the Code and (vii) all claims, actions, suits, proceedings, demands, assessments, judgments, costs and expenses, including, without limitation, any legal fees and expenses, incident to any of the foregoing.
(c) Buyer shall indemnify and hold the Winlit Group, and each of their respective affiliates, officers, directors, stockholders, members, managers, employees, agents and successors and assigns, harmless from and against (i) any and all Losses arising out of or resulting from any inaccuracy, misrepresentation or breach or failurenon-fulfillment of any covenant or agreement of Buyer under this Agreement or any document delivered by Buyer to Winlit in connection herewith, (ii) any and all Losses arising out of or in connection with the ownership or operation of the Assets or the Assumed Obligations, in each case with respect to periods after the Closing Date, (iii) all claims, actions, suits, proceedings, demands, assessments, judgments, costs and expenses, including, without limitation, any legal fees and expenses, incident to any of the foregoing, (iv) any Loss arising from customer complaints or any related customer chargebacks or markdowns relating to the business of the Division after the closing and (v) any and all Losses arising out of workers compensation claims relating to periods after the Closing Date by employees of the Division or any liabilities or obligations relating to the Division under any employee plan of Buyer, ERISA or Section 4980B of the Code.
8.3 (d) The indemnity agreements in this Section 7 shall be in addition to any other indemnity obligations any party may have to another party pursuant to any other provision of this Agreement and to any liability which any party may incur to another party and shall not foreclose any other rights or remedies any party may have to enforce the provisions of this Agreement.
(e) The following indemnification procedure shall apply to the foregoing agreements:
(i) The party who is seeking indemnification under this article (the "Indemnified PartyClaimant") for a Loss shall give prompt written notice (in accordance with the other provisions of this Agreement) to the indemnifying party from whom indemnification is sought (the "Indemnifying PartyIndemnitor") promptly after the Claimant learns of the facts and circumstances giving rise to any claimclaim or proceeding, provided, however, that an Indemnified Party's the failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assignsit is actually damaged thereby.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Samples: Asset Purchase Agreement (G Iii Apparel Group LTD /De/)
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement Agreement, or in any schedule, certificate, document or statement delivered pursuant hereto, shall survive (and not be affected in any respect by) the Closing, any investigation conducted by any party hereto shall be deemed to be material and to have been relied upon by any information which any party may receive. Notwithstanding the parties hereto. All foregoing, the representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be or made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party pursuant to this Agreement shall terminate (absent fraud on, and no claim or intentional misrepresentation) one year from action with respect thereto may be brought after, the Closing Date. Any claim for indemnification that is asserted within one year third anniversary of the Closing Date Effective Date, except that the representations and warranties contained in Section 5(g) of this Agreement shall survive until resolved or judicially determinedindefinitely. The representations and warranties contained in which terminate on the third anniversary of the Effective Date, and the liability of any party with respect thereto pursuant to this Agreement Section 10, shall not be affected by terminate with respect to any investigationclaim, verification whether or examination by any not fixed as to liability or liquidated as to amount, with respect to which the appropriate party hereto or by anyone on behalf has been given written notice setting forth the facts upon which the claim for indemnification is based prior to the third anniversary of any such partythe Effective Date, as the case may be.
8.2.1 GLCP (a) The parties shall indemnify each other as set forth below:
(1) From and after the Closing and for a period of eighteen months following the Closing Date, subject to the provisions of this Section 10, CoConnect and CoConnect Sub (individually and collectively, the “CoConnect Group”) shall jointly and severally indemnify and hold harmless Boomj and defend ITEC Boomj’s past, present and its successors future officers, directors, stockholders, employees, attorneys, and assigns agents (collectively, the “Boomj Indemnified Parties”) from and against any and all claims related toLosses (as defined below) including, caused by without limitation, any reasonable legal expenses to the extent arising from, relating to or arising from (a) any misrepresentation or breach otherwise in respect of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, inaccuracy or breach of any representation or warranty of the CoConnect Group contained in Sections 5 or 13 of this Agreement (as of the date hereof, or as of the Closing Date and Effective Date) or of any representation, warranty or failure to fulfill statement made in any covenant schedule, certificate document or agreement instrument delivered by the CoConnect Group or any officer or any of ITEC contained herein them at or in connection with the Closing, in each case without giving effect to any agreement or other document delivered pursuant heretomateriality qualification (including qualifications indicating accuracy in all material respects), or (ii) the breach by the CoConnect Group, of or failure by the CoConnect Group to perform any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach its covenants or failure.
8.3 The party seeking indemnification under agreements contained in this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, Agreement; provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to (A) no member of the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights CoConnect Group shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise responsible for any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection Losses with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted thereinmatters referred to in clauses (i) or (ii) of this Section 10(a), until the cumulative aggregate amount of all such Losses exceeds $500.00, in which event the CoConnect Group shall then be liable for all such cumulative aggregate Losses, including the first $500.00. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent Each member of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from CoConnect Group specifically acknowledges and against agrees that any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Boomj Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice proceed against any member of the same to CoConnect Group under this Section 10 without contemporaneously, or at any time, proceeding against any other member of the Indemnifying Party on such terms as the Indemnified Party may deem appropriateCoConnect Group. As used herein, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.“
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Coconnect Inc)
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement Agreement, or in any schedule, certificate, document or statement delivered pursuant hereto, shall survive (and not be affected in any respect by) the Closing, any investigation conducted by any party hereto shall be deemed to be material and to have been relied upon by any information which any party may receive. Notwithstanding the parties hereto. All foregoing, the representations and warranties contained in or made pursuant to this Agreement shall survive the Closing for the applicable statute of limitations periodterminate on, and all no claim or action with respect thereto may be brought after, the date that is 270 days after the Effective Date (the (“Expiration Date”), except that the representations and warranties contained in Section 0 of this Agreement and breaches of representations, warranties and covenants arising out of or related to be made the fraud or performed after willful misconduct of any of the Closing Principal Shareholders, Parent or Merger Sub shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determinedindefinitely. The representations and warranties contained in which terminate on the Expiration Date, and the liability of any party with respect thereto pursuant to this Agreement Section 0, shall not be affected by terminate with respect to any investigationclaim, verification whether or examination by any not fixed as to liability or liquidated as to amount, with respect to which the appropriate party hereto or by anyone on behalf has been given written notice setting forth the facts upon which the claim for indemnification is based prior to the third anniversary of any such partythe Effective Date, as the case may be.
8.2.1 GLCP (a) Subject to the provisions of this Section 0, each of the Principal Shareholders, Parent and Merger Sub (collectively, the “Indemnifying Parties”) shall severally, and not jointly, indemnify and hold harmless the Company and defend ITEC the Company’s past, present and its successors future officers, directors, stockholders, employees, attorneys, and assigns agents (and after the Closing, the Principal Shareholder shall also indemnify Parent) (collectively, the “Indemnified Parties”) from and against any and all claims related toLosses (as defined hereinafter) including, caused by without limitation, any reasonable legal expenses to the extent arising from, relating to or arising from otherwise in respect of (ai) any misrepresentation inaccuracy or breach of any representation or warranty of the Principal Shareholders, Parent and Merger Sub contained in Sections 0, 0 or 0 of this Agreement (as of the date hereof, or as of the Closing) or of any representation, warranty or statement made in any schedule, certificate, document or instrument delivered by the Principal Shareholders, Parent and Merger Sub or any officer of any of them at or in connection with the Closing, in each case without giving effect to any materiality qualification (including qualifications indicating accuracy in all material respects), (ii) the breach by the Principal Shareholders, Parent and Merger Sub, of or failure by the Principal Shareholders, Parent and Merger Sub to fulfill perform any covenant of their respective covenants or agreement of GLCP set forth agreements contained in this Agreement, or (iii) any Liabilities of Parent, other than the Retained Liabilities. Each Indemnifying Party specifically acknowledges and agrees that any Indemnified Party may proceed against any Indemnifying Party under this Section 0 without contemporaneously, or at any time, proceeding against any other misrepresentationIndemnifying Party. As used herein, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) “Losses” shall mean any and all claims demands, claims, complaints, actions or causes of third parties made based upon facts alleged thataction, if truesuits, would have constituted such a misrepresentationproceedings, breach investigations, arbitrations, assessments, losses, damages, payments, liabilities or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from obligations (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or including those arising out of any claim by a person other than action, such as any settlement or compromise thereof or judgment or award therein) and any fees, costs and expenses related thereto, and the Indemnified Partyterm “legal expenses” shall mean the fees, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense costs and expenses of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest kind incurred by any party indemnified herein and its obligation to indemnify the Indemnified Party counsel in investigating, preparing for, defending against or providing evidence, producing documents or taking other action with respect to the claims any threatened or asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Survival and Indemnification. 8.1 (a) All representations, warranties, covenants covenants, and agreements contained obligations of Comet in this Agreement Agreement, any Schedules or in supplements thereto, the certificate delivered pursuant to Section 6.3(c), and any other certificate or document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall will survive the Closing for and continue in full force and effect until the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year first anniversary of the Closing Date shall survive until resolved or judicially determined(the "TERMINATION DATE"). The representations right of FindWhat, Subcorp or any FindWhat Indemnified Person (as defined below) to indemnification, payment of Damages (as defined below) or other remedy based on such representations, warranties, covenants, and warranties contained in this Agreement shall obligations will not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related investigation conducted with respect to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentationknowledge acquired (or capable of being acquired) by FindWhat, breach Subcorp or any FindWhat Indemnified Person at any time, whether before or after the execution and delivery of warranty this Agreement or failure the Closing Date, with respect to fulfill a covenant the accuracy or agreement by GLCP contained in inaccuracy of or compliance with, any agreement or other document delivered pursuant heretosuch representation, warranty, covenant, or obligation.
(b) any In accordance with this Section 9.2, FindWhat, Subcorp or their related parties (individually a "FINDWHAT INDEMNIFIED PERSON" and all claims of third parties made based upon facts alleged thatcollectively, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified PartyFINDWHAT INDEMNIFIED PERSONS") shall give prompt written notice be indemnified out of and to the indemnifying extent of the Escrow Funds and any Additional Escrow Funds deposited with the Escrow Agent pursuant to Section 9.1(b) above, and the Escrow Funds and any Additional Escrow Funds shall be reduced by the monetary value of, any liability, loss, damage, claim, cost, deficiency, diminution of value, or expense (including costs of investigation and defense, penalties and reasonable legal fees and costs), whether or not involving a third-party claim (the collectively, "Indemnifying PartyDAMAGES") of incurred by FindWhat and any FindWhat Indemnified Person arising, directly or indirectly, from or in connection with the facts and circumstances giving rise to any claimfollowing matters, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused same are included or reserved on the Closing Date Balance Sheet:
(i) any Breach of any representation or warranty made by such failure. All rights contained Comet in this article are cumulative Agreement, the Schedules, the supplements to the Schedules, or any other certificate or document delivered by or on behalf of Comet pursuant to this Agreement;
(ii) any breach by Comet of any covenant or obligation of Comet in this Agreement;
(iii) any litigation pending on the Closing Date against Comet;
(iv) subject to the provisions of Section 8.9, any liabilities or obligations of any nature (whether known or unknown and are in addition whether absolute, accrued, contingent, or otherwise) accruing, occurring, arising or related to all other rights and remediesthe period prior to the Closing Date, to the extent attributable to such period;
(v) any Taxes of Comet for periods which begin before the Closing Date which are otherwise available, paid by FindWhat pursuant to the terms Section 4.13; or
(vi) any amounts representing fees and expenses or other costs of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or kind arising out of any claim or in connection with the transaction contemplated by a person other than the Indemnified Partythis Agreement attributable to Comet, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume extent that the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party Surviving Corporation or FindWhat shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereofbecome liable therefor. The Indemnifying Party shall remedies provided in this Section 9.2 will not consent to a settlement of, be exclusive of or the entry of limit any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and other remedies against any losses, damages, expenses and liabilities person that may be available to FindWhat or other FindWhat Indemnified Persons at law or in equity arising out from any bad faith misrepresentation under this Agreement by or on behalf of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basisComet.
Appears in 1 contract
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement Agreement, or in any schedule, certificate, document or statement delivered pursuant hereto, shall survive (and not be affected in any respect by) the Closing, any investigation conducted by any party hereto shall be deemed to be material and to have been relied upon by any information which any party may receive. Notwithstanding the parties hereto. All foregoing, the representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be or made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party pursuant to this Agreement shall terminate (absent fraud on, and no claim or intentional misrepresentation) one year from action with respect thereto may be brought after, the Closing Date. Any claim for indemnification that is asserted within one year third anniversary of the Closing Date Effective Date, except that the representations and warranties contained in Section 5(g) of this Agreement shall survive until resolved or judicially determinedindefinitely. The representations and warranties contained in which terminate on the third anniversary of the Effective Date, and the liability of any party with respect thereto pursuant to this Agreement Section 10, shall not be affected by terminate with respect to any investigationclaim, verification whether or examination by any not fixed as to liability or liquidated as to amount, with respect to which the appropriate party hereto or by anyone on behalf has been given written notice setting forth the facts upon which the claim for indemnification is based prior to the third anniversary of any such partythe Effective Date, as the case may be.
8.2.1 GLCP (a) The parties shall indemnify each other as set forth below:
(1) Subject to the provisions of this Section 10, the Majority Shareholder, eClic and eClic Sub (individually and collectively, the "eClic Group") shall jointly and severally indemnify and hold harmless AngioGenex and defend ITEC AngioGenex' past, present and its successors future officers, directors, stockholders, employees, attorneys, and assigns agents (and after the Closing, the Founder shall also indemnify eClic) (collectively, the "AngioGenex Indemnified Parties") from and against any and all claims related toLosses (as defined below) including, caused by without limitation, any reasonable legal expenses to the extent arising from, relating to or arising from (a) any misrepresentation or breach otherwise in respect of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, inaccuracy or breach of any representation or warranty of the eClic Group contained in Sections 5 or 13 of this Agreement (as of the date hereof, or as of the Closing Date and Effective Date) or of any representation, warranty or failure to fulfill statement made in any covenant schedule, certificate document or agreement instrument delivered by the eClic Group or any officer or any of ITEC contained herein them at or in connection with the Closing, in each case without giving effect to any agreement or other document delivered pursuant heretomateriality qualification (including qualifications indicating accuracy in all material respects), or (ii) the breach by the eClic Group, of or failure by the eClic Group to perform any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach its covenants or failure.
8.3 The party seeking indemnification under agreements contained in this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, Agreement; provided, however, that an Indemnified Party's failure to give such notice (A) no member of the eClic Group shall not impair or otherwise affect such Indemnified Party's right to indemnification except be responsible for any Losses with respect to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained matters referred to in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms clauses (i) or (ii) of this Agreement or applicable lawSection 10(a) until the cumulative aggregate amount of all such Losses exceeds $10,000, in which event the eClic Group shall then be liable for all such cumulative aggregate Losses, including the first $10,000. All indemnification rights shall be deemed to apply in favor Each member of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors eClic Group specifically acknowledges and assigns.
8.4 The agrees that any AngioGenex Indemnified Party shall not settle or compromise may proceed against any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent member of the Indemnifying Party eClic Group under this Section 10 without contemporaneously, or at any time, proceeding against any other member of the eClic Group. As used herein, "Losses" shall mean any and all demands, claims, complaints, actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, payments, liabilities or obligations (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or including those arising out of any claim by a person other than action, such as any settlement or compromise thereof or judgment or award therein) and any fees, costs and expenses related thereto, and the Indemnified Partyterm "legal expenses" shall mean the fees, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense costs and expenses of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest kind incurred by any party indemnified herein and its obligation to indemnify the Indemnified Party counsel in investigating, preparing for, defending against or providing evidence, producing documents or taking other action with respect to the claims any threatened or asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Eclic Inc/Nv)
Survival and Indemnification. 8.1 All representations, warranties, covenants (a) The representations and agreements warranties of the Parties hereto contained in this Agreement or in any document certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing until December 31, 2006. Notwithstanding the preceding sentence, any representation, warranty, covenant or agreement which is specified as surviving Closing and in respect of which indemnity may be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in sought under this Agreement shall survive the Closing for time at which it would otherwise terminate pursuant to the applicable statute preceding sentence, if specific notice of limitations periodthe inaccuracy thereof giving rise to such right of indemnity shall have been given to the Party against whom such indemnity may be sought prior to such time.
(b) From and after Closing, Purchaser shall indemnify, defend and hold harmless Seller and its Affiliates, and all representationstheir respective directors, warranties officers, employees, agents, representatives, contractors and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns subcontractors from and against any and all losses, damages, claims, suits, causes of action, penalties, costs, expenses (including without limitation, reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any action, suit or proceeding and liabilities other than special or punitive damages), including, without limitation, damage to property, injury to or death of persons or other claims related to(collectively, caused the “Claims”), regardless of whether the Claims arise as a result of the negligence, strict liability or any other liability under any theory of law or equity of, arising out of or resulting from:
(i) the breach of any of the representations and warranties made by Purchaser in this Agreement or arising from in any document, instrument or certificate delivered in connection herewith, during the applicable survival period;
(aii) any misrepresentation failure by Purchaser to perform in all material respects any of its covenants, agreements or breach of warranty obligations in this Agreement or failure to fulfill in any covenant document, instrument or agreement of GLCP certificate delivered in connection herewith;
(iii) the Assumed Obligations, except those set forth in Section 10.2(d) which arise under or relate to actions occurring or conditions existing prior to the Closing Date;
(iv) Sales Taxes and Property Taxes and other Taxes for which Purchaser is liable under Article XI hereof; and
(v) any brokerage commissions or finders’ fees incurred by Purchaser in connection with this Agreement or the transactions contemplated hereby.
(c) Without limiting Seller’s obligations under this Agreement, or any other misrepresentationfrom and after Closing, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC Seller shall indemnify, defend and hold harmless and defend GLCP Purchaser and its representativesAffiliates and Purchaser’s and their respective directors, officers, membersemployees, managersagents, directorsrepresentatives, affiliates, successors contractors and assigns, sub-contractors from and against any and all claims related toClaims, caused by regardless of whether such Claims arise as a result of the negligence, strict liability or any other liability under any theory of law or equity of, arising from out of or resulting from:
(i) any misrepresentation, the breach of warranty any of the representations or failure to fulfill any covenant or agreement of ITEC contained herein warranties made by Seller in this Agreement or in any agreement document, instrument or other document certificate delivered pursuant heretoin connection herewith, or during the applicable survival period;
(ii) any and failure by Seller to perform in all claims material respects any of third parties made based upon facts alleged thatits covenants, if true, would constitute such a misrepresentation, breach agreements or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained obligations in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officersany document, directors, representatives, subsidiaries, affiliates, successors and assigns.instrument or certificate delivered in connection herewith; and
8.4 The Indemnified Party shall not settle (iii) any brokerage commissions or compromise any claim finders’ fees incurred by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In Seller in connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, this Agreement or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basistransactions contemplated hereby.
Appears in 1 contract
Survival and Indemnification. 8.1 All (a) The representations, warranties, covenants and agreements contained herein to be performed or complied with after the closing of the transactions contemplated hereby shall survive without limitation as to time, unless the covenant or agreement specifies a term, in which case such covenant or agreement shall survive until the expiration of such specified term.
(b) From and after the closing of the transactions contemplated hereby, each Party shall indemnify, defend and hold harmless the other (the party seeking indemnification being referred to as the “Indemnified Party”) from, against and in respect of any and all claims, losses, liabilities and damages, including, without limitation, amounts paid in settlement, reasonable costs of investigation and reasonable fees and disbursements of counsel (whether at the pre-trial, trial or appellate levels) which the Indemnified Party shall suffer, sustain or become subject to by virtue of or which arises our of, or results from the breach of any representation, warranty, covenant or agreement, set fourth in this Agreement or contained in any document instrument or certificate delivered pursuant hereto hereto. To the extent incurred prior to a settlement or conclusion of any litigation arising hereunder, such reasonable costs and fees shall be deemed to be material and to have been relied upon paid by the parties heretoIndemnifying Party as incurred by the Indemnified party. All representations Without limiting the foregoing, DWSA agree that the foregoing agreement to defend and warranties contained in this Agreement indemnify Yak and Yak Canada shall survive the Closing for the applicable statute of limitations periodinclude, and all representationswithout limitation, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related toclaims, caused by losses, liabilities and damages which Yak or Yak Canada may suffer, incur, sustain or become subject to as a result of any pending or anticipated legal proceeding brought against any of the Parties arising from the operations of the Venture in Peru including, without limitation, any claim instituted by any third party service provider (aincluding, without limitation, IMPSAT, Telefonica de Peru and Banco Sudamericano) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth engaged by DWSA in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failureconnection with the Venture.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (ic) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of promptly provide the Indemnifying Party (which consent shall not be unreasonably withheld)with the Indemnification Notice, unless legal action shall have been instituted against specifying in detail the basis of such claim, the facts pertaining thereto and, if known, the amount, or an estimate of the amount, of the liability arising therefrom. The Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter all information and documentation necessary to support and verify the claim asserted and the Indemnifying Party shall not have taken be given reasonable access to all books and records in the possession or control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, Party or any of its affiliates which the Indemnifying Party shall, upon written notice reasonably determines to the Indemnified Party, assume the defense of any such claim without prejudice be related to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement Agreement, or in any schedule, certificate, document or statement delivered pursuant hereto, shall survive (and not be affected in any respect by) the Closing, any investigation conducted by any party hereto shall be deemed to be material and to have been relied upon by any information which any party may receive. Notwithstanding the parties hereto. All foregoing, the representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be or made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party pursuant to this Agreement shall terminate (absent fraud on, and no claim or intentional misrepresentation) one year from action with respect thereto may be brought after, the Closing Date. Any claim for indemnification that is asserted within one year third anniversary of the Closing Effective Date (the "Indemnification Termination Date"), except that the representations and warranties contained in Section 5(h) of this Agreement shall survive until resolved or judicially determinedindefinitely. The representations and warranties contained in which terminate on the Indemnification Termination Date, and the liability of any party with respect thereto pursuant to this Agreement Section 10, shall not be affected by terminate with respect to any investigationclaim, verification whether or examination by any not fixed as to liability or liquidated as to amount, with respect to which the appropriate party hereto or by anyone on behalf of any such partyhas been given written notice setting forth the facts upon which the claim for indemnification is based prior to the Indemnification Termination Date, as the case may be.
8.2.1 GLCP (a) The parties shall indemnify each other as set forth below:
(1) Subject to the provisions of this Section 10, each of the Shareholder Representative, Parent and Merger Sub (individually and collectively, the "Parent Group") shall jointly and severally indemnify and hold harmless the Company and defend ITEC the Company's present and its successors future officers, directors, employees and assigns attorneys (and after the Closing, the Shareholder Representative shall also indemnify Parent) (collectively, the "Company Indemnified Parties") from and against any and all claims related toLosses (as defined below) including, caused by without limitation, any reasonable legal expenses to the extent arising from, relating to or arising from (a) any misrepresentation or breach otherwise in respect of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, inaccuracy or breach of any representation or warranty of the Parent Group contained in Sections 5 or 13 of this Agreement (as of the date hereof, or as of the Closing) or of any representation, warranty or failure to fulfill statement made in any covenant schedule, certificate, document or agreement instrument delivered by the Parent Group or any officer or any of ITEC contained herein them at or in any agreement connection with the Closing, which such Company Indemnified Party did not know or other document delivered pursuant heretohave reason to know was an inaccuracy or breach of said representation of warranty), or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, the breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from Parent Group, of or failure by the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled Parent Group to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.perform
Appears in 1 contract
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement Agreement, or in any schedule, certificate, document or statement delivered pursuant hereto, shall survive (and not be affected in any respect by) the Closing, any investigation conducted by any party hereto shall be deemed to be material and to have been relied upon by any information which any party may receive. Notwithstanding the parties hereto. All foregoing, the representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be or made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party pursuant to this Agreement shall terminate (absent fraud on, and no claim or intentional misrepresentation) one year from action with respect thereto may be brought after, the Closing Date. Any claim for indemnification that is asserted within one year third anniversary of the Closing Date Effective Date, except that the representations and warranties contained in Section 5(g) of this Agreement shall survive until resolved or judicially determinedindefinitely. The representations and warranties contained in which terminate on the third anniversary of the Effective Date, and the liability of any party with respect thereto pursuant to this Agreement Section 10, shall not be affected by terminate with respect to any investigationclaim, verification whether or examination by any not fixed as to liability or liquidated as to amount, with respect to which the appropriate party hereto or by anyone on behalf has been given written notice setting forth the facts upon which the claim for indemnification is based prior to the third anniversary of any such partythe Effective Date, as the case may be.
8.2.1 GLCP (a) The parties shall indemnify each other as set forth below:
(1) From and after the Closing and for a period of eighteen months following the Closing Date, subject to the provisions of this Section 10, each of the Principal, RES and RES Sub (individually and collectively, the “RES Group”) shall jointly and severally indemnify and hold harmless BOOM and defend ITEC BOOM’s past, present and its successors future officers, directors, stockholders, employees, attorneys, and assigns agents (and after the Closing, the Principal shall also indemnify RES) (collectively, the “BOOM Indemnified Parties”) from and against any and all claims related toLosses (as defined below) including, caused by without limitation, any reasonable legal expenses to the extent arising from, relating to or arising from (a) any misrepresentation or breach otherwise in respect of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, inaccuracy or breach of any representation or warranty of the RES Group contained in Sections 5 or 13 of this Agreement (as of the date hereof, or as of the Closing Date and Effective Date) or of any representation, warranty or failure to fulfill statement made in any covenant schedule, certificate document or agreement instrument delivered by the RES Group or any officer or any of ITEC contained herein them at or in connection with the Closing, in each case without giving effect to any agreement or other document delivered pursuant heretomateriality qualification (including qualifications indicating accuracy in all material respects), or (ii) the breach by the RES Group, of or failure by the RES Group to perform any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach its covenants or failure.
8.3 The party seeking indemnification under agreements contained in this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, Agreement; provided, however, that an Indemnified Party's failure to give such notice (A) no member of the RES Group shall not impair or otherwise affect such Indemnified Party's right to indemnification except be responsible for any Losses with respect to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained matters referred to in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms clauses (i) or (ii) of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheldSection 10(a), unless legal action until the cumulative aggregate amount of all such Losses exceeds $500.00, in which event the RES Group shall have been instituted against then be liable for all such cumulative aggregate Losses, including the Indemnified Party first $500.00. As used herein, “Losses” shall mean any and the Indemnifying Party shall not have taken control all demands, claims, complaints, actions or causes of such suit within fifteen action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, payments, liabilities or obligations (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or including those arising out of any claim by a person other than the Indemnified Partyaction, the Indemnifying Party shallsuch as any settlement or compromise thereof or judgment or award therein) and any fees, upon written notice to the Indemnified Party, assume the defense costs and expenses related thereto (net of any such claim without prejudice directly related insurance payments or recoveries received or to be received from third party insurers), and the right term “legal expenses” shall mean the fees, costs and expenses of the Indemnifying Party thereafter to contest any kind incurred by any party indemnified herein and its obligation to indemnify the Indemnified Party counsel in investigating, preparing for, defending against or providing evidence, producing documents or taking other action with respect to the claims any threatened or asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Survival and Indemnification. 8.1 All representations, warranties, The covenants and agreements of the parties contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material Article IX and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement Section 3.14 shall survive the Closing for and shall remain in full force and effect until ninety (90) days following the expiration of the applicable statute statutes of limitations period, and all representations, warranties and covenants with respect to any Taxes that would be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due dateindemnifiable under this Article IX. The indemnity obligations of each party procedures set forth in Section 8.04 shall apply to any claims made by the parties to this Agreement pursuant to this Article IX. Seller shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations indemnify and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless Purchaser and defend ITEC and its successors and assigns from and the Company against any and all claims related toLosses as a result of, caused by or arising from (a) out of, any misrepresentation or breach of representation or warranty in Section 3.14 or failure to fulfill any covenant or agreement of GLCP set forth made by Seller in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claimArticle IX, provided, however, that an Indemnified Party's failure that, subject to give such notice the next sentence hereof, Purchaser shall not impair or otherwise affect such Indemnified Party's right be entitled to indemnification except under this Article IX only if and to the extent that the Indemnifying Party demonstrates actual damage caused by such failureaggregate amount of claims made under this Article IX exceeds $500,000 and in no event shall the indemnification obligation of Seller under this Article IX exceed $10,000,000 in the aggregate. All rights contained Seller and Purchaser agree that the deductible and limitation on liability set forth in this article are cumulative and are in addition the immediately preceding sentence do not apply to all other rights and remedies, which are otherwise available, pursuant claims relating to the terms Election. Purchaser shall indemnify and hold harmless Seller against any and all Losses as a result of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any breach of any covenant (without limiting the ability to enforce such covenant directly) made by Purchaser in this Article IX and shall reimburse Seller upon demand (or credit Seller against amounts otherwise then payable by Seller pursuant to this Agreement, if any) for any overpayments that may have been made (including overpayments of estimated amounts, payments made by Seller, the Company or Jacobson directly as a result of a direct claim by ox xxxxxation to a person Tax authority that should have been subject to the above deductible or limitation on liability, amendments to Tax Returns or other similar circumstances). Notwithstanding anything to the contrary in this Agreement, to the extent that the provisions contained in this Article IX conflict with any provision of Article VIII hereof, the provisions contained in Article IX shall control. The remedies contained in this Article IX shall be the sole recourse of the parties hereto and their respective Affiliates for all losses, liabilities, claims, damages or expenses related to or arising, directly or indirectly, out of or relating to Taxes, Section 3.14 and this Article IX, the transactions contemplated hereby or otherwise arising at law, under any statute or in equity, and each party hereto has waived any and all rights, claims, causes of action and other remedies it or its Affiliates may have against the other relating to the subject matter of the foregoing other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party remedies expressly provided in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basisArticle IX.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cordant Technologies Inc)
Survival and Indemnification. 8.1 All Survival of Representations, Warranties, Covenants and Agreements; ------------------------------------------------------------------ Knowledge of Breach; Indemnification. Notwithstanding any otherwise applicable ------------------------------------ statute of limitations, the representations and warranties of each of the Investor and the Company, respectively, included or provided for herein shall survive the execution and delivery of this Agreement thirty (30) days after the receipt by the Investor or the Company, as the case may be, of audited consolidated financial statements for the other party, as of and for the year ending December 31, 1998, together with a report thereon by the other party's independent public accountants provided, however, that any representation, -------- ------- warranty, covenant or agreement contained in Sections 3(n) and 4(c) shall survive the execution and delivery of this Agreement until the expiration of the applicable statute of limitations (including any waivers or extensions thereof) with respect to such matters; provided, however, that the provisions of this Section 10 shall constitute the exclusive remedy on the part of any party hereto in respect of a breach of the representations and warranties of the other party contained in this Agreement. The covenants and other agreements contained in this Agreement shall survive the execution and delivery of this Agreement except that covenants or agreements with a term specified therein shall terminate at the end of such term. Investor and the Company shall indemnify each other for breaches of the foregoing representations, warranties and covenants as to which the indemnified party has given notice during the periods of survival set forth above, provided, that, in no event shall the Investor be liable to the -------- ---- Company or the Company be liable to the Investor, as the case may be, pursuant to this Section 10, for any breach of the representations, warranties, covenants and agreements contained in this Agreement included or provided for herein or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made schedule or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement certificate or other document delivered pursuant heretoto this Agreement, or (b) any unless and until all claims of third parties made based upon facts alleged thatfor which damages are recoverable hereunder by the Investor or the Company, if trueas the case may be, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article exceed $500,000 (the "Indemnified PartyDeductible") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against in which case ---------- the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, Investor or the entry of any judgment arising fromCompany, any claimas the case may be, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate damages equal to such excess, but not more than the Purchase Price plus the charges and expenses (including reasonable attorneys' fees and expenses) incurred by the party sustaining such damages in connection with the defense Transaction Documents and the transactions thereby. Any payments pursuant to this Section 10 shall be treated as an adjustment to the Purchase Price for all tax purposes. The indemnification provided for by this Section 10 shall apply -24- notwithstanding any investigation made by or on behalf of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Survival and Indemnification. 8.1 All representationsNotwithstanding any investigation conducted by any party hereto or any information any party may receive, all representations and warranties, contained in this Agreement, the Transaction Documents or in any schedule, certificate, document or statement delivered pursuant hereto, shall survive (and not be affected in any respect by) (i) in the case of Target, only until the Closing and (ii) in the case of Principal Shareholder, until the first anniversary of the Effective Time. Notwithstanding the foregoing, the representations and warranties contained in Sections 6(a)-(c) of this Agreement shall survive indefinitely. The representations and warranties which terminate on the first anniversary of the Effective Time, and the liability of any party with respect thereto pursuant to this Section 11, shall not terminate with respect to any claim, whether or not fixed as to liability or liquidated as to amount, with respect to which the appropriate party has been given written notice setting forth the facts upon which the claim for indemnification is based prior to the first anniversary of the Effective Time.
(a) The parties shall indemnify each other as set forth below:
(1) Subject to the provisions of this Section 11, the Principal Shareholder shall indemnify and hold harmless Target (and Surviving Corporation) and Target’s past, present and future officers, directors, stockholders, employees, attorneys, and agents (and after the Closing, the Principal Shareholder shall also indemnify Ardmore) (collectively, the “Target Indemnified Parties”) from and against any Losses (as defined below) including, without limitation, any reasonable legal expenses to the extent arising from, relating to or otherwise in respect of (i) any inaccuracy or breach of any representation or warranty with respect to Ardmore, Merger Sub or Principal Shareholder, contained in Sections 6 or 14 of this Agreement (as of the date hereof, or as of the Closing) or of any representation, warranty or statement made in any schedule, certificate, document or instrument delivered by Ardmore or any officer or any of them at or in connection with the Closing, (ii) the breach by Ardmore, Merger Sub or Principal Shareholder of or failure by Ardmore, Merger Sub or Principal Shareholder to perform any of their respective covenants and or agreements contained in this Agreement or in the Transaction Documents, or (iii) any document delivered pursuant hereto Liabilities of Ardmore or Merger Sub. As used herein, “Losses” shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against mean any and all claims related todemands, caused by claims, complaints, actions or arising from causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, diminution in value, deficiencies, payments, liabilities or obligations (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or including those arising out of any claim by a person other than action, such as any settlement or compromise thereof or judgment or award therein) and any fees, costs and expenses related thereto, and the Indemnified Partyterm “legal expenses” shall mean the fees, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense costs and expenses of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest kind incurred by any party indemnified herein and its obligation to indemnify the Indemnified Party counsel in investigating, preparing for, defending against or providing evidence, producing documents or taking other action with respect to the claims any threatened or asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Survival and Indemnification. 8.1 All (a) Subject to Section 7.20 and Section 8.6, all representations, warranties, covenants and agreements contained obligations of the Parties in this Agreement and any other certificate or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing for and the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year consummation of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigationContemplated Transactions, verification or examination by any party hereto or by anyone on behalf of any such partysubject to Section 11.8(c)-(d).
8.2.1 GLCP shall (b) Seller and MLP jointly and severally agree to indemnify, defend and hold harmless Purchaser and defend ITEC Purchaser’s representatives, officers, directors, employees and its successors and assigns from and agents (“Purchaser Indemnitees”) against any and all claims related tolosses, caused by claims, liabilities, damages, actions, costs or expenses, including attorney’s fees and costs (the “Seller Indemnified Losses”) arising from (a) any misrepresentation from, in connection with, or with respect to the following items:
1. Any breach of warranty or failure to fulfill any representation, warranty, covenant or agreement of GLCP set forth Seller or MLP contained in this Agreement, or any agreement, certificate or document executed and delivered by them, or their affiliates pursuant hereto or in connection with any of the transactions contemplated in this Agreement;
2. Any failure by Seller to satisfy, perform or pay the Retained Liabilities;
3. Any and all actions, suits, proceedings, claims or demands by third parties (“Third Party Claims”) and losses, liabilities, expenses or judgments relating thereto, directly resulting from or arising from matters relating to Seller, its Business or the Acquired Assets which occurred or are alleged to have occurred prior to the Closing other misrepresentationthan those specifically assumed by Purchaser as set forth in this Agreement.
(c) If the Closing occurs, Seller and MLP will have liability (for indemnification or otherwise) with respect to any breach of warranty or failure to fulfill (i) a covenant or agreement by GLCP contained in any agreement obligation to be performed or other document delivered pursuant hereto, complied with or (bii) any and all claims a representation or warranty only if on or before 5 P.M. Hawaii Standard Time on the third anniversary of third parties made based upon facts alleged thatthe Closing Date, if true, would have constituted Purchaser notifies Seller or Seller’s designee (such designee to be provided by Seller as appropriate) of a misrepresentation, breach or failureclaim specifying the factual basis of the claim in reasonable detail to the extent then known by Purchaser.
8.2.2 ITEC shall indemnify(d) If the Closing occurs, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against Purchaser will have liability with respect to any and all claims related to, caused by or arising from breach of (i) any misrepresentation, breach of warranty or failure to fulfill any a covenant or agreement of ITEC contained herein obligation to be performed or in any agreement or other document delivered pursuant heretocomplied with, or (ii) any and all claims of a representation or warranty, only if on or before 5 P.M. Hawaii Standard Time on the third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") anniversary of the facts and circumstances giving rise to any claimClosing Date, provided, however, that an Indemnified Party's failure to give such notice shall not impair Seller or otherwise affect such Indemnified Party's right to indemnification except Seller’s designee notifies Purchaser of a claim specifying the factual basis of the claim in reasonable detail to the extent that the Indemnifying Party demonstrates actual damage caused then known by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement Seller or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assignsSeller’s designee.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled (e) Subject to indemnification hereunder without the prior written consent of the Indemnifying Party subsections (which consent shall not be unreasonably withheld)c) and (d) above, unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this articleSection 11.8 shall survive the Closing and be enforceable regardless of whether the liability is based upon past, present or future acts, claims, liabilities or legal requirements and regardless of whether any person or entity (including the person or entity from whom relief is sought) alleges or proves the sole, concurrent, contributory, or comparative negligence of the person or entity seeking relief, the Indemnifying Party shall not be entitled to question sole or concurrent strict liability imposed upon the manner in which the Indemnified Party defended such claim person or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basisentity seeking relief.
Appears in 1 contract
Samples: Asset Purchase Agreement (Maui Land & Pineapple Co Inc)
Survival and Indemnification. 8.1 All representations(a) Subject to the applicable statute of limitations, warranties, covenants and agreements contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement herein hereto shall survive the Closing for and the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year delivery of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such partySecurities.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any The Company agrees to indemnify and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP each Purchaser and its representativesAffiliates, and their respective directors, officers, trustees, members, managers, directorsemployees, affiliatesinvestment advisers and agents, successors and assignsto the fullest extent permitted by applicable law, from and against any and all claims related tolosses, caused claims, damages, liabilities and expenses, joint or several, (including without limitation reasonable and documented attorney fees and disbursements and other documented out-of-pocket expenses reasonably incurred in connection with investigating, preparing or defending any action, claim or proceeding, pending or threatened and the costs of enforcement thereof) to which such Person may become subject as a result of any breach of representation, warranty, covenant or agreement made by or arising to be performed on the part of the Company under the Transaction Documents, and will reimburse any such Person for all such amounts as they are incurred by such Person solely to the extent such amounts have been finally judicially determined not to have resulted from such Person’s fraud or willful misconduct.
(c) Any Person entitled to indemnification hereunder shall (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the "Indemnifying Party"defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (a) the indemnifying party has agreed in writing to pay such fees or expenses, (b) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such person, based upon written advice of its counsel, a conflict of interest exists between such person and the indemnifying party with respect to such claims (in which case, if the person notifies the indemnifying party in writing that such person elects to employ separate counsel at the expense of the facts indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such person); and circumstances giving rise to any claim, provided, howeverfurther, that an Indemnified Party's the failure of any indemnified party to give such written notice as provided herein shall not impair or otherwise affect such Indemnified Party's right to indemnification relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the Indemnifying Party demonstrates actual damage caused by indemnifying party in the defense of any such failureclaim or litigation. All rights contained It is understood that the indemnifying party shall not, in this article are cumulative and are connection with any proceeding in addition to the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any time for all other rights and remediessuch indemnified parties. No indemnifying party will, which are otherwise available, pursuant to except with the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor consent of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from conditioned or arising out of any claim by a person other than the Indemnified Partydelayed, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising fromor enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation. No indemnified party will, any claim, without except with the prior written consent of the Indemnified Partyindemnifying party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party which consent shall not be entitled unreasonably withheld, conditioned or delayed, consent to question the manner in which the Indemnified Party defended such claim or the amount or nature entry of any such judgment or enter into any settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Samples: Securities Purchase Agreement (Outlook Therapeutics, Inc.)
Survival and Indemnification. 8.1 All Notwithstanding any investigation conducted by any party hereto or any information any party may receive, all representations, warranties, covenants and agreements contained in this Agreement Agreement, the Transaction Documents or in any schedule, certificate, document or statement delivered pursuant hereto hereto, shall survive (and not be deemed to be material affected in any respect by) (i) in the case of AIDH, only until the Closing and to have been relied upon by (ii) in the parties heretocase of Tryant, until the first anniversary of the Effective Time. All Notwithstanding the foregoing, the representations and warranties contained in Section 6(d) of this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determinedindefinitely. The representations and warranties which terminate on the first anniversary of the Effective Time, and the liability of any party with respect thereto pursuant to this Section 11, shall not terminate with respect to any claim, whether or not fixed as to liability or liquidated as to amount, with respect to which the appropriate party has been given written notice setting forth the facts upon which the claim for indemnification is based prior to the fourth anniversary of the Effective Time, as the case may be.
(a) The parties shall indemnify each other as set forth below:
(1) Subject to the provisions of this Section 11, the Major Shareholder shall indemnify and hold harmless AIDH and AIDH’s past, present and future officers, directors, stockholders, employees, attorneys, and agents (and after the Closing, the Major Shareholder shall also indemnify MIS) (collectively, the “Indemnified Parties”) from and against any Losses (as defined below) including, without limitation, any reasonable legal expenses to the extent arising from, relating to or otherwise in respect of (i) any inaccuracy or breach of any representation or warranty with respect to MIS, AS or Tryant, contained in Sections 6 or 14 of this Agreement (as of the date hereof, or as of the Closing) or of any representation, warranty or statement made in any schedule, certificate, document or instrument delivered by MIS or any officer or any of them at or in connection with the Closing, (ii) the breach by MIS, AS or Tryant of or failure by MIS, AS or Tryant to perform any of their respective covenants or agreements contained in this Agreement or the Transaction Documents, or (iii) any Liabilities of MIS or AS. As used herein, “Losses” shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against mean any and all claims related todemands, caused by claims, complaints, actions or arising from causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, diminution in value, deficiencies, payments, liabilities or obligations (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or including those arising out of any claim by a person other than action, such as any settlement or compromise thereof or judgment or award therein) and any fees, costs and expenses related thereto, and the Indemnified Partyterm “legal expenses” shall mean the fees, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense costs and expenses of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest kind incurred by any party indemnified herein and its obligation to indemnify the Indemnified Party counsel in investigating, preparing for, defending against or providing evidence, producing documents or taking other action with respect to the claims any threatened or asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Survival and Indemnification. 8.1 All representations(a) Subject to the applicable statute of limitations, warranties, covenants and agreements contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement herein hereto shall survive the Closing for and the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year delivery of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such partySecurities.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any The Company agrees to indemnify and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP the Purchaser and its representativesAffiliates, and their respective directors, officers, trustees, members, managers, directorsemployees, affiliatesinvestment advisers and agents, successors and assignsto the fullest extent permitted by applicable law, from and against any and all claims related tolosses, caused claims, damages, liabilities and expenses, joint or several, (including without limitation reasonable and documented attorney fees and disbursements and other documented out-of-pocket expenses reasonably incurred in connection with investigating, preparing or defending any action, claim or proceeding, pending or threatened and the costs of enforcement thereof) to which such Person may become subject as a result of any breach of representation, warranty, covenant or agreement made by or arising to be performed on the part of the Company under the Transaction Documents, and will reimburse any such Person for all such amounts as they are incurred by such Person solely to the extent such amounts have been finally judicially determined not to have resulted from such Person’s fraud or willful misconduct.
(c) Any Person entitled to indemnification hereunder shall (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the "Indemnifying Party"defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (a) the indemnifying party has agreed in writing to pay such fees or expenses, (b) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such person, based upon written advice of its counsel, a conflict of interest exists between such person and the indemnifying party with respect to such claims (in which case, if the person notifies the indemnifying party in writing that such person elects to employ separate counsel at the expense of the facts indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such person); and circumstances giving rise to any claim, provided, howeverfurther, that an Indemnified Party's the failure of any indemnified party to give such written notice as provided herein shall not impair or otherwise affect such Indemnified Party's right to indemnification relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the Indemnifying Party demonstrates actual damage caused by indemnifying party in the defense of any such failureclaim or litigation. All rights contained It is understood that the indemnifying party shall not, in this article are cumulative and are connection with any proceeding in addition to the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any time for all other rights and remediessuch indemnified parties. No indemnifying party will, which are otherwise available, pursuant to except with the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor consent of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from conditioned or arising out of any claim by a person other than the Indemnified Partydelayed, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising fromor enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation. No indemnified party will, any claim, without except with the prior written consent of the Indemnified Partyindemnifying party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party which consent shall not be entitled unreasonably withheld, conditioned or delayed, consent to question the manner in which the Indemnified Party defended such claim or the amount or nature entry of any such judgment or enter into any settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Samples: Securities Purchase Agreement (Outlook Therapeutics, Inc.)
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement (a) Notwithstanding any examination made by or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any party hereto, the knowledge of any party or the acceptance by any party of any certificate or opinion: (i) each representation and warranty contained in Sections 3(a) (Organization, Qualification and Authorization), 3.3(c) (Capitalization), 3(d) (Valid Issuance of Exchange Securities and Underlying Common Stock), and 3.3(t) (Certain Fees) (such partyrepresentations and warranties collectively, the “Fundamental Representations”) shall survive the closing and (ii) each representation and warranty contained herein other than the Fundamental Representations shall survive the Effective Date for a period of two years; provided, however, that, any representation or warranty in respect of which indemnity may be sought under Section 11(b), and the indemnity with respect thereto, shall survive the time at which it would otherwise terminate pursuant to this Section 11(a), if written notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to the expiration of the applicable survival period, if any, specifying, to the extent possible, the factual basis of the inaccuracy or breach in reasonable detail, and in any such case such representation or warranty shall survive until any claim for indemnity related to such inaccuracy or breach is resolved. Each covenant contained herein shall survive the Effective Date and shall be fully effective and enforceable.
8.2.1 GLCP (b) The Company shall hold harmless indemnify each Investor, its stockholders, partners, officers, directors, employees, agents and defend ITEC and its successors and assigns from and representatives against any damages, claims, losses, liabilities and all claims related to, caused expenses (including reasonable counsel fees and expenses) which may be suffered or incurred by or arising from (a) any misrepresentation or of them as a result of a breach of any representation, warranty or failure to fulfill any covenant or agreement of GLCP set forth made by the Company in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP (c) Each Investor agrees to indemnify the Company and its representativesstockholders, officers, members, managers, directors, affiliatesemployees, successors agents and assigns, from and representatives against any damages, claims, losses, liabilities and all claims related to, caused expenses (including reasonable counsel fees and other expenses) which may be suffered or incurred by or arising from (i) it as a result of any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant heretorepresentation, warranty, or (ii) any and all claims of third parties covenant made based upon facts alleged that, if true, would constitute by such a misrepresentation, breach or failureInvestor in this Agreement.
8.3 The party seeking indemnification under (d) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this article Section 11, such person (the "Indemnified Party"“indemnified party”) shall give prompt written notice to promptly notify the indemnifying party person against whom such indemnity may be sought (the "Indemnifying Party"“indemnifying party”) in writing of the occurrence of the facts and circumstances giving rise to such claim. The failure of any claim, provided, however, that an Indemnified Party's failure person to give such deliver the notice required by this Section 11(d) shall not impair or otherwise in any way affect such Indemnified Party's right to the indemnifying party’s indemnification obligations hereunder except and only to the extent that the Indemnifying Party demonstrates actual damage caused by indemnifying party is actually prejudiced thereby. In case any such failure. All rights contained in this article are cumulative proceeding shall be brought against any indemnified party and are in addition it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to all other rights and remediesparticipate therein and, which are otherwise available, pursuant to the terms extent that it shall, jointly with any other indemnifying party similarly notified, assume the defense thereof, with counsel satisfactory to such indemnified party and shall pay as incurred the fees and expenses of this Agreement such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel or applicable lawpay its own expenses. All indemnification rights Notwithstanding the foregoing, the indemnifying party shall be deemed to apply in favor pay as incurred the fees and expenses of the counsel retained by the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors party in the event (i) the indemnifying party and assigns.
8.4 the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceedings (including any impleaded parties) include both the indemnifying party and the indemnified party and representations of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Indemnified Party indemnifying party shall not settle or compromise be liable for any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder settlement of any proceeding effected without the prior its written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against ) but if settled with such consent or if there be a final judgment for the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Partyplaintiff, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation indemnifying party agrees to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless indemnified party from and against any losses, damages, expenses and liabilities arising out loss or liability by reason of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim settlement or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basisjudgment.
Appears in 1 contract
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP JACKSON STAFFING shall hold harmless harxxxxx and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP JACKSON STAFFING set forth in this Agreementthxx Xxxxement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP JACKSON STAFFING contained in any agreement axxxxxxxt or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP JACKSON STAFFING and its representativesrepresentxxxxxx, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom there from in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Samples: Acquisition Agreement (Imaging Technologies Corp/Ca)
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP Sellers shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP Sellers set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP Sellers contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP Sellers and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Samples: Agreement to Acquire Shares (Imaging Technologies Corp/Ca)
Survival and Indemnification. 8.1 (a) All representations, warranties, of the covenants and agreements contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall Agreement, and in any other agreement or document delivered pursuant to this Agreement, will survive the Closing for the applicable statute (including on termination of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such partyAgreement).
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by (b) Each Party agrees that if it fails to observe or arising from (a) any misrepresentation or breach of warranty or failure to fulfill perform any covenant or agreement of GLCP set forth obligation, or breaches any representation and warranty, contained in this Agreement, or in any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant heretoto this Agreement it will indemnify the other Party and each director, officer or employee of the other Party from and against the full amount of any Loss that each may suffer as a result of that failure. Each Party also agrees to indemnify and hold harmless the other Party and each director, officer or employee of the other Party from and against the full amount of any Loss that each may suffer as a result of a third party claim, even if that third party claim is ultimately found not to be meritorious, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failureis settled with no verdict on its merits being reached.
8.2.2 ITEC shall indemnify, (c) Draganfly will indemnify and hold harmless DroneCorp. and defend GLCP and its representativeseach director, officers, members, managers, directors, affiliates, successors and assigns, officer or employee of DroneCorp from and against any and all claims related toLoss that each may suffer resulting from the termination of this Agreement under the terms of Section 8.2, caused by if that Loss arises from the non-fulfilment or arising from (i) any misrepresentation, non-performance of the relevant conditions as a result of a breach of warranty covenant, or failure to fulfill representation and warranty, of Draganfly.
(d) DroneCorp. will indemnify and hold harmless Draganfly and each director, officer or employee of DroneCorp from and against any covenant Loss that each may suffer resulting from the termination of this Agreement under the terms of Section 8.2, if that Loss arises from the non-fulfilment or agreement non-performance of ITEC contained herein the relevant conditions as a result of a breach of covenant, or representation and warranty, of DroneCorp (other than in any agreement connection with not completing the Financing).
(e) If the Party or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such indemnified Person entitled to make a misrepresentation, breach or failure.
8.3 The party seeking Claim for indemnification under this article Agreement (the "an “Indemnified Party"”) shall becomes aware of a Loss or potential Loss in respect of which the Indemnifying Party has agreed to indemnify it under this Agreement, the Indemnified Party will promptly give prompt written notice (an “Indemnity Notice”) of its Claim or potential Claim for indemnification (an “Indemnity Claim”) to the indemnifying party (the "Indemnifying Party") . An Indemnity Notice must specify whether the Indemnity Claim arises as the result of the facts and circumstances giving rise to any claim, provided, however, that a Claim made against an Indemnified Party's failure to give such notice shall Party by a Person who is not impair a Party (a “Third Party Claim”) or otherwise affect such as a result of a Loss that was suffered directly by an Indemnified Party's right to indemnification except Party (a “Direct Claim”), and must also specify with reasonable particularity (to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise information is available, pursuant to ):
(i) the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor factual basis for the Indemnity Claim; and
(ii) the amount of the indemnified party's officersIndemnity Claim, directors, representatives, subsidiaries, affiliates, successors and assignsif known.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Survival and Indemnification. 8.1 All Notwithstanding any investigation conducted by any party hereto or any information any party may receive, all representations, warranties, covenants and agreements contained in this Agreement shall survive only or in any schedule, certificate, document or statement delivered pursuant hereto hereto, shall survive (and not be deemed to be material affected in any respect by) (i) in the case of MINRAD only until the Closing and to have been relied upon by (ii) in the parties heretocase of TAC and AS, until the second anniversary of the Effective Time. All Notwithstanding the foregoing, the representations and warranties contained in Section 14 of this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determinedindefinitely. The representations and warranties contained in which terminate on the second anniversary of the Effective Time, and the liability of any party with respect thereto pursuant to this Agreement Section 11, shall not be affected by terminate with respect to any investigationclaim, verification whether or examination by any not fixed as to liability or liquidated as to amount, with respect to which the appropriate party hereto or by anyone on behalf has been given written notice setting forth the facts upon which the claim for indemnification is based prior to the second anniversary of any such partythe Effective Time, as the case may be.
8.2.1 GLCP (a) The parties shall indemnify each other as set forth below:
(1) Subject to the provisions of this Section 11, each of the Major Shareholders, shall jointly and severally indemnify and hold harmless MINRAD and defend ITEC MINRAD's past, present and its successors future officers, directors, stockholders, employees, attorneys, and assigns agents (and after the Closing, the Major Shareholders shall also indemnify TAC) (collectively, the "Indemnified Parties") from and against any and all claims related toLosses (as defined below) including, caused by without limitation, any reasonable legal expenses to the extent arising from, relating to or arising from (a) any misrepresentation or breach otherwise in respect of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, inaccuracy or breach of any representation or warranty of TAC contained in Sections 6 or 14 of this Agreement (as of the date hereof, or as of the Closing) or of any representation, warranty or failure to fulfill statement made in any covenant schedule, certificate, document or agreement instrument delivered by TAC or any officer or any of ITEC contained herein them at or in any agreement or other document delivered pursuant heretoconnection with the Closing, or (ii) the breach by TAC, of or failure by TAC to perform any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach its covenants or failure.
8.3 The party seeking indemnification under agreements contained in this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, Agreement; provided, however, that an Indemnified Party's failure to give such notice (A) no Major Shareholder shall not impair or otherwise affect such Indemnified Party's right to indemnification except be responsible for any Losses with respect to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained matters referred to in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms clauses (1) of this Agreement or applicable lawSection 11(a), until the cumulative aggregate amount of all such Losses exceeds $5,000, in which event the Major Shareholders shall then be liable for all such cumulative aggregate Losses up to $25,000, including the first $5,000. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors Each Major Shareholder specifically acknowledges and assigns.
8.4 The agrees that any MINRAD Indemnified Party may proceed against any Major Shareholder under this Section 11 without contemporaneously, or at any time, proceeding against any other Major Shareholders. As used herein, "Losses" shall not settle mean any and all demands, claims, complaints, actions or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent causes of the Indemnifying Party action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, diminution in value, deficiencies, payments, liabilities or obligations (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or including those arising out of any claim by a person other than action, such as any settlement or compromise thereof or judgment or award therein) and any fees, costs and expenses related thereto, and the Indemnified Partyterm "legal expenses" shall mean the fees, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense costs and expenses of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest kind incurred by any party indemnified herein and its obligation to indemnify the Indemnified Party counsel in investigating, preparing for, defending against or providing evidence, producing documents or taking other action with respect to the claims any threatened or asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Survival and Indemnification. 8.1 All 10.1 The representations, warranties, covenants and agreements of Seller, Purchaser and Stockholder contained in this Agreement herein or in any document schedules, exhibits or other documents delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in connection with this Agreement shall survive the Closing for without limitation as to time, unless the applicable statute covenant or agreement specifies a term, or unless the term of limitations periodthe covenant or agreement is limited by law, in which case such covenant or agreement shall survive until the expiration of such specified term, notwithstanding any investigation made by or on behalf of Seller, Purchaser or Stockholder.
10.2 From and all representations, warranties and covenants to be made or performed after the Closing Date, Seller, Stockholder and Purchaser, as the case may be, shall survive the Closing until made or performed indemnify and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns the other (the party seeking indemnification being referred to as the “Indemnified Party”) from and against any and all claims related toclaims, caused losses, liabilities and damages, suits, proceedings, actions, investigations, penalties, costs and expenses, including, without limitation, amounts paid in settlement, reasonable costs of investigation and reasonable fees and disbursements of counsel (whether suit is instituted or not and, if instituted, whether at the trial or appellate level), incurred by either of them (collectively, the “Claims”, or singly, a “Claim”) arising out of or resulting from (a) the inaccuracy of any misrepresentation representation or warranty, or the breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreementagreement, or any other misrepresentation, breach of representation or warranty contained herein or failure to fulfill a covenant or agreement by GLCP contained in any agreement instrument or other document certificate delivered pursuant hereto, or in the case of Seller and Stockholder, any Claim arising from any action prior to the Closing Date, by the party against whom indemnification is sought (b) the “Indemnifying Party”).
10.3 The Indemnified Party shall promptly notify the Indemnifying Party in writing of any and all claims Claim for indemnification, specifying in detail the basis of third parties made based upon such Claim, the facts alleged thatpertaining thereto and, if trueknown, would have constituted the amount, or an estimate of the amount, of the liability arising therefrom. The Indemnified Party shall provide to the Indemnifying Party as promptly as practicable thereafter all information and documentation necessary to support and verify the Claim asserted and the Indemnifying Party shall be given reasonable access to all books and records in the possession or control of the Indemnified Party or any of its affiliates which the Indemnifying Party reasonably determines to be related to such a misrepresentation, breach or failureClaim.
8.2.2 ITEC 10.4 If any person or entity not a party to this Agreement shall indemnifymake any demand or claim or file or threaten to file or continue any lawsuit, hold harmless and defend GLCP and its representativeswhich demand, officersclaim or lawsuit may result in claims against an Indemnified Party pursuant to any indemnification provisions of this Agreement, membersthen, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant heretosuch event, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article promptly after notice by the Indemnified Party (the "Indemnified Party"“Notice”) shall give prompt written notice to the indemnifying party Indemnifying Party of such demand, claim or lawsuit (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's the failure to give such notice Notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except relieve the Indemnifying Party of its obligations hereunder unless, and only to the extent that that, such failure caused the damages for which the Indemnifying Party demonstrates actual damage caused is obligated to be greater than they would otherwise have been had the Indemnified Party given prompt notice hereunder), the Indemnifying Party shall have the option, at its cost and expense, to retain counsel for the Indemnified Party (which counsel shall be selected by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant or be reasonably satisfactory to the terms of this Agreement Indemnified Party), to defend any such demand, claim or applicable lawlawsuit. All indemnification rights shall be deemed to apply in favor of Thereafter, the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise be permitted to participate in such defense at its own expense, provided that, if the named parties to any claim by a third party for which such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party is entitled to indemnification hereunder without the prior written consent of or if the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against proposes that the same counsel represent both the Indemnified Party and the Indemnifying Party shall not have taken control and representation of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise both parties by the same counsel would be inappropriate due to indemnification hereunder resulting from actual or arising out of any claim by a person other than potential differing interests between them, then the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to shall have the right to retain its own counsel at the cost and expense of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted thereinParty. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel fails to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent respond within ten days after receipt of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereofNotice, the Indemnified Party may defend retain counsel and conduct the defense of such demand, claim in such a manner or lawsuit, as it may in its sole discretion deem appropriateproper, including settling such claim after giving notice at the sole cost and expense of the same Indemnifying Party.
10.5 With regard to Claims of third parties for which indemnification is payable hereunder, such indemnification shall be paid by the Indemnifying Party on upon a current basis and upon receipt of such terms invoices and other supporting documentation as the Indemnified Party it may deem appropriate, and reasonably request.
10.6 The right to indemnification contained in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party Section 10 shall not be entitled subject to question set-off against other claims for indemnification, whether or not arising from the manner same event giving rise to any claim for indemnification. Any such indemnification payments hereunder shall be sufficient so that, after considering the tax, timing and other effects of the Claims in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third partyquestion, the Indemnified Party will be restored to the same after-tax position as it would have been in had the Claims not been incurred, imposed upon or asserted against the Indemnified Party.
10.7 An Indemnifying Party shall cooperate with be subrogated to all rights and causes of action of the Indemnified Party pertaining to an indemnified Claim and the matters from which it arose, upon payment in full by the Indemnifying Party in of the defense of such action (including making a personal contact Claim with the third party if deemed beneficial) respect to which indemnity is sought, and the relevant records of party Indemnified Party shall execute such documents and take such other actions as shall be made available on a timely basisreasonably requested by the Indemnifying Party to effectuate such subrogation.
Appears in 1 contract
Survival and Indemnification. 8.1 All representations, warranties, covenants and agreements contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2 8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP and its representatives, officers, members, managers, directors, affiliates, successors and assigns, from and against any and all claims related to, caused by or arising from (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party (the "Indemnifying Party") of the facts and circumstances giving rise to any claim, provided, however, that an Indemnified Party's failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Survival and Indemnification. 8.1 All (a) The representations, warranties, covenants and agreements contained in this Agreement or in any document delivered pursuant hereto shall be deemed to be material and to have been relied upon by the parties hereto. All representations and warranties contained in this Agreement shall survive the Closing of the transactions contemplated by this Agreement for the applicable statute of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate (absent fraud or intentional misrepresentation) one year from the Closing Date. Any claim for indemnification that is asserted within one year of the Closing Date shall survive until resolved or judicially determined. The representations and warranties contained in this Agreement shall not be affected by any investigation, verification or examination by any party hereto or by anyone on behalf of any such partylimitations.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or failure to fulfill any covenant or agreement of GLCP set forth in this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (b) any The Company agrees to indemnify and all claims of third parties made based upon facts alleged that, if true, would have constituted such a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend GLCP the Purchaser and its representativesAffiliates, and their respective directors, officers, trustees, members, managers, directorsemployees, affiliates, successors investment advisors and assignsagents, from and against any and all claims related tolosses, caused claims, damages, liabilities and expenses (including without limitation reasonable and documented attorney fees and disbursements and other documented out-of-pocket expenses reasonably incurred in connection with investigating, preparing or defending any action, claim or proceeding, pending or threatened and the costs of enforcement thereof) (collectively, “Losses”) to which such Person may become subject as a result of any breach of representation, warranty, covenant or agreement made by or arising to be performed on the part of the Company under this Agreement, and will reimburse any such Person for all such amounts as they are incurred by such Person solely to the extent such amounts have been finally judicially determined not to have resulted from such Person’s actual fraud or willful misconduct.
(c) Any Person entitled to indemnification hereunder shall (i) any misrepresentation, breach of warranty or failure to fulfill any covenant or agreement of ITEC contained herein or in any agreement or other document delivered pursuant hereto, or (ii) any and all claims of third parties made based upon facts alleged that, if true, would constitute such a misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified Party") shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the "Indemnifying Party"defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (A) the indemnifying party has agreed in writing to pay such fees or expenses, (B) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person or (C) in the reasonable judgment of any such Person, based upon written advice of its counsel, a conflict of interest exists between such Person and the indemnifying party with respect to such claims (in which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the facts indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person); and circumstances giving rise to any claim, provided, howeverfurther, that an Indemnified Party's the failure of any indemnified party to give such written notice as provided herein shall not impair or otherwise affect such Indemnified Party's right to indemnification relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained indemnifying party in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a third party for which the Indemnified Party is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within fifteen (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice to the Indemnified Party, assume the defense of any such claim without prejudice to or litigation. It is understood that the right indemnifying party shall not, in connection with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any time for all such indemnified parties. No indemnifying party will, except with the consent of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claimindemnified party, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising fromor enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation. No indemnified party will, any claim, without except with the prior written consent of the Indemnified Partyindemnifying party, unless the Indemnifying Party admits in writing its liability consent to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled to participate in the defense entry of any such action with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of judgment or enter into any such claim resulting therefrom in accordance with the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, the Indemnifying Party shall not be entitled to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement. In the event of a claim by a third party, the Indemnified Party shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basis.
Appears in 1 contract
Samples: Securities Purchase Agreement (Kura Oncology, Inc.)
Survival and Indemnification. 8.1 All (a) Except as otherwise provided herein, the several representations, warranties, covenants covenants, and agreements of the parties hereto contained in this Agreement (or in any document delivered pursuant hereto to the terms hereof) shall be deemed to have been made on the Closing Date, shall be deemed to be material and to have been relied upon by the parties hereto. All representations Buyer and warranties contained in this Agreement Sellers notwithstanding any investigation made by Buyer or Sellers, shall survive the Closing Date and shall remain operative and in full force and effect for the applicable statute a period of limitations period, and all representations, warranties and covenants to be made or performed after the Closing shall survive the Closing until made or performed and for the applicable statute of limitations period after their due date. The indemnity obligations of each party to this Agreement shall terminate eighteen (absent fraud or intentional misrepresentation18) one year from months following the Closing Date. Any , except as to any matters with respect to which a bona fide written claim has been made or an action at law or in equity shall have commenced before such date, in which event survival of the applicable representations and warranties shall continue (but only with respect to, and the extent of, such claim) until the final resolution of such claim or action including all applicable periods for indemnification appeal, provided, however, that is asserted within one year the representations and warranties of Sellers contained in the first sentence of Section 3.6 and Sections 3.14 and 3.16 hereof shall survive until ninety (90) days following the expiration of all applicable statutes of limitations (including periods of extension, whether automatic or permissive) applicable to claims arising from such representations and warranties, and provided, further, that the respective covenants and agreements of Buyer and Sellers contained in Sections 7, 8 and 9 shall continue without any time limitation.
(b) Sellers shall, jointly and severally, indemnify and hold Buyer and its Affiliates and their respective officers, directors, managers, members, stockholders, employees, agents and successors and assigns harmless from and against (i) any and all loss, cost, liability, damage and expense (including reasonable legal fees, expert costs and other expenses incident thereto) (each a “Loss” and, collectively, “Losses”) arising out of or resulting from any inaccuracy, misrepresentation or breach or non-fulfillment of any representation, warranty, covenant or agreement of any Seller under this Agreement or any document delivered pursuant to the terms hereof; (ii) other than Assumed Obligations, any and all liabilities and obligations of Sellers of any nature whatsoever, whether accrued, absolute, fixed, contingent, or otherwise known or unknown to Sellers, whether arising before or after the Closing, including, without limitation, any liability of Sellers deemed to have been assumed by Buyer by virtue of common law, statute or regulation or failure to comply therewith, which liability Buyer has not expressly agreed to assume hereunder, including without limitation, bulk transfer laws in effect in the State of New York; (iii) any liability or obligation for Taxes, whether or not accrued, assessed or currently due and payable (a) of Sellers, whether or not such Taxes relate to the operation of the Business, (b) arising from the operation of the Business or the ownership of the Assets on or prior to the Closing Date or (c) arising out of the consummation of the transactions 18 contemplated hereby (for purposes of this Section 9(b), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Assets for a Tax period that includes (but does not end on) the Closing Date shall survive until resolved or judicially determined. The representations be apportioned between Sellers, on one hand, and warranties contained Buyer, on the other hand, based upon the number of days of such period included in this Agreement shall not be affected by the Tax period before (and including) the Closing Date and the number of days of such Tax period after the Closing Date), (iv) Losses with respect to any investigation, verification or examination by any party hereto or by anyone on behalf of any such party.
8.2.1 GLCP shall hold harmless and defend ITEC and its successors and assigns from and against any and all claims related to, caused by or arising from (a) any misrepresentation or breach of warranty or Seller’s failure to fulfill obtain any covenant or agreement of GLCP set forth in third party consents required to effect the transactions contemplated by this Agreement, or any other misrepresentation, breach of warranty or failure to fulfill a covenant or agreement by GLCP contained in any agreement or other document delivered pursuant hereto, or (bv) any and all Losses arising out of workers compensation claims relating to periods on or prior to the Effective Time or any liabilities or obligations arising under any Employee Plan (as defined in Section 3.13), ERISA, or Section 4980B of third parties made based upon facts alleged thatthe Code relating to periods on or prior to the Effective Time, if true(vi) Losses arising from claims by one or more shareholders of a Seller against Buyer or its Affiliates, would have constituted such a misrepresentationSeller or other shareholders of any Seller; and (v) all claims, breach or failureactions, suits, proceedings, demands, assessments, judgments, costs and expenses, including, without limitation, any legal fees and expenses, incident to any of the foregoing.
8.2.2 ITEC (c) Buyer shall indemnifyindemnify and hold Sellers, hold harmless and defend GLCP and its representativeseach of their respective Affiliates, officers, directors, stockholders, members, managers, directorsemployees, affiliates, agents and successors and assigns, harmless from and against any and all claims related to, caused by or arising from (i) any misrepresentationand all Losses arising out of or resulting from any inaccuracy, misrepresentation or breach or non-fulfillment of warranty or failure to fulfill any representation, warranty, covenant or agreement of ITEC contained herein Buyer under this Agreement or in any agreement or other document delivered pursuant heretoby Buyer to Sellers in connection herewith, or (ii) any and all claims Losses arising out of third parties made based upon facts alleged thator in connection with the ownership or operation of the Assets with respect to periods after the Effective Time, if true(iii) the Assumed Obligations, would constitute such a misrepresentation(iv) any and all Losses of any Seller or any of its Affiliates arising out of or otherwise relating to, the Lease Premises Agreements (other than Losses arising out of any failure or defect in performance or breach by any Seller or failureany of its Affiliates of its obligations under any Leased Premises Agreement or Section 10(o) of this Agreement), (v) any and all Losses of any Seller or any of its Affiliates arising out of or otherwise relating to, the Consent Contracts Agreement (other than Losses arising out of any failure or defect in performance or breach by any Seller or any of its Affiliates of its obligations under the Consent Contracts Agreement) and (vi) all claims, actions, suits, proceedings, demands, assessments, judgments, costs and expenses, including, without limitation, any legal fees and expenses, incident to any of the foregoing.
8.3 The party seeking indemnification under (d) In the event of any breach of any representation or warranty contained in this article (Agreement, the "Indemnified Party") shall give prompt written notice to Schedules and Exhibits hereto or in the indemnifying party (documents delivered in accordance with the "Indemnifying Party") terms of this Agreement, the sole and exclusive right and remedy of the facts and circumstances giving rise parties hereto for money damages shall be a claim for indemnification pursuant to any claim, this Section 9; provided, however, that this Section 9(d) shall not restrict the right of a party hereto to bring an Indemnified Party's action for fraud or to seek recovery with respect to Losses arising other than from the breach of a representation or warranty.
(e) The following indemnification procedure shall apply to the foregoing agreements:
(i) The party who is seeking indemnification (the “Claimant”) for a Loss shall give written notice (a “Notice of Claim”) to the party from whom indemnification is sought (the “Indemnitor”) promptly after the Claimant learns of the claim or proceeding, provided, that the failure to give such notice shall not impair or otherwise affect such Indemnified Party's right to indemnification relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. All rights contained in this article are cumulative and are in addition to all other rights and remedies, which are otherwise available, pursuant to the terms of this Agreement or applicable law. All indemnification rights shall be deemed to apply in favor of the indemnified party's officers, directors, representatives, subsidiaries, affiliates, successors and assignsit is actually damaged thereby.
8.4 The Indemnified Party shall not settle (ii) With respect to any third-party claims or compromise any claim by a third party for proceedings as to which the Indemnified Party Claimant is entitled to indemnification hereunder without indemnification, the prior written consent Indemnitor shall have the right to select and employ counsel of its own choosing to defend against any such claim or proceeding, to assume control of the Indemnifying Party (which consent shall not be unreasonably withheld), unless legal action shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control defense of such suit within fifteen claim or proceeding, and (15) days after notification thereof as provided herein. In connection with any claim giving rise to indemnification hereunder resulting from or arising out of any claim by a person other than the Indemnified Party, the Indemnifying Party shall, upon written notice subject to the Indemnified Partylast sentence of this Section 9(e)(ii)) to compromise, assume settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim without prejudice to the right of the Indemnifying Party thereafter to contest its obligation to indemnify the Indemnified Party in respect to the claims asserted therein. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel to conduct the defense in such claims and at its sole cost and expense shall take all steps necessary in the defense or settlement thereofproceeding. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any claim, without the prior written consent of the Indemnified Party, unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party shall be entitled Claimant may elect to participate in the defense of any such action with its own counsel third party claim, and may, at its own sole expense, retain separate counsel in connection therewith. If Notwithstanding the Indemnifying Party does foregoing, (i) the Claimant shall not assume the defense of settle or compromise any such third party claim resulting therefrom in accordance with without the terms hereof, the Indemnified Party may defend such claim in such a manner as it may deem appropriate, including settling such claim after giving notice prior written consent of the same Indemnitor and (ii) the Indemnitor shall not settle or compromise any such third party claim without the prior written consent of the Claimant, provided, that, in each case, consent shall not be unreasonably withheld.
(f) The joint and several obligations of Sellers pursuant to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate, and in any action by the Indemnified Party seeking indemnification from the Indemnifying Party in accordance with the provisions of this article, Section 9 are subject to the Indemnifying Party following limitations:
(i) Sellers shall not be liable to Buyer under this Section 9 until liabilities incurred exceed $25,000 in the aggregate and then only to the extent of such excess;
(ii) Buyer shall not be entitled to question recover from Sellers under this Section 9 in excess of $800,000 in the manner aggregate, and any payment due to Buyer under this Section 9 shall be payable solely out of the Escrow Funds (if and to the extent they are available) in which accordance with Section 2.5 and the Indemnified Party defended Escrow Agreement; and
(iii) the limitations of the liability of Sellers and restriction on source of recovery by Buyer set forth in clauses (i) and (ii) above shall not be applicable to (A) liabilities arising by reason of a breach of Sellers’ representations, warranties and agreements contained in the first sentence Section 3.6, Section 3.14, Section 3.16 or Section 8 hereof, (B) any claims determined by a court of competent jurisdiction to arise from fraud by any Seller or (C) Losses arising other than from the breach of a representation or warranty.
(g) Buyer’s obligations pursuant to the provisions of this Section 9 are subject to the following limitations:
(i) Buyer shall not be liable to Sellers under this Section 9 until liabilities incurred exceed $25,000 in the aggregate and then only to the extent of such claim excess;
(ii) Sellers shall not be entitled to recover from Buyer under this Section 9 in excess of $800,000 in the aggregate; and
(iii) The limitations of Buyer’s liability set forth in clauses (i) and (ii) above shall not be applicable to (A) any claims determined by a court of competent jurisdiction to arise from fraud by Buyer or (B) Losses arising other than from the breach of a representation or warranty.
(h) Each Claimant shall take commercially reasonable actions to mitigate the amount or nature of any claim for indemnification, including pursuing insurance claims and claims against third parties, and shall reasonably consult and cooperate with each Indemnitor with a view towards mitigating such settlement. In the event of amounts in connection with claims for which a claim Claimant seeks indemnification hereunder; provided, however, that any costs and expenses incurred by a Claimant in pursuing insurance claims and claims against third party, the Indemnified Party parties or otherwise pursuant to this Section 9(h) shall cooperate with the Indemnifying Party in the defense of such action (including making a personal contact with the third party if deemed beneficial) and the relevant records of party shall be made available on a timely basisconstitute indemnifiable Losses.
Appears in 1 contract
Samples: Asset Purchase Agreement (G Iii Apparel Group LTD /De/)
