Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained in this Agreement shall survive such Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim. (i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed. (c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay. (d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party. (e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 2 contracts
Sources: Purchase Agreement (Us Search Corp Com), Purchase Agreement (Us Search Corp Com)
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before Section 8.1 Survival. Other than the Closing Date) representations contained in this Agreement Sections 4.8 and 4.10 (which shall survive such Closing for two yearsas long as the Buyer owns Purchased Shares), except that the representations contained in Sections 3.2 and 3.3(a) (i) with respect to claims asserted pursuant to this which shall survive indefinitely), the representations contained in Section 8.1 before the expiration of the applicable representation or warranty, such claims 3.12 (which shall survive until the sixth anniversary of the date they are finally liquidated or otherwise resolved, (iiof the Initial Closing) Sections 3.9, 3.12 and the representations contained in 3.8 and 3.13 (which shall survive until the end of for a period equal to the applicable statute of limitationslimitations for any taxes or penalties imposed and payable in breach of such representations and warranties), and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be all representations, warranties and covenants (except as provided by such party hereunder. No claim may be commenced under the last sentence of this Section 8.1 (or otherwise8.1) following expiration covenants and agreements of the survival periodparties contained herein, and upon such expiration including indemnity or indemnification agreements contained herein, or in any Schedule or Exhibit hereto, or any certificate, document or other instrument delivered in connection herewith shall survive the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claimInitial Closing, the amount claimed (if known or reasonably estimable)Second Closing, any Subsequent Closing and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each termination of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result 9.1 hereof (notwithstanding the exercise of which Buyer's put option pursuant to Section 2.9 hereof) until the Indemnifying Party may become obligated to twelve month anniversary of the Indemnified Party hereunderlatest of the Initial Closing, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying PartySecond Closing, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party Subsequent Closing and the Indemnifying Party, the Indemnifying Party shall have the right termination of this Agreement pursuant to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriateSection 9.1 hereof; provided, however, that there shall be no termination with respect to any representation and warranty as to which either (ia) counsel retained by a bona fide claim has been asserted prior to such date or (b) the Indemnifying Party is reasonably satisfactory Company had actual knowledge of any breach thereof prior to any Closing Date. No Action or proceeding may be brought with respect to any of the representations and warranties, or any of the covenants or agreements which survive until such twelve month anniversary, unless written notice thereof, setting forth in reasonable detail the claimed misrepresentation or breach of warranty or breach of covenant or agreement, shall have been delivered to the Indemnified Party and (ii) the Indemnifying Party will not consent party alleged to any settlement imposing any obligations on any other party hereto, unless have breached such party has consented in writing representation or warranty or such covenant or agreement prior to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceedingtwelve month anniversary; provided, however, that in that, if Buyer shall have complied with this Section 8.1, the event that damages for breach by the defendants inCompany of any of the representations and warranties, or targets ofany of the covenants or agreements which survive until such twelve month anniversary, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder measured with respect to any all of Buyer's purchases of Company Common Stock hereunder and not with respect only to Buyer's purchases hereunder made prior to such claimtwelve month anniversary, action or proceeding in which it or but such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party measurement shall not in any event include any shares of Company Stock that Buyer may have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (purchased other than from the gross negligence Company. Those covenants or willful misconduct referred agreements that contemplate or may involve actions to be taken or obligations in subclause (b)(ii) above) effect after the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company Initial Closing shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability survive in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerationsaccordance with their terms.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Lfsri Ii Alternative Partnership L P), Stock Purchase Agreement (Fac Realty Trust Inc)
Survival Indemnification. (a) All representationsThe representations and warranties set forth in Sections 2.1, warranties2.2, 2.4, 2.10 and 2.19, and all of the covenants and agreements (except covenants made in this Agreement, the Schedules and agreements which are expressly required to be performed Exhibits hereto and are performed in full on any other agreement, certificate, document or before instrument furnished in connection with the Closing Date) contained shall survive the Closing indefinitely and shall in no way be affected by any investigation or knowledge of the subject matter of any such investigation made by or on behalf of the Purchaser or the Sellers. All other representations and warranties set forth in this Agreement shall survive such the Closing for two yearsa period of 24 months, except that for the representations and warranties set forth in the preceding sentence and the representations and warranties contained in Sections 2.8, 2.14, 2.16 and 2.18 which shall survive the Closing until sixty (i60) with respect to claims asserted pursuant to this Section 8.1 before days after the expiration of the applicable statute of limitations period (after giving effect to any waivers and extensions thereof) and, in each instance, all such representations and warranties shall in no way be affected by any investigation or knowledge of the subject matter of any such investigation made by or on behalf of the Purchaser or the Sellers.
(b) From and after the Closing, the Purchaser agrees, to hold harmless, defend and indemnify the Sellers and their respective successors and permitted assigns (all of the foregoing are collectively referred to as the “Seller Indemnitees”) against any and all damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and expenses) (“Losses”), whether or not arising out of third-party claims, based upon, or arising out of, or relating to, (i) any inaccuracy in, or any breach by the Purchaser of any representation or warrantywarranty or other statement contained in this Agreement, such claims shall survive until the date they are finally liquidated Schedules or otherwise resolvedExhibits hereto or any other agreement, certificate, document or instrument furnished pursuant to this Agreement in connection with the Closing, (ii) Sections 3.9any breach by the Purchaser of any covenant set forth in this Agreement, 3.12 and 3.13 shall survive until the end Schedules or Exhibits hereto or any other agreement, certificate, document or instrument delivered in connection with the Closing or (iii) or (iii) any claims arising from Purchaser’s operation of the applicable statute of limitationsCompany after the Closing (clauses (i), (ii) and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummatedtogether, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such “Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (iIndemnifiable Claims”), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled From and after the Closing, each Seller and ▇. ▇▇▇▇ hereby agrees to indemnity hereunder jointly and severally hold harmless, defend and indemnify the Purchaser, its Affiliates and each of their partners, executive officers, directors, employees, stockholders, members, agents and representatives (an "Indemnified Party "collectively, referred to as the “Purchaser Indemnitees”) asserts against any and all Losses, whether or not arising out of third-party claims, based upon, or arising out of, or relating to, (i) any inaccuracy in, or any breach by any of the Sellers of any representation or warranty or other statement contained in this Agreement, the Schedules or Exhibits hereto or any other agreement, certificate, document or instrument furnished pursuant to this Agreement in connection with the Closing, (ii) any breach by any of the Sellers or ▇. ▇▇▇▇ of any covenant set forth in this Agreement, the Schedules or Exhibits hereto or any other agreement, certificate, document or instrument delivered in connection with the Closing, (iii) any adjustments/true-ups in excess of $20,000 for any pre-Closing Date calendar month for payments received from Catamaran, Inc., formerly known as SXC Health Solutions, Inc., for prior billing periods pursuant to that certain Agreement for Pharmacy Benefit Administration Services, dated as of January 23, 2004, by and between SXC Health Solutions, Inc. and the Company, as amended by Amendment Agreement dated December 1, 2005, (iv) any party hereto liability arising from, or related to, the Subsidiary Transfer or (v) any liabilities or obligations of any Subsidiary of the "Indemnifying Party ") has become obligated Company relating to the Indemnified Party pursuant period prior to Section 8.1(bthe date hereof (clauses (i), or if any suit(ii), action(iii), investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder(iv) and (v) together, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay“Seller Indemnifiable Claims”).
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the An Indemnifying Party shall have the right to investigatereimburse, defendpromptly following request therefor, settle or otherwise handleall reasonable expenses incurred by an Indemnified Party in connection with any Indemnifiable Claim, with the aforesaid cooperationincluding, without limitation, any claimthreatened, pending or completed action, suit, action arbitration, investigation or other proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants inarising out of, or targets ofrelating to, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified PartyIndemnifiable Claim.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or intends to seek indemnification pursuant to this Section 5.1, such Indemnified Party shall promptly notify the Indemnifying Party in writing of such claim. The Indemnified Party will provide the Indemnifying Party with prompt notice of any third party claim in respect of which indemnification is insufficient sought. The failure to hold it harmless as and provide either such notice will not affect any rights hereunder except to the extent contemplated the Indemnifying Party is materially prejudiced thereby.
(f) If such claim involves a claim by subclauses a third party against the Indemnified Party, the Indemnifying Party may, within thirty (b), (c30) calendar days after receipt of the notice provided pursuant to Section 5.1(e) and (d) above, then the Company shall contribute upon notice to the amount paid Indemnified Party, assume, through counsel of its own choosing and at its expense, the settlement or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one handdefense thereof, and the Purchasers Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection therewith; provided that the Indemnified Party may participate in such settlement or defense through counsel chosen by it and at its own expense. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with a third party claim which relates to Losses suffered hereunder, the Indemnified Party may defend against, negotiate, and with the consent of the Indemnifying Party, such consent not to be unreasonably withheld, settle or otherwise deal with such third party claim. The failure of the Indemnifying Party to participate in, conduct or control the defense of a third party claim shall not relieve the Indemnifying Party of any obligation it may have hereunder. No settlement of any such claim shall limit the Indemnified Party’s indemnification rights for any other Losses which are not expressly covered by a settlement and the Indemnifying Party shall only be relieved from liability for Losses covered by a settlement to the extent the settlement provides an unqualified release from all liability in respect of the applicable Indemnified Partyindemnification claim.
(g) Without limiting any remedies available at Law or in equity, as the case Purchaser shall have the right to set off any amounts to which it may bebe entitled in connection with an Indemnifiable Claim against any amounts otherwise payable to the Sellers.
(h) The rights to indemnification set forth in this Section 5.1 are in addition to, on the other handand not in limitation of, as well as all rights and remedies to which any other relevant equitable considerationsparty may be entitled. All remedies provided under this Agreement, by Law or otherwise afforded to any party, shall be cumulative and not alternative.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Tabula Rasa HealthCare, Inc.), Membership Interest Purchase Agreement (Tabula Rasa HealthCare, Inc.)
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the a Closing Date) contained in this Agreement shall be deemed made at each Closing as if made at such time and shall survive such Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 10.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.93.10, 3.12 3.15 and 3.13 3.16 shall survive until the end of the applicable statute of limitationslimitations (as waived, tolled or amended), and (iii) Section 3.2 and this Section 8.1 10.1 shall survive indefinitely. All statements as to factual matters contained in any certificate certificate, document or other instrument executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 10.1 (or otherwise) following expiration of the survival periodapplicable period of survival, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and the Purchaser, its partners, Affiliates, and their respective officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such the Purchaser or any of their Affiliates within the meaning of either Section section 15 of the Securities Act or Section section 20 of the Exchange Act and any partner, member or stockholder of any of them from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.not
Appears in 2 contracts
Sources: Securities Purchase Agreement (Internet Pictures Corp), Securities Purchase Agreement (Image Investor Portfolio a Sep Ser of Memphis Angels LLC)
Survival Indemnification. (a) All representations9.1 Survival of Representations, warrantiesWarranties and Agreements. The representations and warranties of the parties contained in Articles III and IV shall, covenants and agreements (except covenants and agreements which are expressly required subject to be performed and are performed in full the proviso to this sentence, terminate on or before the date that is 18 months after the Closing Date) contained in this Agreement shall survive such Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to representation and warranties in Sections 3.1, 3.2 and 3.20, and the Indemnified Party last sentence of Section 3.3 and in Sections 4.1, 4.2, 4.6, 4.7, 4.12 and 4.13 shall survive indefinitely, (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party heretorepresentations and warranties in Section 3.7 shall survive until ninety (90) days following the expiration of the applicable statute of limitation for the final assessment or collection of the relevant Taxes, unless such party has consented or in writing to such settlement. Notwithstanding anything to the contrary contained hereincase of Taxes of or otherwise imposed upon a Transferred Entity, if later, the Indemnifying Party may retain one firm final assessment or collection of counsel the relevant Taxes (the representations of Honeywell described in clauses (i) and (ii), the “Seller Fundamental Representations and Warranties” and each a “Seller Fundamental Representation and Warranty”), and (iii) the representations and warranties in Section 3.11 shall terminate on the date that is three (3) years after the Closing Date. All covenants and agreements contained herein which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect in accordance with their terms. For the avoidance of doubt, all covenants and agreements contained in this Agreement relating to represent all Indemnified Parties Taxes and any claims against or obligations of Sellers pursuant to Section 5.15 shall survive the Closing and remain in such claimfull force and effect until ninety (90) days following the expiration of the applicable statute of limitation for the final assessment or collection of the relevant Taxes, action or proceeding; provided, however, that in the event that case of Taxes of or otherwise imposed upon a Transferred Entity, if later, the defendants in, final assessment or targets of, any such claim, action collection of the relevant Taxes. The period of time a representation or proceeding include more than one Indemnified Party, and any Indemnified Party warranty or covenant or agreement survives the Closing pursuant to this Section 9.1 shall have reasonably concluded, based on be the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder “Survival Period” with respect to such representation or warranty or covenant or agreement. In the event notice of any claim for indemnification under this Article IX shall have been given within the applicable Survival Period and such claim has not been finally resolved by the expiration of such Survival Period, the representations or warranties or covenants or agreements that are the subject of such claim shall survive (but only, for any such claimclaim that is reasonably estimable, action or proceeding to the extent of and in which it or such other person may become involved or is named the amount of the claim as defendant made prior to the expiration of the Survival Period, and otherwise for the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation full amount of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any until such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Partyis finally resolved.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Honeywell International Inc)
Survival Indemnification. 6.1 All representations, warranties and agreements made by Seller, Parent or Purchaser in this Agreement, the schedules annexed hereto, the documents delivered at the Closing and in any certificates delivered pursuant hereto or thereto will survive the Closing; provided, however, that any such representations and warranties shall survive only for the applicable "Survival Period" (a) All as hereinafter defined), and shall thereafter be of no further force or effect. Seller, Parent and Purchaser shall be entitled to rely upon the representations and warranties made by each other in this Agreement regardless of any information or knowledge obtained in the course of any investigation or otherwise, and shall be entitled to all available rights and remedies at law and in equity in the event of the breach of any such warranties or representations made by such other party. Additionally, the parties agree that the indemnification obligations set forth in this Article VI shall survive with respect to all claims for indemnification made within the applicable Survival Period until finally determined in accordance with the terms hereof. The representations, warranties, covenants covenants, and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained in this Agreement shall survive such Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to giveinvestigation, verification, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure examination by any party hereto or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of by any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations Person acting on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion behalf of any such claim party. For purposes of this Agreement, the representations in Sections 3.1, 3.2, 3.3, 4.1, 4.2 and 4.3 shall have a "Survival Period" ending on the last day on which claims may be brought under this Agreement under any applicable statute of limitations, the representations in Section 3.10 shall have a "Survival Period" ending on the last day on which claims may be brought against the Seller or institution the Purchaser under any applicable statute of any such action or proceeding. In limitations governing Tax matters, the representations in Section 3.6 shall have a "Survival Period" ending two (2) years from the date hereof and all other situations, the Indemnified Party representations herein shall have a "Survival Period" ending eighteen (18) months from the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Partydate hereof.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Survival Indemnification. (a) All representationsThe parties hereto, warrantiesintending to modify any applicable statute of limitations, covenants each agree that, (a) subject to Section 8.01(b), the representations and agreements (except covenants warranties in this Agreement and agreements which are expressly required to be performed and are performed in full on or before any agreement and/or certificate delivered pursuant hereto shall terminate effective as of the Closing Dateand shall not survive the Closing for any purpose, and thereafter there shall be no liability on the part of, nor shall any claim be made by, any party or any of their respective Affiliates in respect thereof (whether in contract, in tort or at law or in equity) contained and (b) the covenants in this Agreement shall survive the Closing in accordance with their respective terms only for such period as shall be required for the party required to perform under such covenant to complete the performance required thereby.
(b) The representations and warranties set forth in Section 3.04 (Capitalization) and Section 3A.03 (Capital Stock) will survive the Closing until the date that is six months immediately following the Closing Date (such date, the “Limitation Date”). For the period beginning on the Closing Date and ending on the Limitation Date, the Seller shall indemnify the Purchaser for two years, except that any Damages relating to (i) any breach or inaccuracy of the representations and warranties of the Company set forth in Section 3.04 (Capitalization) or of the Seller set forth in ▇▇▇▇▇▇▇ ▇▇.▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇), (▇▇) any Indebtedness for borrowed money that is not included in the calculation of Estimated Indebtedness or otherwise paid pursuant to Section 1.05 and (iii) any Seller Transaction Expenses that are not included in the calculation of Estimated Seller Transaction Expenses or otherwise paid pursuant to Section 1.05. The Seller’s indemnification obligation shall survive beyond the Limitation Date to the extent written notice of a good faith claim under this Section 8.01(b) is provided to Seller by the Purchaser prior to the Limitation Date, and then only such claim shall survive until final resolution thereof. Any amounts owing by Seller under this Section 8.01(b) shall be satisfied solely and exclusively from the Purchaser Shares or any cash proceeds from the sale of any such Purchaser Shares. In furtherance of the foregoing, Seller agrees that if Seller sells any or all of the Purchaser Shares and distributes cash proceeds of such sale prior to the Limitation Date, (A) Seller shall retain no less than ten million dollars ($10,000,000) from such proceeds through the Limitation Date, and (B) Seller shall retain all or a portion of such cash proceeds sufficient to satisfy any claims pending pursuant to the third sentence of this Section 8.01(b) until the date that all such claims are finally resolved. For purposes of this Section 8.01(b), the Purchaser Shares will be valued by using the average of the volume weighted averages of the trading prices of a share of Purchaser Common Stock on the NASDAQ Global Select Market (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source mutually selected by the parties hereto) on each of the fifteen (15) consecutive trading days ending on (and including) the trading day that is two trading days prior to the date any payment is determined to be finally due in connection with respect to claims asserted the final resolution of any such claim made pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable8.01(b), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts The parties hereto agree that any party hereto (the "Indemnifying Party ") has become obligated provisions in this Agreement relating to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based limits imposed on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder Purchaser’s remedies with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant this Agreement and the Indemnifying Party shall pay transactions contemplated hereby were specifically bargained for between sophisticated parties and were specifically taken into account in the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense determination of the Indemnifying Party and amounts to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel be paid to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified PartySeller hereunder.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Survival Indemnification. (a) All representationsThe representations and warranties of the parties set forth in Article 3 and Article 4 of this Agreement shall survive the Closing for a period of one year after the Closing Date, warranties, subject to the final sentence of subsection (b) below. The covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before of the Closing Date) contained parties set forth in this Agreement shall survive such the Closing for two yearsthe respective periods set forth therein (and until all of the respective obligations set forth therein have been satisfied in full) or, except that if no period is specified therein, indefinitely. The agreements of the parties contained in Article 7, Article 8.1 and this Article 8.2(a) shall survive any termination of this Agreement.
(b) After the Closing Date, Seller shall indemnify and hold Buyer, and any of Buyer's employees, agents or representatives, harmless from and against any liability, loss, damage, claim, cost or expense (including, without limitation, expenses of investigation and defense and reasonable fees and disbursements of counsel), Liens or other obligations of any nature whatsoever (collectively, "Losses"), incurred by any of them and arising out of or based upon (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any by Seller of the its representations, warranties, covenants or agreements made set forth in any of the Documents by the Company this Agreement or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred document or instrument delivered by such Purchaser or any such other party indemnified under this clause and further agrees that Seller at the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. Closing; (ii) Notwithstanding any claim, action, suit, proceeding or investigation of any kind, at law or in equity, arising from acts, omissions, events or other conditions that occurred or existed with respect to the foregoing Assets or the PSO Business at any time prior to the Closing; or (iii) any Retained Liabilities. The indemnification obligations of Seller under clause (i), ) above with respect to its representations and warranties shall terminate on the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent first anniversary of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriateClosing Date; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any claim for indemnification that is asserted or made on or prior to such date, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim; and further provided, action that the foregoing limitations shall not apply to any Losses that may be incurred by Buyer by virtue of or proceeding result from any breach of the representations and warranties set forth in which Articles 3.1, 3.2, 3.3 or 3.4 or from violations of law, fraud or intentional misrepresentation.
(c) As promptly as practicable after its discovery of grounds for a claim for indemnification hereunder, Buyer will deliver a written claim for indemnification to Seller, specifying in reasonable detail the basis therefor and, if known, the amount, or an estimate of the amount, of the Losses arising therefrom. Thereafter, Buyer will provide to Seller all information and documentation reasonably available to it to support and verify such claim. If the facts giving rise to a claim for indemnification hereunder arise out of the claim of any third party, or such other person may become involved or if there is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Partyany claim against a third party, Seller may, with Buyer's election consent, elect to assume the defense or investigation of such claimthe prosecution, action or proceedingwith counsel satisfactory to Buyer, the Indemnified Party shall have the right to employ separate counsel at the sole cost and expense of the Indemnifying Party and Seller. Whether or not Seller chooses to direct assume the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel prosecution of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interestclaims, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts Seller and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate Buyer will cooperate in the defense or investigation of prosecution thereof and will furnish such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel records and information and attend at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall such proceedings as may be borne by the Indemnified Partyreasonably requested in connection herewith.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Asset Purchase Agreement (Interactive Intelligence Inc)
Survival Indemnification. (a) All representations, warranties, covenants The Partnership hereby acknowledges and agreements (except covenants agrees that the representations and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) warranties contained in this Agreement shall survive such Closing for two yearsParagraphs 10 (a) (3), except that (i7) (with respect to claims asserted pursuant representations and warranties made by ▇▇▇▇▇ and each Contributor regarding compliance with ERISA only), (17) and 10(b) shall survive for a period of three (3) years from the Applicable Closing Date for such Subject Property. With respect to this Section 8.1 before all other representations and warranties set forth in Paragraph 10, the expiration representations and warranties made with respect to a Subject Property in Paragraph 10 shall survive for a period of nine (9) months from the Applicable Closing Date for such Subject Property. The representations and warranties of the applicable representation or warranty, such claims Trust and the Partnership shall survive until for nine (9) months from the date they are finally liquidated Applicable Closing Date. In addition, in the event that an Applicable Contributor delivers to the Partnership a tenant estoppel certificate for a tenant (whether prior to, at or otherwise resolvedsubsequent to any Applicable Closing), (ii) Sections 3.9, 3.12 and 3.13 then the Applicable Contributor shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall thereafter be released from all liability relating to such tenant's Lease which the Applicable Contributor may have as a result of its representations, warranties and certificates under Paragraphs 10(a)(6), 10(a)(18) and Paragraph 20(i) below to the extent such representations and warranties relate to matters covered by the tenant estoppel certificate (provided such tenant estoppel contains no information which is materially and adversely contradictory or inconsistent with the information previously provided by the Applicable Contributor to the Partnership with respect to claims under each such section tenant). Any claim that the Trust or the Partnership may have at any time against ▇▇▇▇▇ or any other Contributor or that any Contributor or Participant may have against the Trust or the Partnership for a breach of any such representation or warranty, whether known or unknown, which is not theretofore made asserted by written notice from the Partnership and the Trust to ▇▇▇▇▇ or the Applicable Contributor or by the Indemnified PartyContributor and Participants against the Trust and the Partnership within such three (3) year period or nine (9) month period, as the case may be, will not be valid or effective, and ▇▇▇▇▇ and such Applicable Contributor, the Trust and the Partnership will have no liability with respect thereto. No right Nor shall the Contributors and ▇▇▇▇▇ have an aggregate liability to the Partnership or the Trust for a breach of any representation or warranty exceeding $7,500,000.00 (the "R&W Cap"). If the Partnership or the Trust is successful in an action regarding a breach of a representation or warranty, the Applicable Contributor and ▇▇▇▇▇ shall have the right, at the option of such Applicable Contributor and ▇▇▇▇▇, to redeem Units (at the market price for one Common Share for each Unit at the time such action is completed) or pay such amounts in cash.
(b) Without limitation of any other indemnity obligations of the Contributors or ▇▇▇▇▇ set forth herein, from and after the Initial Closing Date, each Contributor and ▇▇▇▇▇ shall be obligated to indemnify, defend and save and hold harmless the Partnership and the Trust, and their respective partners, trustees, officers and employees, of, from and against any claim and all loss, cost, expense, damage, claim, and liability, including reasonable attorney's fees and court costs, including, without limitation, attorney's fees and costs associated with the enforcement of such Contributor's or Participant's indemnification obligations (hereinafter collectively, the "P&T Losses") which the Partnership or the Trust may suffer or incur, resulting from, relating to, or arising in whole or in part, from or out of (i) any misrepresentation or a breach of a representation or warranty by such Contributor or Participant contained in this Agreement, subject, however, to the time limitations set forth in Paragraph 11(a) above; (ii) all litigation identified on "Exhibit S" to which such Contributor or Participant has ever been a party; (iii) all "non-Property claims and liabilities" (as hereinafter defined) arising out of the Contributor, the Entity Interests in which will be assigned to the Partnership; (iv) a claim, demand, cost or judgment in favor of a third party shall arise party, including, without limitation, any governmental authority, arising from the deposit, storage, disposal, burial, dumping, injecting, spilling, leaking, or other placement or release of Hazardous Substances or Hazardous Wastes in or on any representation, warranty or covenant of an Indemnifying Party herein contained, unless Property conveyed by such third-party claim is filed or lodged against the Indemnified Party on or prior Contributor to the expiration Partnership during Contributor's period of ownership, but only if such Contributor had actual knowledge of the survival period provided such Hazardous Wastes or Hazardous Substances condition and failed to disclose same to the Partnership (except in the case of those environmental remediation conditions which are specifically the subject of the environmental escrow arrangement described in Paragraph 7(j) above, and all other conditions hereunder are satisfied. A claim in which case such Contributor shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees obligated to indemnify and hold the Partnership and the Trust harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against the matters set forth in this subparagraph (iv) with respect to those environmental remediation conditions which are the subject of the environmental escrow arrangement and any additional environmental remediation which may arise as a result thereof, regardless of whether such Contributor had actual knowledge of the same); (v) any and all lossesactions, claimssuits, damages or liabilities resulting from any claiminvestigations, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises proceedings, demands, assessments, audits, judgments; and/or claims arising out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure relating to perform any of the representationsforegoing. This obligation shall survive all Closings contemplated hereby. For purposes of this Agreement, the term "non-Property claims and liabilities" means claims and liabilities which would not have been incurred by the Trust or Partnership had the Trust or Partnership acquired the applicable Property owned by the Applicable Contributor, rather than the Entity Interests, on the terms and conditions, and subject to the representations and warranties, covenants or agreements made contained herein applicable to Property being acquired in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayedfee.
(c) If a person entitled Without limitation of any other indemnity obligations of the Trusts or Partnership set forth herein, from and after the Initial Closing Date, each of the Trust and the Partnership shall be obligated to indemnity hereunder indemnify, defend and save and hold harmless the Contributors and the Participants, and their respective partners, officers and employees, of, from and against any and all loss, cost, expense, damage, claim, and liability, including reasonable attorney's fees and court costs, including, without limitation, attorney's fees and costs associated with the enforcement of such Trust's or Partnership's indemnification obligations (an hereinafter collectively, the "Indemnified Party C&P Losses") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b)which each Contributor and Participant may suffer or incur, resulting from, relating to, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim arising in whole or in part, from or out of (i) any misrepresentation or a breach of a representation or warranty by the defense Trust or the Partnership contained in this Agreement; and (ii) any and all actions, suits, investigations, proceedings, demands, assessments, audits, judgments; and/or claims arising out of such suit, action or proceeding, including making available relating to any information, documents and things in the possession of the Indemnified Party which are reasonably necessary thereforforegoing. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder This obligation shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delaysurvive all Closings contemplated hereby.
(d) In fulfilling its obligations under this Section 8.1, Promptly after providing each Indemnified Party with a receipt by the Partnership or the Trust of written acknowledgment notice of the commencement of any liability under this Section 8.1 as between such Indemnified suit, audit, demand, judgment, action, investigation or proceeding (a "P&T Third Party and Action") or promptly after the Indemnifying PartyPartnership or the Trust incurs any P&T Losses or has knowledge of the existence of any P&T Losses, the Indemnifying Partnership or the Trust, as the case may be, will, if a claim with respect thereto is to be made against any Contributor or ▇▇▇▇▇ (the "P&T Indemnitor") due to such P&T Indemnitor's obligation to provide indemnification hereunder, give such P&T Indemnitor written notice within forty-five (45) days of such P&T Losses or within forty-five (45) days of the Partnership's or the Trust's receipt of notice of the commencement of any P&T Third Party shall Action. Promptly after receiving such notice, the P&T Indemnitor will, upon notice to the Partnership or the Trust, as the case may be, have the right to investigate, defend, settle or otherwise handle, with assume and control the aforesaid cooperation, defense and settlement of any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying P&T Third Party may in Action at its sole discretion deem appropriateown cost and expense; provided, however, that (i) counsel retained it shall be a condition precedent to the exercise of such right by the Indemnifying Party is reasonably satisfactory to P&T Indemnitor that the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented P&T Indemnitor shall agree in writing that the P&T Losses, or the P&T Third Party Action, as the case may be, is properly within the scope of the indemnification obligation and that as between the parties, the P&T Indemnitor shall be responsible to satisfy and discharge such P&T Third Party Action. No P&T Indemnitor shall enter into any resolution or other compromise of a P&T Third Party Action without obtaining the complete release of the Partnership or the Trust, as appropriate, for any liability to all claimants under or pursuant to such settlementP&T Third Party Action. Notwithstanding anything to The Partnership or the contrary contained hereinTrust, as the Indemnifying Party case may retain one firm of counsel to represent all Indemnified Parties in such claimbe, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense any such defense, contest or investigation of such claim, other protective action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees its own cost and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Partyexpense.
(e) If for any reason (other than Notwithstanding the gross negligence foregoing, the Partnership or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified PartyTrust, as the case may be, shall have the right to assume and control the defense and settlement of a P&T 44 Third Party Action if (a) such action includes claims for equitable relief which, if determined adversely to the Partnership or the Trust, as the case may be, could reasonably be expected to interfere with its intended business operations or damage its business reputation or (b) the P&T Indemnitor fails to do so in a timely manner. In any circumstances in which the Partnership or the Trust, as the case may be, undertakes to control the P&T Third Party Action as provided in this paragraph, it shall (i) not enter into any resolution or other compromise involving monetary damages without obtaining the prior written consent of the P&T Indemnitor provided that such written consent may not be withheld if it would materially interfere with the Partnership's or the Trust's, as the case may be, business operation and (ii) keep the P&T Indemnitor informed on an ongoing basis of the status of such P&T Third Party Action and shall deliver to the P&T Indemnitor copies of all documents related to the P&T Third Party Action reasonably requested by the P&T Indemnitor. The Partnership or the Trust, as the case may be, shall act to assure that all attorneys' fees and expenses incurred in connection therewith are reasonable.
(f) Promptly after receipt by a Contributor, ▇▇▇▇▇ or a Participant of written notice of the commencement of any suit, audit, demand, judgment, action, investigation or proceeding (a "C&P Third Party Action") or promptly after such Contributor, ▇▇▇▇▇ or a Participant incurs any Losses or has knowledge of the existence of any C&P Losses, such Contributor, ▇▇▇▇▇ or a Participant will, if a claim with respect thereto is to be made against the Trust or the Partnership (the "C&P Indemnitor") due to such C&P Indemnitor's obligation to provide indemnification hereunder, give such C&P Indemnitor written notice within forty-five (45) days of such C&P Losses or within forty-five (45) days of such C&P's receipt of notice of the commencement of any C&P Third Party Action. Promptly after receiving such notice, the C&P Indemnitor will, upon notice to the Contributor and the Participant have the right to assume and control the defense and settlement of any such C&P Third Party Action at its own cost and expense; provided, however, that it shall be a condition precedent to the exercise of such right by the C&P Indemnitor that the C&P Indemnitor shall agree in writing that the C&P Losses, or the C&P Third Party Action, as the case may be, is properly within the scope of the indemnification obligation and that as between the parties, the C&P Indemnitor shall be responsible to satisfy and discharge such C&P Third Party Action. No C&P Indemnitor shall enter into any resolution or other compromise of a C&P Third Party Action without obtaining the complete release of the Contributor, ▇▇▇▇▇ or the Participant, as appropriate, for any liability to all claimants under or pursuant to such C&P Third Party Action. The Contributor, ▇▇▇▇▇ and the Participant shall have the right to participate in any such defense, contest or other protective action at its own cost and expense.
(g) Notwithstanding the foregoing, the Contributor, ▇▇▇▇▇ and the Participant shall have the right to assume and control the defense and settlement of a C&P Third Party Action if (a) such action includes claims for equitable relief which, if determined adversely to the Contributor, ▇▇▇▇▇ and the Participant could reasonably be expected to interfere with its intended business operations or damage its business reputation or (b) the C&P Indemnitor fails to do so in a timely manner. In any circumstances in which the Contributor, ▇▇▇▇▇ and the Participant undertakes to control the C&P Third Party Action as provided in this paragraph, it shall (i) not enter into any resolution or other compromise involving monetary damages without obtaining the prior written consent of the C&P Indemnitor provided that such written consent may not be withheld if it would materially interfere with the Contributor's, ▇▇▇▇▇'▇ and the Participant's business operation and (ii) keep the C&P Indemnitor informed on an ongoing basis of the status of such C&P Third Party Action and shall deliver to the C&P Indemnitor copies of all documents related to the C&P Third Party Action reasonably requested by the C&P Indemnitor. The Contributor. ▇▇▇▇▇ and the Participant shall act to assure that all attorneys' fees and expenses incurred in connection therewith are reasonable.
(h) Except as specifically set forth in this subparagraph (h), from and after the Initial Closing Date, the Trust and the Partnership on the one hand and the Contributors and ▇▇▇▇▇ on the other handhand shall indemnify, defend, save and hold harmless the other group and their respective partners, trustees, officers and employees of, from and against one-half of any and all loss, cost, expense, damage and liability, including reasonable attorneys' fees, arising with respect to any state or county documentary or transfer taxes (including any interest and late charges with respect thereto) imposed subsequent to each Closing in connection with the New Jersey Property. Notwithstanding the foregoing, ▇▇▇▇▇ and the Contributor of the ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Property shall indemnify, jointly and severally, save and hold harmless the Trust and the Partnership and their respective partners, trustees, officers and employees of, from and against any and all loss, cost, expense, damage and liability, including reasonable attorneys' fees, arising with respect to any state or county documentary or transfer taxes (including any interest and late charges with respect thereto) imposed subsequent to the Initial Closing in connection with such Contributor's recordation of the 3 Paragon Correcting Deed and ▇▇▇▇▇ and the Contributor of the 25 ▇▇▇▇▇▇▇▇ Property shall indemnify, jointly and severally, save and hold harmless the Trust and the Partnership and their respective partners, trustees, officers and employees of, from and against any and all loss, cost, expense, damage and liability, including reasonable attorneys' fees, arising with respect to any state or county documentary or transfer taxes (including any interest and late charges with respect thereto) imposed subsequent to the Initial Closing in connection with such Contributor's recordation of the 25 ▇▇▇▇▇▇▇▇ Correcting Deed, in each case without regard to the limitations in Paragraph 11.
(i) The indemnifying party and the indemnified party under subparagraphs (d) through (h) above shall cooperate fully in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Paragraph 11, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as well as any witnesses) and other relevant equitable considerationsinformation.
(j) IN NO EVENT SHALL ANY PARTY HERETO, OR ANY DIRECT OR INDIRECT PARTNER, MEMBER, SHAREHOLDER, BENEFICIARY, OWNER OR AFFILIATE THEREOF, OR ANY OFFICER, DIRECTOR, EMPLOYEE, TRUSTEE, OR AGENT OF ANY OF THE FOREGOING OR ANY AFFILIATE
Appears in 1 contract
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained in this Agreement shall survive such Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party Party") asserts that any party hereto (the "Indemnifying Party Party") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefortherefore. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and and, in the event that a Majority of Purchasers (or their partners, Affiliates, officers, directors or employees) are a party to such claim, action, or proceeding, to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Survival Indemnification. (a) All representationsExcept as provided in Section 8.1(b), this Agreement and the covenants, representations and warranties, covenants indemnities, rights and agreements (except covenants obligations of the parties hereunder shall survive the Closing and agreements which are expressly required to be performed any investigation as Buyer may make and are performed remain in full on force and effect without time limit. The consummation or before Closing of this transaction in the face of any known breach of any obligation, warranty or representation contained herein shall be, or be deemed or construed to be, a waiver of such breach, departure, or variation.
(b) The representations and warranties contained in Article IV and V hereof shall expire eighteen (18) months after the Closing Date) contained in this Agreement shall survive such Closing for two years, except provided that (i) with respect to claims claims, if any, asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or writing prior to the expiration of the survival period provided aboverepresentation or warranty to which they are related shall survive until finally resolved and satisfied in full and (ii) claims, if any, (A) involving the representations set forth in Sections 4.12 (Taxes) and all other conditions hereunder are satisfied. A claim 4.14 (Environmental), (B) relating to title or any alleged ownership of or interest in the Purchased Assets, or (C) based on intentional misrepresentation, shall be made or commenced hereunder by survive until 30 days after the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature expiration of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claimapplicable statue of limitations with respect to such matter.
(ic) The Company agrees Seller covenant and agree to indemnify indemnify, defend and hold harmless each Purchaser and Buyer, its partners, Affiliates, officers, directors, employees employees, shareholders, successors and duly authorized agents assigns (each, a “Buyer Indemnified Party” and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within collectively, the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act “Buyer Indemnified Parties”), from and against any and all losses, claims, damages liabilities, proceedings, demands, actions, assessments, judgments, damages, costs or liabilities expenses including, but not limited to reasonable attorney’s fees, and other expenses (collectively, “Losses”), arising out of or resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (Bi) any breach ofby Seller or the Shareholders of its or their representations or warranties under this Agreement, (ii) the nonperformance or failure to perform breach of any of Seller’s or the representations, warrantiesShareholders’ agreements, covenants or agreements made in any of obligations under the Documents by Transaction Agreements, (iii) the Company Excluded Liabilities, or (Civ) any action or omission the imposition on Buyer of the Company or PRSI in connection with the transactions contemplated hereby or liability by the other Documents, and will reimburse each reason of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any Seller’s failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delaycomply with any applicable state bulk transfer law.
(d) In fulfilling Buyer agree to indemnify, defend and hold harmless Seller and Shareholders, and their respective its obligations under this Section 8.1officers, after providing each directors, employees, shareholders, successors and assigns (each, a “Seller Indemnified Party with a written acknowledgment Party” and collectively the “Seller Indemnified Parties”) from and against any and all Losses arising out of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action resulting from losses arising out of or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that resulting from (i) counsel retained any breach by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and Buyer of its representations or warranties hereunder, (ii) the Indemnifying Party will not consent nonperformance or breach of any of Buyer’s agreements, covenants or obligations under the Transaction Agreements, (iii) any and all Liabilities and obligations of, relating to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to or arising out of the contrary contained hereinownership or operation of, the Indemnifying Party may retain one firm Purchased Assets or the Assets which is based on or arises out of counsel to represent all Indemnified Parties in such claim, action any act or proceeding; provided, however, that in omission of Buyer occurring from and after the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified PartyClosing Date, and (iv) any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified PartyAssumed Liabilities.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Survival Indemnification. (a) All representations, warranties, covenants representations and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before warranties of the Closing Date) Company contained in this Agreement shall survive such the Closing for two yearsup to and including April 15, except 2016; provided, however, that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration representations and warranties of the applicable representation or warrantyCompany set forth in Section 3.01, such claims Section 3.02(a) and (b), Section 3.03, Section 3.14 and Section 3.26 shall survive until for a period of six (6) years after the date they are finally liquidated or otherwise resolvedClosing; provided, (ii) Sections 3.9further, the representations and warranties of the Company set forth in Section 3.12 and Section 3.13 shall survive for the full period of all applicable statutes of limitation. Neither Parent nor the Surviving Corporation shall, or shall permit any Subsidiary or Affiliate thereof to, extend or waive any statute of limitations that would have the effect of extending the survival of any indemnity obligations hereunder without the prior written consent of the Series A Holders. All representations and warranties of Parent, Merger Sub, Holdco and the Series A Holders contained in this Agreement or the Indemnification Agreement shall survive the Closing up to and including April 15, 2016; provided, that the Fundamental Representations (as defined in the Indemnification Agreement) of Parent, Merger Sub, Holdco and the Series A Holders shall survive for a period of six (6) years after the Closing.
(b) Unless otherwise expressly set forth in this Agreement, the covenants contained in this Agreement shall survive the Closing until the end expiration of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder From and after the date hereof until the Effective Time, the parties (an "Indemnified Party "including, without limitation, for purposes of this Section 8.01(c), the Series A Holders) asserts agree that the sole and exclusive remedy for any party hereto (the "Indemnifying Party ") has become obligated damages for any matter relating in any way to the Indemnified Party pursuant to Section 8.1(b), Merger or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations arising under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it Agreement or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason Ancillary Document (other than under the gross negligence Indemnification Agreement, except for a breach of the Indemnification Agreement that is also a breach of this Agreement) shall be the rights set forth in ARTICLE VII or willful misconduct referred to Section 8.06(d). From and after the Effective Time, the parties agree that the sole and exclusive remedy for monetary damages for any matter relating in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and way to the extent contemplated by subclauses Merger or arising under this Agreement or any Ancillary Document shall be the rights to indemnification set forth in the Indemnification Agreement, except for any claims relating to disputes under Section 2.02. Any claim relating to breach of any representation, warranty, covenant or other agreement made in the Indemnification Agreement (b), (cexcept for a breach of the Indemnification Agreement that is also a breach of this Agreement) and (d) above, then the Company shall contribute be made pursuant to the amount paid or payable by such Indemnified Party as a result provisions of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerationsIndemnification Agreement.
Appears in 1 contract
Survival Indemnification. (a) All representations, warranties, covenants representations and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) warranties contained in this Agreement or in any certificate delivered in connection with the Initial Closing shall survive such the Initial Closing for two years12 months (except representations contained in Sections 3.1 through 3.4, except that (i) 3.5(a), 3.12, and Section 3.13, which shall survive for the applicable statute of limitation, including extensions thereof, and in Section 3.5(b), which shall survive the Initial Closing for 24 months). Notwithstanding the foregoing, with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated adjudicated or otherwise resolved, (ii) Sections 3.9, 3.12 . The Covenants in Articles 5 and 3.13 6 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements terminated as to factual matters contained provided in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claimArticles.
(i) The Company and OpCo, jointly and severally, agree to indemnify and hold harmless Purchaser, each Purchaser Affiliate and each of their respective representatives, heirs, successors and assigns (each an “indemnified person”) on an after-tax basis, from and against (and to reimburse each indemnified person as the same are incurred) any and all losses, claims, damages, liabilities, costs and expenses (collectively, “Losses”) to which any indemnified person becomes subject or which any indemnified person incurs based upon, arising out of, or relating to (A) a breach of any representation or warranty of this Agreement by the Company or OpCo; (B) any breach of any covenant or agreement contained herein or in the Financing Documents by the Company or OpCo; or (C) any claim, litigation, investigation or proceeding brought by or on behalf of any Person other than the Company or OpCo relating to the Transactions (including without limitation as a result of the use of proceeds from the Transactions), and to reimburse each indemnified person upon demand for any reasonable legal or other reasonable out of pocket expenses incurred in connection with investigating or defending or otherwise as a result of any of the foregoing, provided that the maximum amount indemnifiable to indemnified persons under Section 8.1(b)(i) (A) and (B) of this Agreement shall not exceed the sum of (x) the aggregate principal amount of all Debentures issued hereunder, (y) all accrued and unpaid interest on any outstanding Debentures, as determined on the date of the final resolution of the Losses and (z) fees and expenses with respect to the Debentures through the date of the final resolution of the Losses.
(ii) Each Purchaser severally, and not jointly, agrees to indemnify and hold harmless the Company, each Purchaser and its partnersCompany Affiliate, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates respective representatives, heirs, successors and assigns (each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act an “indemnified person”) on an after-tax basis, from and against all losses, claims, damages or liabilities resulting from (and to reimburse each indemnified person as the same are incurred) any claim, lawsuit or other proceeding by any person Losses to which any party indemnified under this clause person may become subject or which is related to or arises any indemnified person may incur based upon, arising out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure relating to perform a breach of any representation or warranty of this Agreement by such Purchaser and to reimburse each indemnified person upon demand for any reasonable legal or other reasonable out of pocket expenses incurred in connection with investigating or defending or otherwise as a result of any of the representationsforegoing, warranties, covenants or agreements made in any provided that the maximum amount indemnifiable to indemnified persons under this Agreement shall not exceed the aggregate principal amount of the Documents all Debentures issued by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by to such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayedhereunder.
(c) If a person Person entitled to indemnity hereunder (an "“Indemnified Party "Party”) asserts that any another party hereto (the "“Indemnifying Party "Party”) has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to shall notify the Indemnifying Party promptly and to shall cooperate with the Indemnifying Party, at the Indemnifying Party's ’s expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceedingproceedings, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary thereforParty. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion reasonably deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement or entry of judgment imposing any obligations on any other party heretohereto other than financial obligations for which such party will be indemnified hereunder, unless such party has consented in writing to such settlement. Notwithstanding anything settlement or judgment (which consent may be given or withheld in its sole discretion) and (iii) the Indemnifying Party will not consent to the contrary contained hereinany settlement or entry of judgment unless, in connection therewith, the Indemnifying Party may retain one firm obtains a full and unconditional release of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder from all liability with respect to any such claimsuit, action action, investigation claim or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counselproceeding. Notwithstanding the Indemnifying Party's ’s election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct participate in the defense or investigation of such claim, action or proceeding at their expense, which participation shall be at the expense of the Indemnifying Party, if (Ai) in on the written opinion advice of counsel to the Indemnified Party, Party use of counsel of the Indemnifying Party's ’s choice could reasonably be expected to will give rise to a material conflict of interest, or (Bii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding (iii) if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party’s expense.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Securities Purchase Agreement (Superior Consultant Holdings Corp)
Survival Indemnification. (a) All The covenants, agreements, representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before warranties of the Closing Date) parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive such Closing for two yearsuntil the third (3rd) anniversary of the Contribution Date, except that (i) with respect any covenants, agreements, representations, or warranties relating to claims asserted pursuant to this Section 8.1 before Tax matters shall extend until the ninety-first (91st) day following the expiration of the applicable representation statutory period of limitations (giving effect to any waiver or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolvedextension thereof), (ii) Sections 3.9, 3.12 any liabilities arising out of litigation or brokers’ and 3.13 finders’ fees shall survive extend until the end ninety-first (91st) day following the expiration of the applicable statute statutory period of limitationslimitations (giving effect to any waiver or extension thereof) beginning upon the expiration of the agreement(s) referenced in Northstar’s disclosure in response to Section 4.24 and Section 4.28, and (iii) Section 3.2 4.1 of this Agreement and the indemnity provisions set forth in Sections 6.1(b)(ii) and 6.1(b)(iii) of this Section 8.1 Agreement shall extend without limit as to time. Notwithstanding the preceding sentence, any covenant, agreement, representation, or warranty in respect of which indemnity may be sought under this Article VI shall survive indefinitely. All statements the time at which it would otherwise terminate pursuant to such sentence, if notice of the inaccuracy or breach thereof giving rise to such indemnity shall have been given to the party against whom such indemnity may be sought prior to such time.
(b) Northstar and its successors and assigns (each an “Indemnitor”), jointly and severally, hereby agree to indemnify each Indemnitee and Indemnitee Affiliate (as each is defined in Section 6.4 of this Agreement) against, and agree to factual matters contained hold it harmless from, any and all damage, loss, liability, and expense (including, without limitation, reasonable expenses of investigation and attorney’s fees and expenses in connection with any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representationsaction, warranties and covenants suit, proceeding, claim, investigation, or other loss) (a “Loss”) incurred or suffered by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.Indemnitee arising out of
(i) Any breach of any covenant or agreement or of any inaccuracy or omission in any representation or warranty made by Northstar pursuant to this Agreement;
(ii) The Company agrees failure of Northstar to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser perform any obligation or any of their Affiliates within the meaning of either Section 15 liability of the Securities Act Business not assumed by the Company pursuant to this Agreement or relating to the Excluded Assets, other than relating to Taxes of any Northstar Subsidiary, for which indemnification provisions are set forth in Section 20 6.3 of this Agreement;
(iii) Or relating to claims by third parties in connection with the contribution by Northstar of the Exchange Act from Business to the Company, including without limitation, claims made by the parties subject to the agreement(s) referenced in Northstar’s disclosure in response to Section 4.24 and against Section 4.28;
(iv) Any and all losses, claims, damages or liabilities resulting from any claimdemands, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documentspenalties, whether or not consummatedfines, (B) any breach ofsettlements, or failure damages arising under U.S. or any state or local Environmental Laws and relating to perform conditions, events, actions, violations, obligations, or circumstances that exist in whole or part prior to the Contribution Date; and
(v) Any violations of the Toxic Substances Control Act and its implementing regulations present at any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense Business facilities prior to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayedContribution Date.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Survival Indemnification. (a) All representationsSection 9.1(a) of the SPMA is hereby amended in its entirety to read as follows:
(a) The representations and warranties of the Sellers, warranties, covenants the Company and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) Buyer contained in this Agreement shall will survive such the Closing for two years, except that (i) with respect to claims asserted pursuant the Fundamental Representations and Warranties (except with respect to this the representations and warranties contained in Sections 3.8(a)-(g) and Section 8.1 before 4.11(f) (but only with respect to clause (v) and the expiration of the applicable representation or warrantylast sentence thereof), such claims which shall survive until sixty (60) days following the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end expiration of the applicable statute of limitations) and the representations and warranties contained in Sections 5.1 and 5.3, in each case which shall survive until thirty six (36) months from the Closing Date; and (iiiii) until twelve (12) months from the Closing Date in the case of all other representations and warranties (other than the representations and warranties contained in Sections 3.8(h)-(i) and Section 3.2 and this Section 8.1 4.14, which shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 until sixty (or otherwise60) days following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature applicable statute of the claim, the amount claimed (if known or reasonably estimablelimitations), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that any representation, warranty that would otherwise terminate in accordance with clause (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and or (ii) the Indemnifying Party will not consent continue to any settlement imposing any obligations survive if a notice of a claim shall have been given under this Article 9 on any other party hereto, unless such party has consented in writing or prior to such settlementthe date on which it otherwise would terminate, until the related claim for indemnification has been satisfied or otherwise resolved as provided in this Article 9. Notwithstanding anything Except as otherwise expressly provided in this Agreement, for purposes of claims for indemnification under this Article 9, each covenant hereunder to be performed on or prior to the contrary contained hereinClosing Date shall survive until twelve (12) months from the Closing Date, and each covenant hereunder to be performed following the Closing shall survive in accordance with its terms until fully performed.
(b) Section 9.4(a) of the SPMA is hereby amended by replacing the penultimate sentence thereof in its entirety to read as follows: Other than in respect of a breach of the Fundamental Representations and Warranties, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that Escrow Amount remaining at any given time in the event that Escrow Account shall be the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion sole source of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder recovery with respect to any such claim, action claims for indemnification by or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense on behalf of the Indemnifying Party and Buyer Indemnified Parties pursuant to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Partythis Article 9.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Securities Purchase and Merger Agreement (American Tower Corp /Ma/)
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained in this Agreement shall be deemed made at the Closing as if made at such time (except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such specified date) and shall survive such the Closing for two yearsnine (9) months, except that (i) with respect to claims asserted pursuant to this Section 8.1 9.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.93.12, 3.12 3.17, 3.18, 4.12, 4.17 and 3.13 4.18 shall survive until thirty (30) days after the end of the applicable statute of limitationslimitations (as waived, and tolled or amended), (iii) Section 3.2 Sections 3.6 and 4.6 and this Section 8.1 9.1 shall survive indefinitelyindefinitely and (iv) Section 8.2 shall survive in accordance with its terms. All statements as to factual matters contained in any certificate certificate, document or other instrument executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 9.1 (or otherwise) following expiration of the survival periodapplicable period of survival, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees after the Closing Date to indemnify and hold harmless each Purchaser and Proha, its partners, Affiliates, and their respective officers, directors, employees and duly authorized agents and each of their affiliates and each other person Person controlling such Purchaser Proha or any of their Affiliates within the meaning of either Section section 15 of the Securities Act or Section section 20 of the Exchange Act and any partner of any of them from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person Person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform perform, any of the representations, warranties, covenants (other than the covenant of the Company contained in 5.1(a)(vi) hereof) or agreements made in this Agreement by the Company, (B) any breach or failure of the Documents any representation or warranty made by the Company in this Agreement to be true and correct as of the applicable time; provided, however, that, for purposes of this clause (B), the determination of any such breach or failure, or the existence of any facts resulting in any breach or failure of, any such representation or warranty, shall be determined without regard to any "material," "materially," "Material Adverse Effect" or similar exception or qualification contained herein or therein; or (C) any action or omission of the Company or PRSI any of its Subsidiaries in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers Proha and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including including, without limitation, reasonable counsel fees and disbursements) incurred by such Purchaser Proha or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser Proha or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover cover, without limitation, reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability delayed or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.conditioned
Appears in 1 contract
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained in this Agreement shall be deemed made at the Closing as if made at such time and shall survive such the Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 3.15 and 3.13 3.16 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival periodapplicable period of survival, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the applicable period of survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser of the Purchasers and its respective partners, Affiliatesaffiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates affiliates within the meaning of either Section section 15 of the Securities Act or Section section 20 of the Exchange Act and any partner of any of them from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform of any of the representations, warranties, covenants or agreements made in any of the Acquisition Documents by the Company or (CB) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Acquisition Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser the Purchasers or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser the Purchasers or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. .
(ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted primarily from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayedwithheld.
(ci) The Purchasers agree to indemnify and hold harmless each of the Company and its partners, affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling the Company or any of their affiliates within the meaning of either section 15 of the Securities Act or section 20 of the Exchange Act and any partner of any of them from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) any breach or failure of any of the representations, warranties, covenants or agreements made in any of the Acquisition Documents by such Purchaser, or (B) any action or omission of such Purchaser in connection with the transactions contemplated hereby or by the other Acquisition Documents, and will reimburse the Company and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by the Company or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not the Company or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding.
(ii) Notwithstanding the foregoing clause (i), the Purchasers shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, liability, cost, expense or damage to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted primarily from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Purchasers, which consent shall not be unreasonably withheld.
(d) If a person entitled to indemnity hereunder (an "Indemnified Party Party") asserts that any party hereto (the "Indemnifying Party Party") has become obligated to the Indemnified Party pursuant to Section 8.1(b) or (c), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(de) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, -------- however, that (i) counsel retained by the Indemnifying Party is reasonably ------- satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any material obligations on any other party heretohereto other than financial obligations for which such party will be indemnified hereunder, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the -------- ------- defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct participate in the defense or investigation of such claim, action or proceeding at the expense of the Indemnifying Party, if (Ai) in the written opinion of counsel to the Indemnified Party, Party use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (Bii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense proceeding or investigation of such claim, action or proceeding (iii) if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Partyexpense.
(ef) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (cd) and (de) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliatesaffiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Stock Purchase Agreement (Apollo Investment Fund Iv Lp)
Survival Indemnification. (a) All The representations, warranties, covenants and agreements (except covenants and agreements which are expressly required made by each Party to be performed and are performed the other Party in full on or before the Closing Date) contained in pursuant to this Agreement shall survive such the occurrence of the Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) periods specified in Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable8.3(b), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriatebelow; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party heretorepresentation, unless such party has consented warranty, covenant or agreement that would otherwise terminate in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict accordance with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses Sections 8.3 (b), (c) and (d) abovebelow will continue to survive if a notice of a Buyer Claim, then Seller Claim or Third Party Claim is timely delivered under this Section 8.3 on or prior to such termination date thereof, until the related claim for indemnification has been satisfied or otherwise resolved as provided in this Section 8.3.
(b) Subject to the terms and conditions set forth in this Section 8.3, the representations and warranties made by Seller and contained in Article II of this Agreement shall survive the Closing (i) with respect to the representations and warranties contained in Sections 2.1, 2.2, 2.3, 2.4 and 2.13, indefinitely, (ii) with respect to the representations and warranties contained in Sections 2.15, 2.16, 2.17 and 2.19, until sixty (60) days following the expiration of the applicable statute of limitations (including all periods of extension, whether automatic or permissive) and (iii) with respect to all other representations and warranties contained in this Agreement, until the second year anniversary of the Closing, but shall not survive, and shall cease to be of any further force or effect, thereafter.
(c) Subject to the terms and conditions of this Section 8.3, the representations and warranties made by Buyer and contained in Article III of this Agreement shall survive the Closing with respect to the representations and warranties contained in Sections 3.1 and 3.2, indefinitely, and with respect to all other representations and warranties contained in this Agreement, until the second year anniversary of the Closing, but shall not survive, and shall cease to be of any further force or effect, thereafter.
(d) Notwithstanding anything to the contrary set forth herein, the covenants and agreements shall survive the Closing (i) with respect to covenants or agreements contained in this Agreement to be performed on or prior to the Closing, until the second year anniversary of the Closing , (ii) with respect to each other covenant or agreement contained in this Agreement, until sixty (60) days following the last date on which such covenant or agreement is to be performed or, if no such date is specified, indefinitely.
(e) After the Closing, Seller agrees to indemnify and hold harmless Buyer and the Company, to the extent permitted by applicable law, from and against all demands, claims, actions or causes of action, assessments, losses, damages and liabilities (collectively “Damages”), asserted against or actually incurred by Buyer or the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of any (x) inaccuracy as of the Closing Date of any representation or warranty of Seller contained in or made pursuant to Article II of this Agreement (determined in all cases as if the terms “material”, “materially”, “Material Adverse Effect” or other similar qualifiers were not included therein) or any Damages directly arising from the business of the Company occurring prior to the Closing or (y) nonfulfillment of or failure to perform any covenant or agreement on the part of Seller contained herein, but shall expressly exclude consequential damages, damages based upon a theory of lost profits, damages based upon a theory of a multiple of earnings or any similar indirect damages (“Buyer Claims”); provided, however, that Seller’s obligation to indemnify Buyer for any Damages pursuant to this Section 8.3(e) shall be effective and Seller shall be liable only to the extent that (i) such loss, claim, damage or liability Damages are in such proportion as is appropriate to reflect the relative benefits received excess of any net amounts recoverable by the Company or the Subsidiaries using their commercially reasonable efforts pursuant to any contract, including, but not limited to Government Contracts, to which the Company or Subsidiary is a party, (ii) such Damages exceed the amount reserved against for such category of Damages in the Financial Statements or Interim Financial Statements and its Affiliates(iii) written notice of a Buyer Claim in respect of such Damages, specifying in detail the basis therefor and referring to this Section 8.3(e), has been received by Seller on or prior to the date specified by Section 8.3(b), and provided, further, however, that the provisions for indemnity contained in clause (x) of this Section 8.3(e) shall be effective only to the extent the aggregate amount of all such Damages for which Seller is liable under clause (x) of this Section 8.3(e) exceeds $2,000,000 (the “Threshold Amount”), in which event, Seller shall be liable under clause (x) of this Section 8.3(e) only for the amount of Damages that is in excess of the Threshold Amount. Notwithstanding anything to the contrary contained herein, in no event shall the aggregate indemnity obligation of Seller pursuant to clause (x) of this Section 8.3(e) be in excess of the amount of $30,000,000 (the “Cap”). Notwithstanding the foregoing, (A) the Cap shall be increased on a dollar-for-dollar basis, not to exceed $10,000,000, for every dollar of Damages arising out of or relating to any inaccuracy of the representations and warranties contained in Sections 2.16, 2.17 and 2.19, and (B) neither the Threshold Amount nor the Cap shall apply to any fraud or willful misconduct on the one hand, part of Seller. Buyer and Seller agree that Buyer’s and the Purchasers Company’s sole remedy for claims for any breach by Seller of this Agreement, other than equitable remedies for the nonfulfillment of or failure to perform the obligations in Section 8.6, shall be limited to Seller’s indemnity obligations pursuant to this Section 8.3(e).
(f) Notwithstanding any provision of the Agreement to the contrary, Seller agrees to indemnify and hold harmless Buyer from and against all Damages, including without limitation, any other applicable Indemnified PartyTax, employee benefits and environmental liabilities) arising from or related to JCBAS and JCSS (or their business or operations or as a result of their transfer to Seller, as the case may be, on the other hand, as well as any other relevant equitable considerationsapplicable).
Appears in 1 contract
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained in this Agreement shall be deemed made at the Closing as if made at such time and shall survive such the Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival periodapplicable period of survival, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the applicable period of survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each the Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such the Purchaser or any of their Affiliates within the meaning of either Section section 15 of the Securities Act or Section section 20 of the Exchange Act and any partner of any of them from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI its Subsidiary in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such the Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such the Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party Party") asserts that any party hereto (the "Indemnifying Party Party") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 twenty (20) Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Preferred Stock Exchange and Purchase Agreement (Us Search Corp Com)
Survival Indemnification. (a) All representations, warranties, covenants 10.1 Survival 10.1.1. The representations and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before warranties of the Closing Date) Parties contained in this Agreement or in any of the Ancillary Agreements shall survive not survive, and shall terminate effective immediately as of, the Closing, such that no claim for breach of any such representation or warranty, claim for detrimental reliance, or other right or remedy (whether in contract, in tort, or at law or equity) may be brought after the Closing for two yearsbased on an inaccuracy in or breach of any such representations and warranties, except that (i) with respect to claims asserted pursuant for fraud. Except in the cause of fraud or Willful Breach, each and every covenant, undertaking or agreement contained in this Agreement (other than the covenants and agreements contained in this Agreement which by their terms are to be performed (in whole or in part) by the Parties following the Closing) shall survive the Closing for a period ending on the date that is nine (9) months following the Closing Date, at which time such covenants, undertakings and agreements shall terminate and thereafter be of no force and effect and none of the Parties to this Section 8.1 before the expiration Agreement, nor any of the applicable representation or warrantytheir respective Affiliates, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end nor any of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 their respective directors (or otherwise) following expiration of the survival periodequivalent), and upon such expiration the Indemnifying Party officers, employees, or representatives shall be released from all have any liability whatsoever with respect to claims under each any such section not theretofore made covenant, undertaking or agreement thereafter. The covenants and agreements of the Parties contained herein which by their terms are to be performed (in whole or in part) after the Indemnified PartyClosing will survive the Closing in accordance with their terms and will terminate in all respects once fully performed. No right of indemnity against any claim of a third party shall arise from Notwithstanding the foregoing, any representation, warranty warranty, agreement or covenant (and the indemnification obligations of an Indemnifying Party the Parties hereto with respect thereto) that would otherwise terminate in accordance with this Section 10.1 will continue to survive until such claim for indemnification has been satisfied or otherwise resolved as provided herein containedif notice for indemnification shall have been given in good faith and in accordance with this Article 10, unless such third-party claim is filed or lodged against including the Indemnified Party on or requirements set forth in Section 10.5.1, prior to the expiration of the applicable survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claimperiod.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tabula Rasa HealthCare, Inc.)
Survival Indemnification. (a) All representationsUpon a valid termination of this Agreement, warrantiesthe parties shall have no further obligations hereunder, covenants except that the obligations of the parties set forth in Section 4.2, Section 7.2, Section 8.1, Section 8.2, Section 9.1, Section 9.3, Section 9.4 and agreements (except covenants this Section 9.12 shall survive any such termination and agreements which are expressly required to shall be performed enforceable hereunder. Except for the representations and are performed in full on or before the Closing Date) warranties contained in Section 2.3 which shall survive the Closing, none of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive such Closing for two years, except that (ithe Closing. This Section 9.12(a) with respect to claims asserted pursuant to this Section 8.1 before the expiration shall not limit any covenant or agreement of the applicable representation or warranty, such claims shall survive until parties which by its terms contemplates performance after the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claimClosing.
(ib) The Company agrees to From and after the Closing, Buyer shall defend, indemnify and hold harmless each Purchaser and its partnersthe Sellers, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within and their Representatives (collectively, the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act “Seller Indemnitees”) from and against against, and pay or reimburse the Seller Indemnitees for, any and all lossesdamage, claimsloss, damages or liabilities resulting from liability, and expense (including reasonable expenses of investigation, enforcement and collection and reasonable attorneys’ and accountants’ fees and expenses in connection with any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other DocumentsLitigation), whether or not consummatedinvolving a third party claim (collectively, (B) “Losses”), resulting from or arising out of any breach ofAssumed Liabilities, or failure to perform any the conduct of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense Business prior to the extent Closing or the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence ownership or willful misconduct of such party or (B) for any settlement effected by such party without the written consent operation of the Company, which consent shall not be unreasonably withheld the Assigned Contracts, the Assigned Trademarks and Domain Names or delayedthe Business from and after the Closing.
(c) If In the case of any Litigation asserted by a person third party (a “Third Party Claim”) against a party entitled to indemnity hereunder indemnification under this Section 9.12 (an "“Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to Party”), notice shall be given by the Indemnified Party pursuant to Section 8.1(b)the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of such Third Party Claim, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which and the Indemnified Party shall permit the Indemnifying Party may become obligated (at the expense of such Indemnifying Party and so long as the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder, the Indemnified for Losses related to such Third Party agrees Claim) to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in assume the defense of such suitThird Party Claim, action or proceedingprovided that (a) counsel for the Indemnifying Party who shall conduct the defense of such Third Party Claim shall be reasonably satisfactory to the Indemnified Party, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding may participate in such defense at such Indemnified Party’s expense, and (b) the foregoing failure of any Indemnified Party to give notice requirement, the right to indemnification hereunder as provided herein shall not be affected by any failure to give, or delay in giving, notice unless, and only relieve the Indemnifying Party of its indemnification obligation under this Agreement except to the extent that, the rights and remedies that such failure results in a lack of actual notice to the Indemnifying Party shall have been and such Indemnifying Party is materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, to give notice. If the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will does not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to promptly assume the defense or investigation of such claim, action or proceedingThird Party Claim following notice thereof, the Indemnified Party shall have be entitled to assume and control such defense and to settle or agree to pay in full such Third Party Claim without the right to employ separate counsel at the expense consent of the Indemnifying Party and without prejudice to direct the defense or investigation ability of such claim, action or proceeding if (A) in the Indemnified Party to enforce its claim for indemnification against the Indemnifying Party hereunder. Except with the prior written opinion consent of counsel to the Indemnified Party, use of counsel of the no Indemnifying Party's choice could reasonably be expected , in the defense of any such Third Party Claim, shall consent to give rise to a conflict entry of interest, any judgment or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to represent the such Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding an irrevocable release from all liability with respect to such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceedingThird Party Claim. In all other situationsany event, the Indemnified Party Sellers and Buyer shall have the right to participate cooperate in the defense or investigation of such claim, action or proceeding if any Third Party Claim subject to this Section 9.12(c) and the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses records of counsel for the Indemnified Party each shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and reasonably available to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute other with respect to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerationsdefense.
Appears in 1 contract
Survival Indemnification. (a) All No representations, warranties, covenants and warranties or agreements (except covenants and agreements which are expressly required to be made or performed and are performed in full on or before prior to the Closing Date) Date and contained in this Agreement herein shall survive such Closing for two years, beyond the Effective Time except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warrantyagreements contained in Sections 3.1, such claims 3.2, 3.3, 3.4, 3.5, 3.7, 7.3, 7.4, 7.5, 7.6, 7.7, and 9.2 and Articles X and XI hereof shall survive until beyond the date they are finally liquidated or otherwise resolved, Effective Time and (ii) Sections 3.9, 3.12 the representations and 3.13 shall survive until the end warranties and other agreements of the applicable statute of limitations, Buyer and (iii) Section 3.2 and Beech in this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed Agreement to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (made or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party performed on or prior to the expiration of Closing Date shall survive beyond the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by Effective Time for one year following the Indemnified Party delivering to Effective Time (the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable“Termination Date”), and the factual basis for the claim.
(ib) The Company agrees to indemnify Surviving Corporation, Buyer, Buyer Sub and hold harmless each Purchaser and its partners, Affiliates, of their officers, directors, employees employees, agents, representatives and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i)collectively, the Company shall not “Indemnitees,” and individually each an “Indemnitee”) (subject to the terms and conditions of subparagraph (c) below) will be liable to any party otherwise entitled to indemnification pursuant thereto: (A) be indemnified and held harmless against and in respect of any lossclaims, claimdamages, damagelosses, liability costs, expenses, liabilities (absolute, accrued, contingent or expense otherwise), and reasonable legal fees and expenses (collectively, “Losses”) incurred or suffered by any Indemnitee, directly or indirectly caused by or arising out of or related to (i) any untruth, inaccuracy, error in, or breach of, any representation or warranty of Beech contained in this Agreement, when made or deemed to be made, (ii) any breach or nonfulfillment by Beech of any of its covenants, agreements or other obligations hereunder, (iii) any amounts becoming due and payable prior to the extent Termination Date for contingent payment obligations arising under the same is determinedShare Purchase Agreement (“BestCare Agreement”) among Beech Street Corporation, in final judgment by a court having jurisdictionBestCare Incorporated and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, to have resulted from the gross negligence or willful misconduct ▇▇., dated as of such party September 10, 2004, or (Biv) for any settlement effected amounts paid by such party without the written consent Surviving Corporation on or prior to the Termination Date to former Beech employees upon termination of employment with the Surviving Corporation related to paid time off accrued as of the CompanyClosing and not utilized prior to such termination, which consent determined on a first-in, first-out basis (i.e., oldest accrued time would be deemed to be used up first as time off is taken subsequent to Closing). The rights of the Indemnitees to indemnification under Section 10.1(b) shall not be unreasonably withheld or delayed.
satisfied first out of the Indemnification Escrow pursuant to the terms of the Escrow Agreement described in subparagraph (c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession below. All indemnification requests of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification Indemnitees hereunder shall not be affected made by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlementthrough Buyer. Notwithstanding anything to the contrary contained hereinin this Article X, the Indemnifying Party reasonable legal fees and expenses of the Indemnitor shall be payable by the Indemnitor separate and apart from the Indemnification Escrow, and the reasonable legal fees and expenses of the Indemnitee with respect to a claim of indemnification or a demand for the creation of a reserve for any unliquidated claim shall be payable by the Indemnitor from the Indemnification Escrow, unless (x) the Representative objects to the claim or the demand, (y) an agreement between the Representative and the claiming Indemnitee is not reached, and (z) at arbitration, the arbitrators determine that no part of the Indemnification Escrow is to be delivered to the Indemnitee or is to be set aside in a reserve for any unliquidated claim.
(c) By voting to approve this Agreement or by surrendering his or her Certificate(s) evidencing Beech shares at Closing, each Stockholder (other than Stockholders who have perfected dissenter rights under the GCL) agrees that an amount equal to seven and one-half percent (7.5%) of the Purchase Price shall be placed in the Indemnification Escrow provided for in an Escrow Agreement to be entered into, as of the Effective Time, between Buyer, Beech and the Escrow Agent, in the form of Exhibit “A” attached hereto. The Escrow Agent is hereby authorized from time to time to transfer all or any portion of the amounts so deposited in satisfaction of the indemnity obligation as contemplated in the Escrow Agreement.
(d) If any Indemnitee shall have any liquidated claim of indemnification pursuant to subparagraph (b) above, it shall promptly request that Buyer give written notice thereof to the Representative (as defined in subparagraph (h) below) and the Escrow Agent, including a brief description of the facts upon which such claim is based and the amount thereof. Any Indemnitee may retain one firm also request that Buyer provide written notice to the Representative and the Escrow Agent of counsel any unliquidated claim of indemnification pursuant to represent all Indemnified Parties subparagraph (b) above, including a brief description of the facts upon which such claim is based and a demand for a reserve amount to be created in respect of such claim, action or proceeding; provided, however, . Any claim made by any Indemnitee for Losses that are unliquidated shall not be paid but funds equal to such claim shall be held in the event Indemnification Escrow until such Losses are fully liquidated. Notwithstanding the foregoing, no amount will be delivered to an Indemnitee pursuant to a written claim notice (with respect to either a liquidated or unliquidated claim) pursuant to subparagraph (b) above unless and only to the extent that the defendants in, or targets of, any such claim, action or proceeding include more aggregate amount of Losses sustained by the Indemnitees as a group and as to which written claim notices have been given (other than one Indemnified Party, Indemnitee’s reasonable legal fees and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder expenses with respect to any such claimclaim and Losses caused by a breach or nonfulfillment by Beech of any of its covenants, action agreements, obligations, representations or proceeding warranties set forth in Sections 3.2, 5.2, 6.1(b), 6.1(c)(i)-(vii), 6.1(c)(ix), 6.3 or 6.9) exceeds One Million Dollars ($1,000,000) (taking into account any reduction of prior noticed claims resulting from the dispute resolution procedures of subparagraph (e) below) at which it or such other person may become involved or is named as defendant point the Indemnitees shall be entitled to receive the aggregate Losses in excess of One Million Dollars ($1,000,000). Notwithstanding anything to the contrary in this Agreement, the aggregate liability of the Stockholders for Losses under the Agreement shall not exceed an amount equal to (i) seven and one-half percent (7.5%) of the Indemnifying Party shall pay Purchase Price plus (ii), if the aggregate amount of all Losses indemnifiable by Stockholders (including, without limitation, the aggregate amount of Indemnitee’s total reasonable legal fees and disbursement expenses related thereto) exceeds seven and one-half percent (7.5%) of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceedingPurchase Price, the Indemnified Party shall have the right to employ separate counsel at the expense lesser of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion total amount of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interestsuch excess, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to sum of (1) the Indemnified Party to represent the Indemnified Party within a aggregate amount of Indemnitee’s reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the legal fees and expenses and (2) all Losses caused by a breach or nonfulfillment by Beech of counsel for the Indemnified Party shall be borne by the Indemnified Partyany of its covenants, agreements, obligations, representations or warranties set forth in Sections 3.2, 5.2, 6.1(b), 6.1(c)(i)-(vii), 6.1(c)(ix), 6.3 or 6.9.
(e) If the Representative shall notify the Escrow Agent in writing (within fifteen (15) days of delivery to the Escrow Agent by Buyer of a written notice of claim for indemnification) of his objection to a claim of indemnification or a demand for the creation of a reserve for any reason unliquidated claim (or the amount thereof), the Escrow Agent shall hold the disputed amount of funds in the Indemnification Escrow until the rights of the Beech Stockholders and the Indemnitees with respect thereto have been agreed upon between the Representative and the claiming Indemnitee. In the event such an agreement is reached, the claiming Indemnitee shall request Buyer to provide to the Escrow Agent a written notice signed by the Representative and the claiming Indemnitee in the form specified in the Escrow Agreement. If no such agreement has been reached, either the Indemnitee or the Representative may, not earlier than thirty (30) days after the date of the initial claim notice, submit the dispute to confidential, binding arbitration in Orange County, California before a panel of three arbitrators, one each to be selected by the Buyer and the Representative, and the third to be selected by the other than two arbitrators, pursuant to the gross negligence procedures and rules for commercial arbitration of the American Health Lawyers Association Alternative Dispute Resolution Service. The Escrow Agent may rely on the order or willful misconduct referred other determination of such arbitrators. If such arbitrators shall determine that any part of the Indemnification Escrow is to be delivered to an Indemnitee or is to be set aside in subclause a reserve for any unliquidated claim, the Escrow Agent shall promptly following receipt of a copy of such determination establish such reserve or deliver to such Indemnitee the lesser of (b)(ii) abovei) the foregoing indemnification by amount of the Company is unavailable to any Indemnified Party claim or is insufficient to hold it harmless claims as and awarded to the extent contemplated by subclauses (b)Indemnitee to be satisfied, (c) and subject to the limitation set forth in subparagraph (d) above, then or (ii) the Company shall contribute to excess of seven and one-half percent (7.5%) of the amount paid Purchase Price over all amounts previously disbursed (or payable currently reserved) in respect of Losses (other than (x) Indemnitee’s reasonable legal fees and expenses and (y) Losses caused by such Indemnified Party as a result breach or nonfulfillment by Beech of such lossany of its covenants, claimagreements, damage obligations, representations or liability warranties set forth in such proportion as is appropriate to reflect the relative benefits received by the Company and its AffiliatesSections 3.2, on the one hand5.2, and the Purchasers and any other applicable Indemnified Party6.1(b), as the case may be6.1(c)(i)-(vii), on the other hand6.1(c)(ix), as well as any other relevant equitable considerations6.3 or 6.
Appears in 1 contract
Survival Indemnification. Section 9.1 Survival of Representations, Warranties, Covenants and Agreements.
(a) All Except as set forth in Section 9.1(b) and Article VIII of this Agreement, the representations, warranties, covenants and agreements (except covenants of each party hereto shall remain operative and agreements which are expressly required to be performed and are performed in full force and effect regardless of any investigation made by or on behalf of any other party hereto, any Person controlling any such party or before any of their Representatives whether prior to or after the execution of this Agreement.
(b) The representations and warranties made by the Company and any Seller in this Agreement, the Ancillary Agreement or in any exhibit, schedule, the Company Disclosure Letter or certificate delivered by the Company or any Seller pursuant hereto shall survive the Closing until (and claims based upon or arising out of such representations and warranties may be asserted at any time before) the second anniversary of the Closing Date) ; provided, however, that the representations and warranties contained in this Agreement Sections 3.2, 3.3(a), 3.7, 3.14, 3.16, 4.2 and 4.5 (or in any related exhibit, schedule (including the Company Disclosure Letter) or certificate) shall survive such Closing for two years, except that until sixty (i60) with respect to claims asserted pursuant to this Section 8.1 before calendar days after the expiration of the applicable representation period of limitations (giving effect to any waivers or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end extensions thereof). The termination of the applicable statute representations and warranties provided herein shall not affect Parent in respect of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained any claim made by Parent in any certificate executed and delivered reasonable detail in a writing received by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or Sellers’ Representative prior to the expiration of the applicable survival period provided above, and all other conditions hereunder are satisfiedherein. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature All of the claimrepresentations and warranties made by Parent in this Agreement, the amount claimed (if known Ancillary Agreement or reasonably estimable), in any exhibit or certificate delivered by Parent pursuant hereto shall not survive the Closing. The covenants and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 agreements of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by parties hereto in this Agreement and shall survive the other Documents, whether or not consummated, (B) Closing without any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based contractual limitation on the opinion period of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason survival (other than the gross negligence or willful misconduct referred those covenants and agreements that are expressly required to remain in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as full force and to the extent contemplated by subclauses (beffect for a specified period time), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Stock Purchase Agreement (Harrahs Entertainment Inc)
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained in this Agreement shall survive such Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI Screening Services in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party Party") asserts that any party hereto (the "Indemnifying Party Party") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Survival Indemnification. (a) All representationsThe respective representations and warranties of the Company and Purchaser contained in Section 2.1 and Section 2.2 shall survive for a period of twelve (12) months from the Closing; provided, warrantieshowever, covenants that the representations and agreements warranties contained in Section 2.1(o) shall survive for a period of twenty-four (except covenants and agreements which are expressly required to be performed and are performed in full on or before 24) months from the Closing Date) (the “Survival Period”). The parties agree that no claim may be brought based upon, directly or indirectly, any of the representations and warranties contained in this Agreement shall survive such Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before after the expiration Survival Period. The termination of the applicable representation or warranty, such claims representations and warranties provided herein shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end not affect a party in respect of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants good faith claim made by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made in reasonable detail in writing received by the Indemnified Party. No right of indemnity against any claim of a third other party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claimSurvival Period.
(ib) The Company agrees to indemnify From and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within after the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i)Closing, the Company shall indemnify, save and hold harmless Purchaser from and against any and all costs, losses, liabilities, obligations, damages, claims, judgments, awards, and expenses (whether or not be liable to arising out of third-party claims), including interest, penalties, reasonable attorneys’ fees and any party otherwise entitled to indemnification pursuant thereto: amounts paid in settlement of the foregoing (Acollectively, “Losses”) incurred in respect connection with, arising out of, or resulting from (i) any breach of any loss, claim, damage, liability representation or expense warranty made by the Company in Section 2.1 hereof or in the certificate delivered pursuant to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party Section 3.2(e); or (Bii) for any settlement effected breach of any covenant or agreement to be performed by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayedCompany in this Agreement.
(c) If a person entitled to indemnity hereunder From and after the Closing, Purchaser shall indemnify, save and hold harmless the Company from and against any and all Losses incurred in connection with, arising out of, or resulting from (an "Indemnified Party "i) asserts that any party hereto (breach of any representation or warranty made by Purchaser in Section 2.2 hereof or in the "Indemnifying Party ") has become obligated to the Indemnified Party certificate delivered pursuant to Section 8.1(b3.3(d), ; or if (ii) any suit, action, investigation, claim breach of any covenant or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated agreement to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or be performed by Purchaser in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delaythis Agreement.
(d) In fulfilling Each party entitled to indemnification under this Section 5.1 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party (at its expense) to assume the defense of any such claim or any litigation resulting therefrom; provided, that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld, conditioned or delayed), and the Indemnified Party may participate in such defense at such Indemnified Party’s expense; and provided, further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 8.1Agreement, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between unless such Indemnified Party failure is actually materially and the Indemnifying Party, adversely prejudicial to the Indemnifying Party shall have the right to investigate, defend, settle in defending such claim or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party litigation and in such manner as the Indemnifying Party may in its sole discretion deem appropriate; providedcase, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory only to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement extent of such counselprejudice. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claimforegoing, action or proceeding, the an Indemnified Party shall have the right to employ separate retain its own counsel, with the reasonable fees and expenses of no more than one such counsel (at standard rates not in excess of those paid by the expense of the Indemnifying Indemnified Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion ordinary course of counsel its business) to the Indemnified Party, use of counsel of be paid by the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or if (Bi) the Indemnifying Party shall have failed, or is not have employed entitled to assume, the defense of such claim in accordance with this Section 5.1(d); (ii) the employment of such counsel reasonably satisfactory to has been specifically authorized in writing by the Indemnifying Party; or (iii) representation of such Indemnified Party to represent by the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if counsel retained by the Indemnifying Party shall authorize the would be inappropriate due to actual or potential differing interests between such Indemnified Party to employ separate and any other party represented by such counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Partyin such proceeding.
(e) If for An Indemnified Party shall use commercially reasonable efforts to mitigate any reason (other than Losses which form the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing basis of an indemnification by the Company is unavailable to claim under this Section 5.1; provided, however, that such commercially reasonable efforts shall not require any Indemnified Party to commence any litigation, make any material monetary expenditure, or is insufficient offer or grant any material accommodation (financial or otherwise) to hold it harmless as and any third party. Under no circumstances shall any Losses include consequential, indirect, punitive or other similar damages, including diminution of value, lost profits, lost revenues, business interruptions, or loss of business opportunity or reputation. Losses shall be calculated only to the extent attributable to the transactions contemplated by subclauses this Agreement (b)and, (c) and (d) abovefor the avoidance of doubt, then the Company shall contribute not include any Losses to the amount paid extent attributable to or payable by such Indemnified Party as a result of such lossarising under any other agreements or arrangements, claimincluding but not limited to joint ventures, damage or liability in such proportion as is appropriate to reflect the relative benefits received by between the Company and its Affiliatessubsidiaries, on the one hand, and the Purchasers Purchaser and any other applicable Indemnified Party, as the case may beits subsidiaries, on the other hand). The amount of any Losses for which indemnification is provided under this Section 5.1 shall be net of any amounts actually recovered by the Indemnified Party from third parties, including under insurance policies with respect to such Losses (which the Indemnified Party shall use commercially reasonable efforts to recover), and shall be reduced to take account of any net tax benefit actually realized by the Indemnified Party in the form of a reduction of the cash taxes actually payable in the year the indemnity payment is made or a prior year to the extent such reduction arises from the incurrence or payment of any such Losses.
(f) An Indemnifying Party shall not be liable for any settlement of a claim effected without its written consent (which consent will not be unreasonably withheld, conditioned or delayed). No Indemnifying Party, in its defense of any such claim, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which (i) does not include as well an unconditional term thereof the giving by the claimant or plaintiff to such claim a release to the Indemnified Party from all liability with respect to such claim; and (ii) is not entirely indemnifiable by the Indemnifying Party pursuant to this Article 5, and imposes any injunctive relief or other restrictions of any kind or nature on any Indemnified Party.
(g) Unless otherwise required by law, the Company and Purchaser agree to treat any indemnity payment made pursuant to this Article 5 as any other relevant equitable considerationsan adjustment to the Purchase Price for U.S. federal, state, local and non-U.S. Tax purposes.
Appears in 1 contract
Sources: Securities Purchase Agreement (Empire State Realty Trust, Inc.)
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the a Closing Date) contained in this Agreement shall be deemed made at each Closing as if made at such time and shall survive such Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival periodapplicable period of survival, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the applicable period of survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each the Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such the Purchaser or any of their Affiliates within the meaning of either Section section 15 of the Securities Act or Section section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. and
(ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party Party") asserts that any party hereto (the "Indemnifying Party Party") ----------------- ------------------ has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 twenty (20) Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Survival Indemnification. (a) All of the terms and conditions of this Agreement, together with the representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained herein or in any instrument or document delivered pursuant to this Agreement Agreement, shall be deemed made at the Closing as if made at such time (except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such specified date) and shall survive such the Closing for two yearseighteen (18) months, except that (i) with respect to claims asserted pursuant to this Section 8.1 9.1 before the expiration of the applicable representation representation, warranty, covenant, or warrantyagreement, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) the representations and warranties in Sections 3.93.12, 3.12 3.17, 3.18, 4.12, 4.17 and 3.13 4.18 and their related schedules shall survive until thirty (30) days after the end of the applicable statute of limitationslimitations (as waived, tolled or amended), and (iii) Section 3.2 the representations and warranties in Sections 3.4, 3.8, 3.24, 4.4, 4.23 and their related schedules and this Section 8.1 9.1 shall survive indefinitely; provided that the representations, warranties and indemnities for which as indemnification Claims shall be pending as of the end of the applicable period referred to herein shall survive with respect to such Claim until the final disposition thereof. All statements as to factual matters contained in any certificate certificate, document or other instrument executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. The representations and warranties in this Agreement and the schedules attached hereto or in any writing delivered in connection herewith shall in no event be affected by any investigation, inquiry or examination made for or on behalf of any party or be affected by the Knowledge of any officer, director, stockholder, employee, partner or agent of any party seeking indemnification hereunder or by the acceptance of any certificate or opinion from any third party. In addition, in no event will any disclosure of any event or circumstance made after the date hereof and prior to the Closing serve to amend any representation or warranty for any purpose of this Agreement. No claim Claim may be commenced under this Section 8.1 9.1 (or otherwise) following expiration of the survival periodapplicable period of survival, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim Claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Reliant Interactive Media Corp)
Survival Indemnification. 9.1 Survival; Effect of Materiality Qualifiers.
(a) All representations, warranties, covenants The representations and agreements (except covenants and agreements which are expressly required to be performed and are performed in full warranties of Vodafone under this Agreement shall terminate on or before the Closing Date) contained in this Agreement shall survive such Closing for two years, except that (ix) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warrantyrepresentations and warranties in Sections 3.1, such claims 3.2 and 3.12 shall survive the Closing until the date that is twelve (12) months after the Closing Date, at which time they are finally liquidated or otherwise resolvedwill terminate and (y) the representations and warranties in Sections 3.7(b), (ii) Sections 3.9, 3.12 3.8 and 3.13 3.9 shall survive the Closing until thirty (30) days after the end expiration of the applicable statute of limitations, at which time they will terminate. The representations and (iii) Section 3.2 warranties of Verizon under this Agreement shall terminate on the Closing Date, except that the representations and this Section 8.1 warranties in Sections 4.1, 4.3 and 4.16 shall survive indefinitelythe Closing until the date that is twelve (12) months after the Closing Date, at which time they will terminate. All statements as The covenants and other agreements of the parties under this Agreement or in any instrument delivered pursuant to factual matters this Agreement that specify performance prior to the Closing Date (other than Sections 5.1, 5.17 and 5.18, which shall terminate on the Closing Date, provided, that the covenants contained in any certificate executed Section 5.1 and delivered by the parties 5.18(f) shall, for purposes of indemnification pursuant hereto shall be deemed to be representationsSection 9.2(c), warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 survive until thirty (or otherwise30) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to days after the expiration of the survival period provided aboveapplicable statute of limitations) shall survive the Closing until the expiration of twelve (12) months after the Closing Date, at which time they will terminate. The covenants and all other conditions hereunder are satisfiedagreements of the parties under this Agreement or in any instrument delivered pursuant to this Agreement that specify performance following the Closing Date shall survive the Closing in accordance with their terms. A claim Notwithstanding the preceding sentences, any breach or inaccuracy of any representation or warranty or any breach of any covenant or agreement in respect of which indemnity may be sought under this Agreement shall be made or commenced hereunder by survive the Indemnified Party delivering time at which it would otherwise terminate pursuant to the Indemnifying Party a preceding sentences, if written notice specifying in reasonable detail the nature of the claim, inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the amount claimed (if known or reasonably estimable), and the factual basis for the claimparty against whom such indemnity may be sought prior to such time.
(ib) The Company agrees to indemnify and hold harmless each Purchaser and its partnersFollowing the Closing, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser in determining whether any representation or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by warranty in this Agreement was true and correct as of any particular date and the other Documents, whether or not consummated, (B) amount of any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) Damages in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim representation or institution warranty to be true and correct as of any particular date, any qualification or limitation as to materiality (whether by reference to “Vodafone Material Adverse Effect”, “Verizon Material Adverse Effect” or otherwise) or knowledge contained in such action representation or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party warranty shall be borne by the Indemnified Partydisregarded.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Stock Purchase Agreement
Survival Indemnification. 10.01 Survival. The covenants set forth in Sections 2.01, 2.11, 2.12, -------- 2.14, 5.07, 5.09, 5.10, 5.11, 5.12, 6.03, 6.04, 6.05, 7.06, 7.08. 7.09, 7.11, 10.01, 10.02 10.03, 10.04, 10.05 and 12.11 and in the Assignment and Assumption Agreements, the Receipt and Assumption Agreements and the Deeds shall survive the Closing indefinitely. The covenants, representations and warranties set forth in Sections 2.07, 3.09, 3.15, 5.04, 5.05, 7.04, 7.05 and 7.07 shall survive the Closing until the expiration of all applicable statutory periods of limitations (a) All representationsafter giving effect to any waiver, warrantiesmitigation or extension of any such statutory periods of limitations). Except as otherwise provided therein, covenants the covenants, representations and agreements (except covenants warranties of the Buyers set forth in Section 6.07 and agreements which are expressly required to be performed in the Charlevoix Lease, the Bethesda Sublease, the Sedgwick Sublease, the Promissory Notes, the Mortgages and are the Subleases shall survive the Closing until all obligations, of the Buyers thereunder shall have been paid and performed in full on or before full. The covenant of the Seller set forth in Section 5.08 shall survive the Closing Date) contained until the expiration of the period specified therein. All of the other covenants, representations and warranties of the Seller and the Buyers set forth in this Agreement or in any certificate or other writing delivered pursuant to this Agreement or in connection with this Agreement shall survive such the Closing for two years, except that (i) with respect to claims asserted pursuant to this Section 8.1 before until the expiration second anniversary of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(i) The Company agrees to indemnify and hold harmless each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(c) If a person entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlementClosing Date. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties set forth in such claim, action this Section 10.01 or proceeding; provided, however, that elsewhere in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it this Agreement or any other person entitled to indemnification and reimbursement hereunder with Transaction Document, any covenant, representation or warranty in respect to any of which indemnity may be sought under section 10.02 or Section 10.03 shall survive the time at which such claim, action cover representation or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel warranty would otherwise terminate pursuant to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after preceding two sentences if notice of the assertion incorrectness or breach of any such claim covenant, representation or institution of any warranty giving rise to such action or proceeding. In all other situations, the Indemnified Party right to indemnity shall have been given to the party against whom such indemnity may be sought prior to the time at which such covenant, representation or warranty would otherwise terminate pursuant to the preceding two sentences. Any such notice shall describe the event, circumstance or state of facts giving rise to the claimed incorrectness or breach of such covenant, representation or warranty and the Section or Sections of this Agreement or any other Transaction Document upon which such right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Partyindemnity is based.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Sources: Facility Agreement (Vencor Inc)
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained in this Agreement shall survive such the Closing for two years, 18 months (except that (i) covenants and agreements that are required to be performed after the Closing Date (including without limitation the covenants and agreements contained in Sections 5.1(b), 5.2, 5.8, 5.9, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17, 6.5 and 6.6) and (ii) Sections 3.12 and 3.13 and the last sentence of Section 3.2(a), which shall survive indefinitely). Notwithstanding the foregoing, with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation representation, warranty, covenant or warrantyagreement, such claims shall survive until the date they are finally liquidated adjudicated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(ib) The Company agrees to indemnify and hold harmless each Purchaser and its partnerseach Purchaser Affiliate (each an "Indemnified Person"), Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against (and to reimburse each indemnified person as the same are incurred) any and all losseslosses (including, but not limited to, impairment of the value of the Shares and Warrants as of the date such loss first becomes known, but excluding consequential damages), claims, damages or liabilities resulting from any claimdamages, lawsuit or other proceeding by any person liabilities, costs and expenses (collectively, "Losses") to which any party indemnified under this clause Indemnified Person may become subject or which is related to or arises any Indemnified Person may incur based upon, arising out of (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (B) any breach of, or failure to perform in connection with (i) a breach of any representation, warranty or covenant of the representations, warranties, covenants or agreements made in any of the Documents this Agreement by the Company or (Cii) any action claim, litigation, investigation or omission proceeding brought by or on behalf of any Person other than the Company relating to the Issuance, and to reimburse each Indemnified Person upon demand for any reasonable legal or PRSI other reasonable out of pocket expenses incurred in connection with the transactions contemplated hereby investigating or by the other Documents, and will reimburse each defending any of the Purchasers foregoing, provided the maximum amount indemnifiable to each Purchaser (and any other party indemnified its successors or assigns) under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company ) shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect exceed the purchase price of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected Securities purchased by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayedPurchaser.
(c) If a person Person entitled to indemnity hereunder (an "Indemnified Party Party") asserts that any party hereto the Company (the "Indemnifying Party Party") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to shall notify the Indemnifying Party promptly and to shall cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceedingproceedings, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary thereforParty. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing the Indemnifying Party has provided each Indemnified Party with a written acknowledgment notice of any its acceptance of liability under this Section 8.1 8.1, as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion reasonably deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement or entry of judgment imposing any obligations on any other party heretohereto other than financial obligations for which such party will be indemnified hereunder, unless such party has consented in writing to such settlement. Notwithstanding anything settlement or judgment (which consent may be given or withheld in its sole discretion) and (iii) the Indemnifying Party will not consent to the contrary contained hereinany settlement or entry of judgment unless, in connection therewith, the Indemnifying Party may retain one firm obtains a full and unconditional release of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder from all liability with respect to any such claimsuit, action action, investigation claim or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counselproceeding. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct participate in the defense or investigation of such claim, action or proceeding proceeding, which participation shall be at the expense of the Indemnifying Party, if (Ai) in on the written opinion advice of counsel to the Indemnified Party, Party use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a material conflict of interest, or (Bii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding (iii) if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party (iv) such action shall be borne by seek relief other than monetary damages against the Indemnified Party.
(e) If for The Company and the Purchasers agree that any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification payment of Losses made hereunder will be treated by the Company is unavailable parties on their tax returns as an adjustment to any the Purchase Price. If, notwithstanding such treatment by the parties, a final determination (which shall include the form 870-AD or successor form) with respect to the Indemnified Party or is insufficient any of its Affiliates causes any such payment not to hold it harmless be treated as and an adjustment to the extent contemplated by subclauses (b), (c) and (d) abovePurchase Price, then the Company Indemnifying Party shall contribute indemnify the Indemnified Party for any taxes payable by the Indemnified Party or any subsidiary by reason of the receipt of such payment (including any payments under this Section 8.1(e)), determined at an assumed marginal tax rate equal to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability highest marginal tax rate then in such proportion as is appropriate to reflect effect for corporate taxpayers in the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerationsjurisdiction.
Appears in 1 contract
Sources: Preferred Stock and Warrant Purchase Agreement (Liberty Media Corp /De/)
Survival Indemnification. (a) All representations, warranties, covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before the Closing Date) contained in this Agreement or delivered hereunder made by the Company and the Purchasers shall be deemed represented and made by such party on the Closing Date as if made at such time and shall survive such the Closing (but shall not in any manner be deemed to be repeated on any other date) for two three years, except that (i) and other covenants and agreements which, in accordance with their terms, extend beyond such date shall also survive in accordance with their terms. With respect to claims asserted by an Indemnifying Party pursuant to this Section 8.1 7.03, before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties warranties, covenants and covenants agreements by such party hereunder. No claim may be commenced with respect to any representation or warranty under this Section 8.1 7.03 (or otherwise) following expiration of the survival periodapplicable period of survival, and upon such expiration the Indemnifying Party (as defined in Section 7.03(e) below) shall be released from all liability with respect to claims with respect to any representation or warranty under each such section this Section 7.03 not theretofore previously made by the Indemnified PartyParty (as defined in Section 7.03(e) below). No right of indemnity against any claim of a third party shall arise from any representation, warranty warranty, covenant or covenant agreement of an Indemnifying Party herein contained, unless such third-party claim is filed asserted, served, filed, overtly threatened, or lodged against the Indemnified Party on or prior to the expiration of the applicable period of survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party by delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim. Except for the availability of dividends at the "Increased Dividend Rate" as provided in the Certificate, the indemnification provided for in this Section 7.03 shall be the sole remedy of the Purchasers for breach by the Company of any such representations, warranties, covenants or agreements contained in this Agreement, the Warrants, the Stockholders Agreement, the Certificate or the certificate furnished by the Company pursuant to Section 6.02(e) of this Agreement or in connection with the issuance and sale of the Preferred and the Warrants to the exclusion of any other remedy at law or equity (including recision but excluding injunctive relief).
(ib) The Company agrees to indemnify and hold harmless each Purchaser of the Purchasers and its their respective partners, Affiliatesaffiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser the Purchasers or any of their Affiliates affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and any partner of any of -------- --- them against any loss, claim, liability, cost, expense or damage (including, without limitation, reasonable counsel fees and disbursements and court costs) (collectively, "Losses") arising from (i) the breach of any of the ------ representations or warranties made by the Company in this Agreement, the Warrants, the Stockholders Agreement or the certificate furnished by the Company at the Closing pursuant to Section 6.02(e) of this Agreement or (ii) the breach or failure of the Company duly to perform or observe any covenant or agreement on the part of the Company to be performed or observed by the Company pursuant to the terms of this Agreement, the Warrants, the Stockholders Agreement, the Certificate or the certificate furnished by the Company at the Closing pursuant to Section 6.02(e) of this Agreement or in connection with the issuance and sale of the Preferred and the Warrants that has not been waived by the other party, whether or not involving a claim, suit, action or proceeding brought by a third party (including any governmental entity). The Purchasers acknowledge that, with respect to any claims for indemnification under this Section 7.03 not involving a claim, suit, action or proceeding brought by a third party, Losses are intended to be limited to any decrease in value of the Purchasers' investment in the Securities allegedly caused by the breach or failure of the Company giving rise to such claim for indemnification.
(c) The Purchasers, severally and not jointly, agree to indemnify and hold harmless the Company and its respective partners, affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling the Company or any of its affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and any partner of any of them against all lossesany loss, claims, damages or liabilities resulting from any claim, lawsuit liability, cost, expense or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of damage (A) the transactions contemplated by this Agreement and the other Documentsincluding, whether or not consummatedwithout limitation, (B) any breach of, or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursementsdisbursements and court costs) incurred accruing from or resulting by such Purchaser reason of (i) the breach of any of the representations or warranties made by the Purchasers in this Agreement or in any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims certificate or other proceedings. The foregoing provisions are expressly intended document or instrument furnished by the Purchasers pursuant to cover reimbursement of legal and other expenses incurred in a deposition this Agreement or other discovery proceeding. (ii) Notwithstanding the foregoing clause breach or failure of any Purchaser duly to perform or observe any covenant or agreement on the part of such Purchaser to be performed or observed that has not been waived by the other party.
(i), d) If the Company shall not be liable indemnification provided for in this Section 7.03 (the "Indemnification Obligation") is unavailable to any party otherwise entitled or insufficient to indemnification pursuant thereto: hold --------------- ---------- harmless an Indemnified Party under subsection (Ab) or (c) above in respect of any loss, claim, damageliability, cost, expense or damage (or actions in respect thereof) referred to therein, then each Indemnifying Party that would otherwise have liability pursuant to subsection (b) or expense (c) above shall contribute to the extent amount paid or payable by such Indemnified Party as a result of such loss, claim, liability, cost, expense or damage in such proportion as is appropriate to reflect the same is determined, in final judgment relative benefits received by a court having jurisdiction, to have resulted the Indemnifying Party on the one hand and the Indemnified Party on the other from the gross negligence sale and purchase of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or willful misconduct of if the Indemnified Party failed to give the notice required under subsection (e) below, then each Indemnifying Party shall contribute to such party amount paid or (B) for any settlement effected payable by such party without Indemnified Party in such proportion as is appropriate to reflect not only such relative benefits but also the written consent relative fault of the CompanyIndemnifying Party on the one hand and the Indemnified Party on the other in connection with the statements, omissions or actions which consent shall not be unreasonably withheld resulted in such losses, claims, damages or delayedliabilities (or actions in respect thereof), as well as any other relevant equitable considerations.
(ce) If a person entitled to indemnity hereunder (an "Indemnified Party ----------- Party") asserts that any party hereto (the "Indemnifying Party Party") has become ----- ------------ ----- obligated to the Indemnified Party pursuant to Section 8.1(b)subsection (b) or (c) above, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(df) In fulfilling its obligations under this Section 8.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the The Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) -------- the Indemnifying Party will not consent to any settlement imposing any material obligations on any other party heretohereto other than financial obligations for which such party will be indemnified hereunder, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that -------- ------- in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be exist one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct participate in the defense or investigation of such claim, action or proceeding proceeding, and the Indemnifying Party shall bear the expense of such separate counsel, if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (Bi) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense proceeding or investigation of such claim, action or proceeding if (ii) the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense expense.
(g) Notwithstanding the foregoing, in the event the Company is the Indemnifying Party and is unable, pursuant to the terms of (i) the "Existing -------- Financing Arrangements" (as defined in the Certificate), (ii) any of the --------- ------------ Existing Financing Arrangements, as amended, waived or if supplemented after the fees Closing Date, but without giving effect to any such amendments, waivers or supplements to the extent they have the effect of further restricting in any material respect, as compared to the restrictions imposed by Section 8.11 of the "Current Credit Agreement" (as defined in the Certificate) and expenses Section 4.07 of counsel for the "Indenture" (as defined in the Certificate) (the "Existing Restricted Payment Covenants"), as determined in good faith by the ------------------------------------- Company's Board of Directors, the Company's ability to satisfy its Indemnification Obligations under this Section 7.03, or (iii) any new "Financing Arrangements" (as defined in the Certificate) entered into by the Company or its Subsidiaries after the Closing Date, but only to the extent such new Financing Arrangements do not have the effect of further restricting in any material respect, as compared to the restrictions imposed by the Existing Restricted Payment Covenants, as determined in good faith by the Company's Board of Directors, the Company's ability to satisfy its Indemnification Obligations under this Section 7.03, the Company shall satisfy such obligations by issuing to the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred shares of Series A Preferred Stock with an aggregate Liquidation Preference equal to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to 115% of the amount paid finally determined to be owed with respect to such Indemnification Obligation or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Partyobligation, as the case may be, on the other hand, as well as any other relevant equitable considerationsapplicable.
Appears in 1 contract
Sources: Securities Purchase Agreement (Impac Group Inc /De/)
Survival Indemnification. (a) All representations, warranties, The Parties agree that the covenants and agreements (except covenants and agreements which are expressly required to be performed and are performed in full on or before prior to the Closing Date) contained in this Agreement shall or in any instrument delivered pursuant to this Agreement will not survive such the Closing for two yearshereunder and all rights, except that claims and causes of action (iwhether in contract or in tort or otherwise, or whether at law or in equity) with respect thereto shall terminate at the Closing, and none of the Parties will have any Liability to claims asserted pursuant each other after the Closing for any breach thereof. The Parties agree that the representations and warranties of the Seller Parties made in Article V and the representations and warranties of the Purchaser Parties made in Article VI, and covenants contained in this Agreement (and in any agreement, document or instrument delivered in connection with this Agreement) to this Section 8.1 before be performed after the Closing will survive the Closing hereunder until the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitationslimitations or for such shorter period explicitly specified therein, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall each Party will be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior liable to the expiration of other after the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis Closing for the claimany breach thereof.
(ib) The Company agrees Subject to indemnify the limitations in Section 10.1(d), the Seller Parties shall, jointly and severally, indemnify, defend and hold harmless each the Purchaser Parties, and its partnerstheir respective directors, managers, officers, Affiliates, officersemployees, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such representatives (collectively, the “Purchaser or any of their Affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act Indemnitees”), from and against all losses, claims, damages Losses that are incurred or liabilities suffered by any of them in connection with or resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out each of the following: (A) the transactions contemplated by this Agreement and the other Documents, whether or not consummated, (Bi) any material misrepresentation or breach of, or failure to perform inaccuracy in, any of the representations, warranties, covenants representation or agreements warranty made by a Seller Party in this Agreement or in any of the Documents by the Company or (C) any action or omission of the Company or PRSI in connection with the transactions contemplated hereby or by the other Documents, and will reimburse each of the Purchasers and any other party indemnified under instrument delivered pursuant to this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. Agreement; (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect breach of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment covenant made by a court having jurisdictionSeller Party in this Agreement or in any instrument delivered pursuant to this Agreement;(iii) any Excluded Liability; and (iv) Fraud, to have resulted from the gross negligence intentional misrepresentation, or willful misconduct of such party or (B) for any settlement effected Willful Breach by such party without the written consent of the Company, which consent shall not be unreasonably withheld or delayeda Seller Party.
(c) If Subject to the limitations in Section 10.1(d), the Purchaser Parties shall indemnify, defend and hold harmless the Seller Parties and their respective directors, managers, officers, Affiliates, employees, agents and representatives (collectively, the “Seller Indemnitees”), from and against all Losses that are incurred or suffered by any of them in connection with or resulting from each of the following: (i) any material misrepresentation or breach of any representation or warranty made by a person Purchaser Party in this Agreement or in any instrument delivered pursuant to this Agreement; (ii) any breach of any covenant made by Purchaser in this Agreement or in any instrument delivered pursuant to this Agreement; (iii) any Post-Closing Liabilities (provided that there shall by no indemnification under this Section 10.1(c) for any Losses for which a Purchaser Indemnitee is entitled to indemnity hereunder (an "Indemnified Party ") asserts that any party hereto (the "Indemnifying Party ") has become obligated to the Indemnified Party indemnification pursuant to Section 8.1(b10.1(b)); and/or (iv) Fraud, intentional misrepresentation or if any suit, action, investigation, claim or proceeding is begun, made or instituted as Willful Breach by a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Purchaser Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under Notwithstanding the foregoing and subject to the proviso at the end of this Section 8.1paragraph, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 8.1 as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained the Seller Parties shall not be obligated to provide any indemnification for Losses pursuant to claims for breaches of representations and warranties under Section 10.1(b)(i) unless the immediate and proximately caused amount of Losses incurred by Purchaser Indemnitees with respect to such breaches of representations and warranties exceeds $50,000 (the Indemnifying Party is reasonably satisfactory to “Threshold”), in which case the Indemnified Party Seller Parties will be liable for all Losses in excess of the Threshold, and (ii) the Indemnifying Party will Purchaser Parties shall not consent be obligated to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, provide any such claim, action or proceeding include more than one Indemnified Party, indemnification for Losses pursuant to claims for breaches of representations and any Indemnified Party shall have reasonably concluded, based on warranties under Section 10.1(c)(i) unless the opinion immediate and proximately caused amount of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder Losses incurred by the Seller Indemnitees with respect to any such claimbreaches of representations and warranties exceeds the Threshold, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense case Purchaser Parties will be liable for all Losses in excess of the Indemnifying Party and to direct the defense or investigation Threshold. The maximum aggregate obligation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (Bi) the Indemnifying Party Seller Parties for Losses pursuant to claims for breaches of representations and warranties under Section 10.1(b)(i) and Purchaser for Losses pursuant to claims for breaches of representations and warranties under Section 10.1(c)(i), shall not have employed counsel reasonably satisfactory to exceed $12,000,000 (the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event“Cap”), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party.
(e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by the Company is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations.
Appears in 1 contract
Survival Indemnification. (a) All representations, warranties, warranties and covenants and agreements contained in this Agreement or in any certificate delivered in connection with the Closing shall survive the Closing for 18 months (except (i) covenants and agreements which that are expressly required to be performed and are performed in full on or before after the Closing Date) Date and the representations contained in this Agreement Sections 3.1, 3.2, 3.3 and 3.4, which shall survive such Closing indefinitely and (ii) representations and warranties contained in Section 3.13, which shall survive for two yearsthe applicable statute of limitation). Notwithstanding the foregoing, except that (i) with respect to claims asserted pursuant to this Section 8.1 before the expiration of the applicable representation or warranty, such claims shall survive until the date they are finally liquidated adjudicated or otherwise resolved, (ii) Sections 3.9, 3.12 and 3.13 shall survive until the end of the applicable statute of limitations, and (iii) Section 3.2 and this Section 8.1 shall survive indefinitely. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 8.1 (or otherwise) following expiration of the survival period, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnified Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third-party claim is filed or lodged against the Indemnified Party on or prior to the expiration of the survival period provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim.
(ib) The Company agrees to indemnify and hold harmless Purchaser, each Purchaser and its partners, Affiliates, officers, directors, employees and duly authorized agents Affiliate and each of their affiliates respective representatives, heirs, successors and assigns (each other an "indemnified person") on an after-tax basis, from and against (and to reimburse each indemnified person controlling such Purchaser or as the same are incurred) any and all losses (including, but not limited to, impairment of their Affiliates within the meaning of either Section 15 value of the Securities Act or Section 20 as of the Exchange Act from and against all losses, date such loss first becomes known) claims, damages or liabilities resulting from any claimdamages, lawsuit or other proceeding by any person liabilities, costs and expenses (collectively, "Losses") to which any party indemnified under this clause person may become subject or which is related to any indemnified person may incur based upon, arising out of, or arises out in connection with (i) a breach of (A) the transactions contemplated by any representation or warranty of this Agreement and by the other Documents, whether or not consummatedCompany, (Bii) any breach of, of any covenant or failure to perform any of the representations, warranties, covenants or agreements made in any of the Documents agreement contained herein by the Company or (Ciii) any action claim, litigation, investigation or omission proceeding brought by or on behalf of any Person other than the Company relating to the Issuance, and to reimburse each indemnified person upon demand for any reasonable legal or PRSI other reasonable out of pocket expenses incurred in connection with the transactions contemplated hereby investigating or by the other Documents, and will reimburse each defending any of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses foregoing, provided (including reasonable counsel fees and disbursementsA) incurred by such Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), the Company shall not be liable have no obligation to indemnify any party otherwise entitled to indemnification pursuant thereto: (A) in respect indemnified person for any Loss resulting from any breach of any lossrepresentation or warranty hereunder (other than representations and warranties contained in Sections 3.1, claim3.2, damage3.3, liability 3.4 or expense 3.13, which shall be indemnified from the first dollar of Loss) unless and until the aggregate amount of all such Losses exceeds $1,000,000 (and then only to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or excess) and (B) the maximum amount indemnifiable to indemnified persons for any settlement effected by such party without the written consent breaches of the Company, which consent representations or warranties contained in this Agreement shall not be unreasonably withheld or delayedexceed $60,000,000.
(c) If a person Person entitled to indemnity hereunder (an "Indemnified Party Party") asserts that any party hereto the Company (the "Indemnifying Party Party") has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to shall notify the Indemnifying Party promptly and to shall cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceedingproceedings, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary thereforParty. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after providing the Indemnifying Party has provided each Indemnified Party with a written acknowledgment notice of any its acceptance of liability under this Section 8.1 8.1, as between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion reasonably deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement or entry of judgment imposing any obligations on any other party heretohereto other than financial obligations for which such party will be indemnified hereunder, unless such party has consented in writing to such settlement. Notwithstanding anything settlement or judgment (which consent may be given or withheld in its sole discretion) and (iii) the Indemnifying Party will not consent to the contrary contained hereinany settlement or entry of judgment unless, in connection therewith, the Indemnifying Party may retain one firm obtains a full and unconditional release of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder from all liability with respect to any such claimsuit, action action, investigation claim or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counselproceeding. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct participate in the defense or investigation of such claim, action or proceeding proceeding, which participation shall be at the expense of the Indemnifying Party, if (Ai) in on the written opinion advice of counsel to the Indemnified Party, Party use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a material conflict of interest, or (Bii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed 20 Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding (iii) if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party (iv) such action shall be borne by seek relief other than monetary damages against the Indemnified Party.
(e) If for The Company and the Purchasers agree that any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification payment of Losses made hereunder will be treated by the Company is unavailable parties on their tax returns as an adjustment to any the Purchase Price. If, notwithstanding such treatment by the parties, a final determination with respect to the Indemnified Party or is insufficient any of its affiliates causes any such payment not to hold it harmless be treated as and an adjustment to the extent contemplated by subclauses (b), (c) and (d) abovePurchase Price, then the Company Indemnifying Party shall contribute indemnify the Indemnified Party for any taxes payable by the Indemnified Party or any subsidiary by reason of the receipt of such payment (including any payments under this 8.1(e)), determined at an assumed marginal tax rate equal to the amount paid highest marginal tax rate then in effect for corporate taxpayers in the relevant jurisdiction.
(f) The obligations of the Indemnifying Party under this Section 8.1 shall survive the transfer, redemption or payable by such conversion of the Securities, the Warrant Shares and the Common Stock issued upon the conversion or exercise thereof, or the closing or termination of any Equity Document. The agreements contained in this Section 8.1 shall be in addition to any other rights of the Indemnified Party as a result against the Indemnifying Party or others. The Indemnifying Party consents to personal jurisdiction, service and venue in any court in the continental United States in which any claim subject to this Agreement is brought by any Indemnified Party.
(g) All obligations of the Purchasers hereunder shall be several and not joint. If any Purchaser fails to purchase Securities hereunder or otherwise defaults on any liability or obligation under this Agreement, no other Purchaser will have any obligation to purchase any such Securities or take or refrain from taking any action on account of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by the Company and its Affiliates, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerationsdefaulting Purchaser.
Appears in 1 contract
Sources: Securities Purchase Agreement (Sandler Capital Management)