General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.
Appears in 2 contracts
Sources: Preferred Share Purchase Agreement (Worldwide Fiber Inc), Preferred Share Purchase Agreement (Worldwide Fiber Inc)
General Indemnification. The Corporation shall (a) Each Stockholder, agrees jointly and severally, with each other Stockholder, except with respect to representations, warranties and covenants that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees with respect to himself only, to indemnify, defend and hold each Investor, its affiliates, Parent and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors Acquisition Sub and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsAffiliates and agents (collectively, consultantsthe "Indemnitees") harmless from an amount equal to (x) a fraction, representativesthe numerator of which is the number of Shares and the denominator of which is the number of shares of Company Common Stock outstanding on the Closing Date multiplied by (y) the amount of all damages, successors and assigns harmless against all Losses arising from the breach losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys' fees and expenses) ("Loss"), except with respect to failures of its representations, warranties, representations and warranties and breaches of covenants or agreements that are made by or agreed to by such Stockholder individually, with respect to which such Stockholder agrees to indemnify the Indemnitees from all Losses, suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by any Stockholder in this Agreement Agreement, in any of the Transaction Documents or in any certificate or other instrument delivered or document provided to Parent or Acquisition Sub pursuant heretoto this Agreement to be true and correct in all respects as of the date of this Agreement and as of the Closing Date (unless made as of another date), includingor (ii) any breach or alleged breach by any Stockholders of any of their covenants or agreements contained herein or therein, in each case, without limitationgiving effect to any "materiality", "knowledge" or similar qualifications; provided, however, that (1) the Documents. Notwithstanding anything Stockholders shall not have any obligation to indemnify Parent or Acquisition Sub from and against any Loss resulting from, arising out of, relating to, in the contrary nature of, or caused by the breach of any such surviving representation or warranty or covenant of the Stockholders contained in this Agreement, no indemnification payment by any of the Corporation Transaction Documents, or any certificate delivered pursuant to this Section 11 with respect to any Agreement until Parent or Acquisition Sub have suffered Losses otherwise payable hereunder as a result in excess of a breach of its representations and warranties $200,000 in the aggregate (other than any Losses resulting from breaches of after which the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) Stockholders shall be payable (a) until the time as such obligated to indemnify Parent and Acquisition Sub from and against Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in they exceed $200,000); (2) the aggregate for all Investors, exceed the Deductible; or (b) with respect amount to be payable to the Investor Entities associated with each Investor, in Indemnitees by the Stockholders for claims of indemnification under this Section 8.2(a) shall not exceed an aggregate amount in excess equal to 25 percent of the Purchase Price Acquisition Price; and (3) all amounts payable to the Indemnitees by the Stockholders for claims for indemnification under this Section 8.2(a) shall be paid by delivery of shares of Parent Common Stock by the Escrow Agent pursuant to the terms of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased Escrow Agreement and shall be borne pro rata by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.Stockholders,
Appears in 2 contracts
Sources: Share Exchange Agreement (Eventures Group Inc), Share Exchange Agreement (Eventures Group Inc)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) If, after the Closing Date, Buyer, the Company and/or their respective affiliates (each a "Buyer Indemnitee" and together the "Buyer Indemnitees") suffer any breach damages, losses, liabilities, obligations, claims of any of the representationskind, warranties, covenants interest or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto expenses (including, without limitation, reasonable attorneys' fees and expenses but excluding any consequential or indirect damages) ("Loss") as a result of (i) the Documentsfailure of any representation or warranty made by the Company (A) in this Agreement to be true and correct as of the date of this Agreement or (B) in any certificate delivered to Buyer pursuant to Sections 5.2(a) and/or 5.2(b) to be true and correct as of the Closing Date, (ii) any breach by the Company of any of its covenants or agreements contained herein or in any Transaction Document which are to be performed by the Company before the Closing Date, (iii) any breach by any Member of any of their respective covenants or agreements contained in this Agreement (other than the covenants and agreements set forth in Section 4.12 since the indemnification provisions for the benefit of Buyer Indemnitees for such Section 4.12 are provided for in Section 7.2(c)), (iv) any liability for Taxes attributable to the Pre-Closing Tax Period of any Target Company in excess of the sum of (A) the Pre-Closing Tax Accrual Amount (as set forth in the Final Statement of Purchase Price) and (B) the amount of Taxes included in the current liabilities within the Net Working Capital Adjustment (as set forth in the Final Statement of Purchase Price), or (v) any Selling Expenses not taken into account in determining the Estimated Purchase Price or the Final Purchase Price in accordance with Section 1.4, then, subject to the other provisions of this Article 7, such Buyer Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the Escrow Account.
(b) any third party claim made against an Investor Entity relating After the Closing, Buyer and Parent agree to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, jointly and severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of Members and/or their respective officers, directorsdirectors and/or affiliates (each a "Seller Indemnitee" and together the "Seller Indemnitees") harmless from any Loss suffered or paid by such Seller Indemnitees, employeesdirectly or indirectly, agentsas a result of (i) the failure of any representation or warranty made by Buyer or Parent (A) in this Agreement to be true and correct as of the date of this Agreement or (B) in any certificate delivered to the Company pursuant to Sections 5.3(a) and/or 5.3(b) to be true and correct as of the Closing Date, consultants, representatives, successors and assigns harmless against all Losses arising from the (ii) any breach by Buyer or Parent of any of its representations, warranties, their covenants or agreements in this Agreement contained herein or in (iii) any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment breach by the Corporation pursuant Company or Parent of any of their covenants or agreements contained herein which are to this Section 11 with respect be performed by the Company after the Closing Date.
(c) After the Closing, each Restricted Member agrees to severally (but not jointly) defend and hold the Buyer Indemnitees harmless from any Losses otherwise payable hereunder Loss suffered or paid by such Buyer Indemnitees, directly or indirectly, as a result of a breach by such Restricted Member of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties such Restricted Member's respective covenants or agreements contained in Section 2.7, as they relate 4.12 which are to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as performed by such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, Restricted Member on or after the Closing Date; provided, however, that no such Loss recoverable under this Section 7.2(c) by any Buyer Indemnitee shall be reimbursed from the Escrow Account.
(d) The obligations to indemnify and hold harmless pursuant to clause (i) of Section 7.2(a) and pursuant to clause (i) of Section 7.2(b) shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 7.1, except for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims shall survive until final resolution thereof.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Emeritus Corp\wa\), Unit Purchase Agreement (Emeritus Corp\wa\)
General Indemnification. The Corporation (a) Following the Closing and subject to the other limitations in this Article VI, the Sellers shall indemnifyindemnify and defend the Buyer, defend the Companies (following the Closing) and hold each Investor, its affiliates, and each of their respective directors, managers, officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors agents and assigns Affiliates (collectively, the “Buyer Indemnitees”) and shall hold each an "Investor Entity") of the Buyer Indemnitees harmless from any and against all Losses such Buyer Indemnitee may suffer, sustain or incur arising from, in connection with, or resulting from: (i) any misrepresentation or breach of any representation or warranty made by each Company or each Seller in Article II or III of this Agreement (other than the Fundamental Representations and the Tax Representations) or any other certificate delivered hereunder by (or on behalf of) a Company or a Seller, (ii) any misrepresentation or breach of any Fundamental Representation or Tax Representation made by each Company or each Seller, (iii) any breach of any covenant, agreement or undertaking made by each Seller in this Agreement, (iv) any Indemnified Tax, (v) any monetary payments required to be made in connection with the SEIT Settlement Agreement except to the extent the Base Purchase Price was reduced by such amount, (vi) solely with respect to periods prior to the Closing, all liabilities relating to a Pre-Closing Tax Period for overtime, wage and hour, workers’ compensation, unemployment insurance, disability benefits and all other benefits, in each case, arising as defined belowthe result of the Company improperly classifying an employee prior to the Closing as an independent contractor, (vii) incurred any amounts related to stock option, restricted stock unit, restricted stock or suffered by an Investor Entity any other equity or equity based awards (whether incurred including any employer Taxes related thereto) granted to any employees of the Companies under any equity or suffered directly incentive award plans of Parent and (viii) the Retained Litigation.
(b) Following the Closing and subject to the other limitations in this Article VI, the Buyer and the Companies shall indemnify and defend the Sellers and their respective directors, officers, employees, consultants, representatives, agents and Affiliates (collectively, the “Seller Indemnitees”) and shall hold each of the Seller Indemnitees harmless from any and all Losses such Seller Indemnitee may suffer, sustain or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) incur arising out offrom, relating toin connection with, or resulting from (ai) any misrepresentation or breach of any representation or warranty made by Buyer in Article IV of this Agreement (other than Fundamental Representations), (ii) any misrepresentation or breach of any Fundamental Representation made by the Buyer and (iii) any breach of any of the representations, warranties, covenants or agreements covenant made by it Buyer or the Companies in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the DocumentsAgreement. Notwithstanding anything to the contrary in this Agreement, no the Seller hereby waives any right to seek or obtain indemnification payment by the Corporation pursuant to this Section 11 with respect to or contribution from any Company for Losses otherwise payable hereunder as a result of any breach by a breach Company of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7representation, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants warranty or covenant contained in this Agreement or in any other Related Document and to willful misrepresentation, fraud which any Company or deceit, which shall not be subject to the Deductible or LimitSeller is a party to.
(c) shall be payable (ai) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with With respect to the Investor Entities associated with each Investorindemnity under Section 6.2(a)(i), in an the maximum aggregate amount in excess obligation of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) Sellers shall not exceed $5,500,000 (the "Limit"“Cap”). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.;
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Select Medical Corp)
General Indemnification. The Corporation (a) Subject to the other provisions of this Article 6, from and after the Closing, the Company shall indemnify, defend and hold each InvestorBuyer and its Affiliates, its affiliatesRepresentatives, equity holders, members, managers and each of partners and their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity"each, a “Buyer Indemnitee”) harmless from any and against all Losses Liabilities, claims of any kind, interest or expenses (as defined belowincluding reasonable attorneys’ fees and expenses) incurred (each, a “Loss”) suffered or suffered by an Investor Entity (whether incurred or suffered paid, directly or indirectly through ownership of Series A Non-Voting Preferred Shares indirectly, as a result of, in connection with, or Conversion Shares) arising out of, relating to, or resulting from :
(ai) any breach of any representation or warranty of the representationsCompany contained in Article 3 (other than any Fundamental Representations and Warranties and any Statute of Limitations Representations and Warranties contained in Article 3) or in any certificate delivered by the Company to Buyer pursuant to this Agreement;
(ii) any breach of any Fundamental Representations and Warranties or any Statute of Limitations Representations and Warranties contained in Article 3;
(iii) without limiting Section 6.2(b)(i) or Section 6.2(b)(ii), warranties, any Excluded Liabilities; and
(iv) any breach by Company of its respective covenants or agreements made by it in this Agreement contained herein that are to be performed on or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, following the Documents, and Closing Date.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by the Corporation financed in whole or in partother provisions of this Article 6, directly or indirectlyfrom and after the Closing, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, Buyer shall indemnify, defend and hold the Corporation, Company and its affiliates, respective Affiliates and each of Representatives and their respective officers, directors, employees, agents, consultants, representatives, successors and assigns (each, a “Company Indemnitee”) harmless against all Losses from any Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising from out of:
(i) any breach of any representation or warranty made by Buyer contained in Article 4 or in any certificate delivered by the Buyer pursuant to this Agreement;
(ii) any breach by Buyer of any of its representations, warranties, respective covenants or agreements in this Agreement contained herein that are to be performed on and following the Closing Date; and
(iii) without limiting Section 6.2(a)(i) or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"6.2(a)(ii), and then only any Liabilities arising following the Closing to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect related to the Investor Entities associated with each Investor, in an aggregate amount in excess operation or conduct of Business (including the Purchase Price ownership of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determinationproperties and other assets) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after following the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Zayo Group LLC)
General Indemnification. The Corporation (a) TMS shall indemnify, hold harmless and defend the Buyer and hold each InvestorParent, and their respective, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliatesmanagers, employees, agentsshareholders, consultants, representativesassigns, successors and assigns affiliates (each an collectively, the "Investor EntityBuyer's Indemnified Parties") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses Damages suffered by the Buyer's Indemnified Parties (i) arising out of a breach or inaccuracy of or failure to comply with any representation, warranty or covenant made by TMS in this Agreement which survives the Closing Date as defined specified in Section 11.2 and not subject to any Deductible or Limit10.11 hereof, (ii) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to resulting from or based upon any WFI Entity being or having been an ERISA Affiliate with any other Person (Liabilities other than another WFI Entity)the Assumed Liabilities, whether such Losses arise (iii) arising out of or relate resulting from TMS' and its representatives' use of the Purchased Assets after the Closing Date, or (iv) arising out of or resulting from or based upon the Retained Assets.
(b) The Buyer and the Parent, jointly and severally, covenant and agree to indemnify, hold harmless and defend TMS, its officers, managers, employees, shareholders, assigns, successors and affiliates (collectively, the "Seller's Indemnified Parties") from and against any event and all Damages suffered by the Seller's Indemnified Parties (i) arising out of a breach or state inaccuracy of facts occurring or existing beforefailure to comply with any representation, warranty or covenant made by the Buyer or the Parent in this Agreement which survives the Closing Date as specified in Section 10.11 hereof, (ii) by reason of any failure of the Buyer or the Parent to pay, honor, perform or otherwise discharge the Assumed Liabilities on and after the Closing Date, or (iii) arising out of or resulting from the Buyer or the Parent's use of or operation of the Business related to the Purchased Assets on or after the Closing Balance Sheet Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (TMS Inc /Ok/), Asset Purchase Agreement (TMS Inc /Ok/)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach Subject to the other provisions of any of this Article 8, from and after the representationsClosing, warrantiesParent and the Companies, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, jointly and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointlyseverally, shall indemnify, defend and hold the Corporation, harmless Buyer and its affiliates, Affiliates (including Marcus) and each of their such Person’s respective successors, assigns, officers, directors, employees, members, partners, equity holders, representatives, fiduciaries, managers and agents (each a “Buyer Indemnitee”) from and against any and all Losses suffered or incurred as a result of or arising from or relating to (i) any breach of, or inaccuracy in, any representation or warranty made by any Company or Parent in Article 3 or in any certificate or Interim Liquor Agreement delivered by any Company or Parent pursuant to this Agreement (ignoring, for purposes of determining the existence of any such inaccuracy or breach or the amount of Losses with respect thereto, any “materiality,” “Material Adverse Effect” or similar qualifier set forth in such representation or warranty); (ii) any breach by any Company or Parent of any of its covenants or agreements contained herein; (iii) any Excluded Liability; and (iv) Fraud.
(b) Subject to the other provisions of this Article 8, from and after the Closing, Buyer and Marcus, jointly and severally, shall indemnify, defend and hold Parent and its Affiliates (including the Companies) and each of such Person’s respective officers, directors, employees, agents, consultants, representatives, successors and assigns agents (each a “Parent Indemnitee”) harmless against all Losses from any Loss suffered or incurred as a result of or arising from or relating to (i) any breach of any representation or warranty made by Buyer or Marcus in Article 4 of this Agreement (ignoring, for purposes of determining the existence of any such inaccuracy or breach or the amount of claims with respect thereto, any “materiality,” or similar qualifier set forth in such representation or warranty); (ii) any breach by Buyer or Marcus of any of its representations, warranties, covenants or agreements in this Agreement or in contained herein; and (iii) any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything Assumed Liability.
(c) The obligations to the contrary in this Agreement, no indemnification payment by the Corporation indemnify and hold harmless pursuant to this Section 11 8.2 shall survive the consummation of the transactions contemplated hereby for the applicable period set forth in Section 8.1 and shall then expire, except that claims for indemnification with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject written notice to the Deductible or Limit) shall be payable (a) until applicable Responsible Party was provided by the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only applicable Indemnified Party prior to the extent that end of such Lossesapplicable period, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Datesurvive until final resolution thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Marcus Corp)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything Subject to the contrary in provisions of this AgreementArticle VIII, no indemnification payment by the Corporation pursuant Seller hereby agrees to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless Buyer, the Companies (following the Closing) and all of Buyer’s Affiliates and each Investor Entity of their respective directors, officers, managers, partners, employees, agents, equity holders, successors and assigns (each, a “Buyer Indemnified Party” and, collectively, the “Buyer Indemnified Parties”), from and against any and all Losses (as defined in Section 11.2 and not subject to incurred or suffered by any Deductible Buyer Indemnified Party arising out of, based upon or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 resulting from any of the Code which may be incurred following:
(i) any breach of any representation or warranty contained in Article III or Article IV;
(ii) any breach by Seller or the Companies of, or any failure of Seller or the Companies to perform, any of them arising out the covenants, agreements or obligations contained in or made pursuant to this Agreement; and
(iii) all Taxes (or the nonpayment thereof) of (A) either Company or relating to Seller for all Pre-Closing Periods and Pre-Closing Partial Tax Periods and (B) any WFI Entity being or having been an ERISA Affiliate with and all Taxes of any other Person (other than another WFI Entity)the Companies) imposed on any Company as a transferee or successor, whether such Losses arise out of by Contract or pursuant to any Law, which Taxes relate to any an event or state transaction occurring before the Closing.
(b) Subject to the provisions of facts occurring this Article VIII, Buyer hereby agrees to indemnify, defend and hold harmless Seller and all of Seller’s Affiliates, from and against any and all Losses incurred or existing beforesuffered by Seller arising out of, on based upon or after resulting from any of the Closing Datefollowing:
(i) any breach or violation of any of the representations or warranties of the Buyer contained in this Agreement; and
(ii) any breach or violation of any of the covenants or agreements of Buyer contained in this Agreement.
Appears in 2 contracts
Sources: Rescission and Mutual Release Agreement (Life Clips, Inc.), Stock Purchase Agreement (Life Clips, Inc.)
General Indemnification. The Corporation (a) Subject to the other provisions of this Article VII, the Selling Parties shall jointly and severally indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitationPurchaser, the Documents, Company and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsAffiliates and agents (each a “Purchaser Indemnitee”) harmless from any damages, losses, liabilities, diminution in value, obligations, actions, proceedings, claims of any kind, interest, costs or expenses (including reasonable attorneys’ fees and accounting fees and related disbursements to experts, appraisers, consultants, representativeswitnesses, successors investigators and assigns harmless against all Losses arising from any other agents or representatives in the investigation or defense of a claim or in asserting, preserving, or enforcing an Indemnified Party’s rights hereunder) (each, a “Loss”) to the extent suffered or paid, directly or indirectly, as a result of:
(i) any breach of any of its representationsrepresentation or warranty made by the Company, warranties▇▇▇▇▇ ▇▇, covenants any Stockholder or agreements any LLC Member (A) contained in this Agreement or (B) in any certificate delivered by the Company or any Selling Party to Purchaser at Closing;
(ii) any breach of any covenant or agreement of the Company, ▇▇▇▇▇ ▇▇ or any Selling Party contained in this Agreement requiring performance at or prior to Closing;
(iii) any Indebtedness not taken into account in determining the Purchase Price;
(iv) [*****];
(v) Any of the transactions between the Company or ▇▇▇▇▇ ▇▇ on the one hand, and any of the Selling Parties or any of their respective Affiliates, on the other instrument delivered pursuant heretohand, includingthat are identified on Section 7.02(a)(v) of the Company Disclosure Schedule, without limitation, but only so long as Purchaser demands indemnification therefor on or prior to the Documents. Notwithstanding [*****]; provided further that notwithstanding anything to the contrary in this Agreement, no any claim for indemnification by reason of such transactions identified on Section 7.02(a)(v) of the Company Disclosure Schedule may only be brought pursuant to and subject to the limitations set forth in this Section 7.02(a)(v);
(vi) (A) Taxes (or the non-payment thereof) of any Company Entity for all Pre-Closing Tax Periods, (B) Taxes of any member of an affiliated, consolidated, combined or unitary group of which any Company Entity (or any predecessor of any of the foregoing) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulations §1.1502-6 or any analogous or similar state, local or non-U.S. Applicable Law, and (C) any and all Taxes of a Person (other than a Company Entity) imposed on the Purchaser or a Company Entity as a transferee or successor, by contract or pursuant to any Applicable Law, which Taxes arose in a Pre-Closing Tax Period or relate to an event or transaction occurring before the Closing;
(vii) any liability or claim under any Environmental Laws relating to any event, action or failure to act which occurred prior to the Closing Date (whether or not such Loss arises from or relates to a breach of any representation or warranty of the Company, ▇▇▇▇▇ ▇▇, any Stockholder or any LLC Member in this Agreement);
(viii) any liability or claim arising from or relating to the Employment Entity, the prior employment of any of the Company’s employees by the Corporation pursuant Employment Entity, or any transaction or liability involving the Employment Entity or to which it is or was a party; or
(ix) any liability or claim arising from or relating to the automobile leases for the automobiles leased by the Company and used by ▇▇. ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇.
(b) Subject to the other provisions of this Section 11 with respect Article VII, each of Purchaser and the Company agrees to indemnify, defend and hold the Stockholders, the LLC Members and their respective Affiliates, officers, directors, employees and agents (each, a “Company Indemnitee”) harmless from any Losses otherwise payable hereunder Loss suffered or paid, directly or indirectly as a result of, in connection with, or arising out of a (i) any breach of its representations and warranties any representation or warranty made by Purchaser (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants A) contained in this Agreement or (B) in any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject certificate delivered to the Deductible Representative pursuant to this Agreement, (ii) any breach by Purchaser of any of the covenants or Limitagreements contained herein, (iii) any breach by the Company or ▇▇▇▇▇ ▇▇ of any of its covenants or agreements contained herein which are to be performed by the Company or ▇▇▇▇▇ ▇▇ after the Closing Date, (iv) Taxes (or the non-payment thereof) of any Company Entity for all tax periods following the Closing; and (v) any liability or claim under any Environmental Laws relating to any Release which occurred following the Closing Date.
(c) The obligations to indemnify and hold harmless pursuant this Section 7.02 shall be payable survive the consummation of the transactions contemplated hereby for the applicable period set forth in Section 7.01, except for any claim for indemnification asserted in writing, stating in reasonable detail the basis of such claim prior to the end of such applicable period (a) which claims shall survive until the time as such Losses shall aggregate final resolution thereof).
(on a cumulative basis and not on a per item basisd) for For all Investor Entities more than US$5,000,000 (the "Deductible")Tax purposes, and then only to the extent that such Lossespermitted under Applicable Law, in each of the aggregate for all InvestorsStockholders, exceed the Deductible; or (b) with respect LLC Members, Purchaser and their respective Affiliates agrees to treat any indemnity payment under this Agreement as an adjustment to the Investor Entities associated with each InvestorPurchase Price, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses unless a final determination (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 1313 of the Code which may Code) provides otherwise.
(e) For purposes of determining the amount of any Loss arising from any breach or inaccuracy in any representation or warranty, all references to the terms “material”, “materially”, “materiality” and “Material Adverse Effect”, or any similar terms, shall be incurred by any ignored.
(f) For purposes of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity)this Agreement, whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after “Specified Representations” means the Closing Date.representations and warranties set forth in [*****]
Appears in 2 contracts
Sources: Stock and LLC Purchase Agreement, Stock and LLC Interest Purchase Agreement (Innophos Holdings, Inc.)
General Indemnification. The Corporation shall (a) If the transactions contemplated hereby to occur at the Closing are effected and subject to the provisions of Sections 10.01(b) and 10.03(b), Sellers (in such capacity, the "Seller Indemnifying Parties") agree, jointly and severally, to indemnify, defend and hold each Investorharmless the Buyer Parties, its affiliates, their Affiliates and each of their respective officersRepresentatives (collectively, directorsthe "Buyer Indemnified Parties"), partnersagainst any demands, managing directorscauses of action, affiliatesassessments, employeeslosses, agentsdamages, consultantsliabilities, representativescosts and expenses and judgments (including interest, successors fines and assigns penalties and reasonable attorneys' fees incurred in connection therewith), including those resulting from any Action (each an collectively, "Investor EntityLosses") harmless from and against all that such Buyer Indemnified Party shall actually incur, to the extent that such Losses or Actions:
(as defined belowi) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising arise out of, relating to, result from or resulting from (a) are based upon any breach of any representation or warranty made herein in Article III (other than the representations and warranties relating to Environmental Laws and Authorizations thereunder or Hazardous Substances); provided that for purposes of this Section 10.02(a)(i), whether there has occurred a breach by any Seller of any representation or warranty which is qualified by materiality (i.e., "material," "material adverse effect," "Material Adverse Effect" or similar phrases) shall be determined as if such representation or warranty were made without such qualification;
(ii) arise out of, result from or are based upon any breach of any covenant or agreement made herein for the benefit of the representationsBuyer Indemnified Parties; provided that for purposes of this 10.02(a)(ii), warrantieswhether there has occurred a breach by any Seller of any covenant or agreement which is qualified by materiality (i.e., covenants "material," "material adverse effect," "Material Adverse Effect" or agreements similar phrases) shall be determined as if such covenant or agreement were made by it without such qualification; or
(iii) arise out of, result from or are based upon any Excluded Liability or any breach of Sellers' representations and warranties contained in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and Section 3.17.
(b) any third party claim made against an Investor Entity relating If the transactions contemplated hereby to any transaction by occur at the Corporation financed Closing are effected and subject to the provisions of Sections 10.01(b) and 10.03(b), the Buyer Parties (in whole or in partsuch capacity, directly or indirectlythe "Buyer Indemnifying Parties" and together with the Seller Indemnifying Parties, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor"Indemnifying Parties") agree, severally jointly and not jointlyseverally, shall to indemnify, defend and hold the Corporationharmless Sellers, its affiliates, their Affiliates and each of their respective officersRepresentatives (collectively, directorsthe "Seller Indemnified Parties" and together with the Buyer Indemnified Parties, employeesthe "Indemnified Parties") against any Losses that such Seller Indemnified Parties shall actually incur, agentsto the extent that such Losses or Actions:
(i) arise out of, consultants, representatives, successors and assigns harmless against all Losses arising result from the or are based upon any breach of any representation or warranty made herein in Article IV; provided that for purposes of its representationsthis 10.02(b)(i), warrantieswhether there has occurred a breach by any Buyer Party of any representation or warranty which is qualified by materiality (i.e., covenants "material," "material adverse effect," "Material Adverse Effect" or agreements similar phrases) shall be determined as if such representation or warranty were made without such qualification;
(ii) arise out of, result from or are based upon any breach of any covenant or agreement made herein for the benefit of the Seller Indemnified Parties; provided that for purposes of this 10.02(b)(ii), whether there has occurred a breach by any Buyer Party of any covenant or agreement which is qualified by materiality (i.e., "material," "material adverse effect," "Material Adverse Effect" or similar phrases) shall be determined as if such covenant or agreement were made without such qualification; or
(iii) arise out of, result from or are based upon any Assumed Liability.
(c) Notwithstanding the foregoing, no Indemnifying Party shall have any liability to any Indemnified Party under (x) clauses (i) or (ii) of Section 10.02(a) or Section 10.02(b) or (y) in this Agreement the case of a Seller Indemnifying Party, under clause (iii) of Section 10.02(a) for any Loss relating to Environmental Laws and Authorizations thereunder or Hazardous Substances, unless and until the aggregate amount of all Recoverable Losses of all Buyer Indemnified Parties, in the case of a Seller Indemnifying Party, or of all Seller Indemnified Parties, in the case of a Buyer Indemnifying Party, exceeds $1,000,000 (the "Indemnity Threshold"), in which event only the amount of Recoverable Losses of all Buyer Indemnified Parties, in the case of a Seller Indemnifying Party, or of all Seller Indemnified Parties, in the case of a Buyer Indemnifying Party, in excess of the Indemnity Threshold shall be recoverable; provided, however, (i) with respect to Losses arising out of a breach of any certificate representation or other instrument delivered pursuant hereto, including, without limitationwarranty of a Seller set forth in Section 3.13 or any covenant of any Seller set forth in Section 7.03, the DocumentsIndemnity Threshold shall be $100,000 (the "Tax Indemnity Threshold"), and (ii) the Indemnity Threshold shall not apply with respect to Losses arising out of a breach of any covenant of any Seller set forth in Sections 5.05, 5.06 or 5.07 or a breach of any covenant of the Buyer Parties set forth in Section 6.03(a). The aggregate liability of each of (i) the Seller Indemnifying Parties (taken as a whole) under clause (i) and (ii) of Sections 10.02(a) or (ii) the Buyer Indemnifying Parties (taken as a whole) under clauses (i) and (ii) of Section 10.02(b) shall not exceed $5,000,000 in the aggregate (the "Maximum Indemnity Amount"). Notwithstanding the foregoing, the Maximum Indemnity Amount shall not apply with respect to Losses arising out of (x) a breach of any covenant of any Seller set forth in Sections 5.05, 5.06, 5.07 or 7.03 or a breach of any covenant of the Buyer Parties set forth in Section 6.03(a) or (y) any representation or warranty of any Seller set forth in Section 3.13.
(d) Notwithstanding anything to the contrary in this Agreement, no indemnification payment by a "Recoverable Loss" shall mean (i) any Loss under clauses (i) or (ii) of Section 10.02(a) or Section 10.02(b) arising out of any single act, omission, event or circumstance if such Loss exceeds $25,000 (and, if such a Loss is incurred, the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result entire amount of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) such Loss shall be payable a Recoverable Loss) and (aii) until the time any Loss under clause (iii) of Section 10.02(a) relating to Environmental Laws and Authorizations thereunder or Hazardous Substances; provided that no Loss which was taken into account as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess part of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation Adjustment shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Dateconstitute a Recoverable Loss.
Appears in 2 contracts
Sources: Purchase Agreement (Ico Inc), Purchase Agreement (Varco International Inc /De/)
General Indemnification. The Corporation (a) If, after the Closing Date, the Buyer (and following the Closing the Surviving Company and any of the Subsidiaries) and/or their officers, directors, employees, affiliates and/or agents (each a "Buyer Indemnitee" and together the "Buyer Indemnitees") suffer any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including reasonable attorneys' fees and expenses) ("Loss") as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by RGHI in this Agreement (whether or not contained in Article 3) or in any certificate delivered to the Buyer pursuant to Sections 6.2(a) and/or 6.2(b) to be true and correct in all respects as of the date of this Agreement or as of the Closing Date, provided that, solely for the purposes of this Section 8.2(a)(i), the failure of such representations and warranties to be true and correct as of the date of this Agreement or as of the Closing Date shall be determined without regard to any materiality or Material Adverse Effect qualifiers contained therein, (ii) any breach by RGHI of any of its covenants or agreements contained herein which are to be performed by RGHI on or before the Closing Date, (iii) any breach by RGHI of any of its covenants or agreements contained herein which are to be performed by RGHI after the Closing Date, (iv) any breach by the Company of any of its covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date, (v) any liabilities of or relating to any of the Asset Manager Entities or any Losses arising from or in connection with the sale or other disposition of the Asset Manager Entities or (vi) any Taxes owed by the Company or any Subsidiary with respect to any taxable periods ending on or prior to the Closing Date and the pre-Closing portion of all taxable periods beginning before and ending after the Closing Date, then, in any such case and subject to the other provisions of this Article 8, RGHI agrees to indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") Buyer Indemnitee harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateLoss.
Appears in 2 contracts
Sources: Equity Purchase and Merger Agreement (Refco Information Services, LLC), Equity Purchase and Merger Agreement (Refco Inc.)
General Indemnification. The Corporation (a) Subject to Section 7.1 of this Agreement, the Company and the Principal, jointly and severally, shall indemnify, indemnify and defend Buyer and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directorsofficers, affiliates, employees, agents, consultants, agents and representatives, successors and assigns (shall hold each an "Investor Entity") of them harmless from and against all Losses (as defined below) that are incurred or suffered by an Investor Entity any of them in connection with or resulting from:
(whether incurred i) any misrepresentation or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out breach of, relating toor inaccuracy in, any representation or resulting from warranty made by the Company in this Agreement, any Ancillary Agreement or any schedule or Disclosure Schedule furnished or to be furnished to Buyer in connection with or as contemplated by this Agreement;
(aii) any breach of any covenant made by the Company or the Principal in this Agreement, any Ancillary Agreement or any schedule or Disclosure Schedule furnished or to be furnished to Buyer in connection with or as contemplated by this Agreement; and
(iii) any Excluded Liability.
(b) Subject to Section 7.1 of this Agreement, Buyer shall indemnify the Company and the Principal and their directors, officers, affiliates, employees, agents and representatives, and shall hold each of them harmless from and against all Losses that are incurred or suffered by any of them in connection with or resulting from:
(i) any misrepresentation or breach of any representation or warranty made by Buyer in this Agreement, any Ancillary Agreement or any schedule furnished or to be furnished to the Company in connection with or as contemplated by this Agreement;
(ii) any breach of any covenant made by Buyer in this Agreement, any Ancillary Agreement or any schedule furnished or to be furnished to the Company in connection with or as contemplated by this Agreement; and
(iii) the Assumed Liabilities and liabilities related to Buyer’s operation and ownership of the representationsAcquired Assets arising after the Closing other than any Excluded Liability.
(c) Notwithstanding the foregoing, warranties(i) neither the Company nor the Principal shall be obligated to provide any such indemnification for Losses pursuant to claims under Section 7.2(a)(i) hereof, and (ii) Buyer shall not be obligated to provide any such indemnification for Losses pursuant to claims under Section 7.2(b)(i) hereof, unless the aggregate amount that the Company, the Principal or Buyer, as applicable, are entitled to recover in respect of all such claims exceeds $500,000.00 (the “Threshold”), in which case the Indemnitor will be liable only for the amount of such Losses in excess of the Threshold; provided, however, that the Threshold shall not apply to Losses arising in respect of claims for misrepresentations and breach of warranties relating to the first two sentences in Sections 3.1 and 4.1 hereof (Organization), Sections 3.2 and 4.2 hereof (Authority), or Section 3.8(a) (Title), all of which may be asserted without limitation. The maximum aggregate obligation of (i) the Company and/or the Principal hereunder for Losses pursuant to claims under Section 7.2(a)(i) and (ii) hereof and (ii) Buyer hereunder for Losses pursuant to claims under Section 7.2(b)(i) and (ii) hereof, shall not exceed $25,000,000.00 (the “Maximum”); provided, however, that the Maximum shall not apply to Losses arising in respect of claims for breach of covenants relating to Section 5.3 (Non-Compete) or agreements made by it to Buyer’s obligation to pay the Aggregate Purchase Price, all of which may be asserted without limitation. No limitation or condition of liability provided in this Agreement Article VII shall apply to any claim based on fraud.
(i) A party entitled to indemnification hereunder shall herein be referred to as an “Indemnitee.” A party obligated to indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.” As soon as is reasonable after an Indemnitee either (a) receives notice of any claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder (a “Third Party Claim”) or (b) sustains any Loss not involving a Third Party Claim or action which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under this Article VII, notify such Indemnitor in writing of such claim, action or Loss, as the case may be; provided, however, that, subject to Section 7.1, failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the extent Indemnitor is actually prejudiced in its defense of the action by such failure. Any such notification must be in writing and must state in reasonable detail the nature and basis of the claim, action or Loss, to the extent known. Except as provided in this Section 7.2, Indemnitor shall have the right using counsel reasonably acceptable to the Indemnitee, to contest, defend or litigate any such Third Party Claim; provided that the Indemnitor shall have notified the Indemnitee in writing of its intention to do so within fifteen (15) days of the Indemnitee having given notice of the Third Party Claim to the Indemnitor and such writing contains a statement that the Indemnitor reasonably believes in good faith that the Indemnitor has an obligation to provide indemnification under this Article VII with respect to such Third Party Claim (it being understood that such statement shall not prejudice Indemnitor’s right to later dispute its liability with respect to such Third Party Claim nor shall such statement or the fact that the Indemnitor assumed such defense of such Third Party Claim be admissible as evidence in any agreementaction between the Indemnitor and the Indemnitee); provided, certificate further, that the Indemnitor’s right to contest, defend or other instrument delivered pursuant hereto includinglitigate and right to continue to contest, without limitationdefend and litigate, any such Third Party Claim, is subject to the Documentscontinued satisfaction of the following conditions: (1) the Indemnitor shall diligently contest, defend or litigate in good faith any such Third Party Claim; and (2) the assumption by the Indemnitor of such Third Party Claim could not reasonably be expected to cause a material adverse effect on the Indemnitee’s business. The Indemnitee shall have the right to participate in, and to be represented by counsel (at its own expense) in any such contest, defense or litigation conducted by the Indemnitor.
(ii) The Indemnitor, if it shall have assumed the defense of any Third Party Claim as provided in this Agreement, (a) shall diligently contest, defend or litigate in good faith such Third Party Claim and (b) any third party claim made against an Investor Entity relating if the Indemnitor no longer reasonably believes in good faith that the Indemnitor is obligated to any transaction by indemnify Indemnitee under this Article VII with respect to such Third Party Claim, the Corporation financed in whole Indemnitor shall provide prompt written notice thereof to Indemnitee, at which time Indemnitor shall not be entitled, and shall lose its right to contest, defend or in partlitigate such Third Party Claim. The Indemnitor, directly or indirectly, with proceeds from if it shall have assumed the sale defense of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary Third Party Claim as provided in this Agreement, no indemnification payment by shall not consent to a settlement of, or the Corporation pursuant to this Section 11 with respect to entry of any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than judgment arising from, any Losses resulting from breaches such Third Party Claim without the prior written consent of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, Indemnitee (which consent shall not be subject unreasonably withheld or delayed). The Indemnitor shall not, without the prior written consent of the Indemnitee, enter into any compromise or settlement which commits the Indemnitee to take, or to forbear to take, any action or which does not provide for a complete release by such third party of the Indemnitee. All expenses (including attorneys’ fees) incurred by the Indemnitor in connection with the foregoing shall be paid by the Indemnitor. No failure by an Indemnitor to acknowledge in writing its indemnification obligations under this Article VII shall relieve it of such obligations to the Deductible extent such obligations exist.
(iii) If an Indemnitee is entitled to indemnification against a Third Party Claim and the Indemnitor fails to assume the defense of such Third Party Claim pursuant to Section 7.2(d)(i), or Limitthe Indemnitor loses its right to contest, defend or litigate a Third Party Claim pursuant to Section 7.2(d)(i) and (ii), then the Indemnitor shall not be payable entitled, and shall lose its right, to contest, defend, litigate and settle such Third Party Claim, and the Indemnitee shall have the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in good faith, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim either before or after the initiation of litigation, at such time and upon such terms as the Indemnitee deems fair and reasonable, provided that at least ten (a10) until days prior to any such settlement, written notice of its intention to settle is given to the time as Indemnitor; provided, further, that if the Indemnitee seeks to contest, defend or litigate such Losses Third Party Claim, it shall aggregate do so diligently and in good faith. The Indemnitor shall have the right to participate in (on a cumulative basis and but not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"control), and then only to the extent that be represented by counsel (at its expense) in any such Lossescontest, in the aggregate for all Investors, exceed the Deductible; defense or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased litigation conducted by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateIndemnitee.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Brickman Group LTD)
General Indemnification. The Corporation (a) Subject to the other terms of this Section 10.2, Section 10.3, Section 10.9, and the other limitations set forth herein, from and after the Closing, Seller shall indemnifyindemnify the Buyer Indemnified Parties, defend and save and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") them harmless from and against and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses (which any such Buyer Indemnified Party may suffer or become subject to as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out a result of, relating to, arising from or resulting from in connection with:
(ai) any misrepresentation or breach of any representation or warranty of the representations, warranties, covenants Company set forth in Article 7 or agreements made by it of Seller set forth in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale Article 6 of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and representation or warranty made in the certificate delivered by the Company pursuant to willful misrepresentation, fraud Section 2.10(a)(i);
(ii) any breach or deceit, which shall not be subject to non-fulfillment of any covenant of the Deductible Company under this Agreement or Limita breach or nonfulfillment by Seller of the covenants or agreements of Seller under this Agreement;
(iii) shall be payable Seller Taxes; and
(aiv) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item dollar-for-dollar basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Lossesnot paid by Seller pursuant to Section 2.7, in any Leakage for which Buyer was entitled to make a deduction to the aggregate for all Investors, exceed the Deductible; or Adjustment Amount pursuant to Section 2.3(a)(ii)(B).
(b) with respect From and after Closing, Buyer shall indemnify the Seller Indemnified Parties and save and hold each of them harmless from and against and pay on behalf of or reimburse such Seller Indemnified Parties for any Losses which any such Seller Indemnified Party may suffer or become subject to the Investor Entities associated with each Investoras a result of, arising from or in an aggregate amount connection with:
(i) any misrepresentation or breach of any representation or warranty set forth in excess Article 8 of the Purchase Price of the shares issued to such Investor this Agreement or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined any representation or warranty made in the Terms certificate delivered by Buyer pursuant to Section 2.10(b)(i); and
(ii) any breach or non-fulfillment of the Series A Non-Voting Preferred Shares, Series A in the Articles any covenant or agreement of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against Buyer under this Agreement or any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateRelated Agreement.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Civitas Resources, Inc.), Membership Interest Purchase Agreement (Civitas Resources, Inc.)
General Indemnification. The Corporation (a) Subject to the limitations set forth in this Article 9 and elsewhere in this Agreement, from and after the Closing, Sellers (severally in accordance with each Seller’s respective Pro Rata Percentage, and not jointly) shall indemnify, defend and hold Purchaser, the Company, each Investor, its affiliatesof their Affiliates, and each of their respective officers, directors, managers, partners, managing directorsmembers, affiliatesemployees and agents (each, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity"a “Purchaser Indemnitee”) harmless from any and against all Losses judgments, claims, amounts paid in settlement, damages, fines, penalties, deficiencies, losses, liabilities, obligations, claims of any kind, Taxes, costs or expenses (as defined belowincluding interest, court costs, reasonable fees of attorneys, accountants and other experts or other reasonable out-of-pocket expenses) (each, a “Loss”) incurred or suffered by an Investor Entity as a result of (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (ai) any breach as of any representation or warranty made by the Company or the Sellers contained Article 3 or Article 4 or in any certificate delivered hereunder, (ii) any breach by the Sellers of any of the representations, warranties, their covenants or agreements made by it in this Agreement contained herein or in any agreement, certificate delivered hereunder and (iii) any breach by the Company of any covenants or other instrument agreements contained herein or in any certificate delivered pursuant hereto including, without limitation, the Documents, and hereunder required to be performed prior to Closing.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by the Corporation financed limitations set for in whole or this Article 9 and elsewhere in partthis Agreement, directly or indirectlyfrom and after the Closing, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, Purchaser shall indemnify, defend and hold the CorporationSellers, its affiliateseach of their Affiliates, and each of their respective officers, directors, employeesmanagers, agentspartners, consultantsmembers, representativesemployees and agents (each a “Seller Indemnitee” and together with the Purchaser Indemnitee, successors and assigns the “Indemnitees”) harmless against all Losses arising from the any Loss incurred as a result of (i) any breach as of any of its representations, warranties, covenants representation or agreements in this Agreement warranty made by Purchaser contained Article 5 or in any certificate delivered hereunder, (ii) any breach by Purchaser of any of their covenants or other instrument agreements contained herein or in any certificate delivered pursuant heretohereunder, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment and (iii) any breach by the Corporation Company of any covenants or agreements contained herein or in any certificate delivered hereunder required to be performed after the Closing.
(c) The obligations to indemnify and hold harmless pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches 9.2 shall survive the consummation of the representations and warranties transactions contemplated hereby for the applicable period set forth in Section 2.79.1, and no claim for indemnification hereunder may be made after the expiration of the applicable survival period; provided that if a proper Notice of Claim is delivered by Purchaser or the Sellers’ Representative, as they relate to Taxesapplicable, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject prior to the Deductible or Limitend of such applicable survival period, then the claim(s) specified therein shall be payable (a) survive until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Datefinal resolution thereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Better Choice Co Inc.), Stock Purchase Agreement (Better Choice Co Inc.)
General Indemnification. The Corporation (a) Cannabist and CC VA, on a joint and several basis (and the Members other than CC VA, on a several basis, solely to the extent the amount due to such Members under the Promissory Note is reduced pursuant to Section 6.5(e)), shall indemnify, defend indemnify the Buyer Indemnified Parties and save and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") them harmless from and against against, and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses (which any such Buyer Indemnified Party may suffer, sustain or become subject to as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out a result of, relating toarising from, in connection with, by virtue of or resulting from related to (ai) any breach or inaccuracy of any of the representations, warranties, covenants representation or agreements warranty made by it the Cannabist, the Company or the Members in this Agreement or in any agreementAgreement, certificate or other instrument delivered pursuant hereto includingincluding Article III, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate furnished by or on behalf of the Company or the Members pursuant to this Agreement, (ii) any breach or non-fulfillment of any covenant, agreement or other instrument delivered pursuant hereto, including, without limitationprovision by Cannabist, the DocumentsCompany or the Members under this Agreement, (iii) any Transaction Expenses to the extent not included in Final Transaction Expenses, (iv) any Transaction Payments to the extent not included in Final Transaction Payments, (v) any Indebtedness to the extent not included in Final Indebtedness, (vi) any Buyer Tax Losses, (vii) any information, calculation or determination set forth in the Funds Flow or instructions provided by Cannabist or the Company with respect to the allocation, payment or issuance of the Closing Cash Payment, amounts due under the Promissory Note or Final Parent Stock Price or any alleged inaccuracy, discrepancy or impropriety with respect to any of the foregoing, (viii) Cannabist’s or its Affiliates Indebtedness, including the Notes, and (ix) the Master Lease Agreement, to the extent not assigned to the Company pursuant to Section 2.5(b)(xx). Notwithstanding anything herein to the contrary, for purposes of determining whether there has been a breach or inaccuracy of any representation or warranty and determining the amount of any Losses that are the subject matter of any indemnification claim hereunder, each representation and warranty in this Agreement shall be read without giving effect to any qualification or limitation as to materiality, Material Adverse Effect or words of similar import contained in any such representation or warranty. Buyer and Parent, on a joint and several basis, shall indemnify the Members and save and hold the Members harmless from and against, and pay on behalf of or reimburse the Members for any and all Losses which the Members may suffer, sustain or become subject to as a result of, arising from, in connection with, by virtue of or related to (A) any breach or inaccuracy of any representation or warranty made by Buyer or Parent in this Agreement, including Article IV, or in any certificate furnished by or on behalf of Buyer or Parent pursuant to this Agreement, and (B) any breach or non-fulfillment of any covenant, agreement or other provision by Buyer or Parent under this Agreement.
(b) Cannabist and CC VA shall not be liable to the Buyer Indemnified Parties for any Loss (i) pursuant to Section 6.2(a)(i) (other than with respect to the Fundamental Representations) until the aggregate amount of all Losses that Cannabist and CC VA would, but for this clause (i), be liable for exceeds $100,000 in the aggregate (the “Basket Amount”); provided, however, that Cannabist and CC VA shall then be liable for the full amount of such Losses back to dollar one; (ii) to the extent the aggregate amount of all Losses previously indemnified by Cannabist and CC VA pursuant to Section 6.2(a)(i) (other than with respect to Fundamental Representations) exceeds $35,000,000 (the “Cap”); or (iii) to the extent the aggregate amount of all Losses previously indemnified by Cannabist and CC VA pursuant to Section 6.2(a)(i) (including with respect to Fundamental Representations) exceeds $125,000,000. Buyer and Parent shall not be liable to the Members for any Loss (A) pursuant to Section 6.2(a)(A) until the aggregate amount of all Losses that the Buyer and Parent would, but for this clause (A), be liable for exceeds the Basket Amount; provided, however, that Buyer and Parent shall then be liable for the full amount of such Losses back to dollar one; or (B) to the extent the aggregate amount of all Losses previously indemnified by Buyer or Parent pursuant to Section 6.2(a)(A) exceeds the Cap. Notwithstanding anything to the contrary in this Agreementcontained herein, no indemnification payment by the Corporation pursuant to this Section 11 Basket Amount and the Cap shall not apply with respect to any Loss arising from (and such Loss shall not be counted toward the Cap) fraud or intentional misrepresentation.
(c) Any Losses otherwise payable hereunder for which the Buyer Indemnified Parties are entitled to indemnification pursuant to Section 6.2(a) shall be satisfied pursuant to Section 6.2(e).
(d) No Party shall be entitled to a rescission of this Agreement (or any related agreements).
(e) Any payment to be made by Cannabist or CC VA with respect to any indemnification obligations for Losses pursuant to this Article VI shall be satisfied, in Buyer’s sole discretion, (i) by deducting such amount from the amount due to the Members, on a several basis, under the Promissory Note in the order of interest due and owing and then in the order of maturities, (ii) directly against Cannabist and CC VA on a joint and several basis, or (iii) by any combination of the foregoing. Any payments to be made by any Party pursuant to Article VI shall be paid by wire transfer of immediately available funds within five calendar days after the determination of such payment obligation. Notwithstanding anything contained herein to the contrary, each Member acknowledges and agrees that in the event Buyer deducts Losses from the Promissory Note, each Member shall receive less than the amount such Member would have received of its Pro Rate Share of the Final Promissory Note Amount.
(f) The amount of any Loss for which indemnification is provided under this Article VI shall be net of any amounts actually received by the indemnified Party as a result of such Loss under insurance policies or other third party sources of reimbursement or indemnification (with such amount, for the avoidance of doubt, reduced by any fees or expenses (including any payment with respect to attorneys’ fees and disbursements and/or any increase in insurance premiums) incurred in obtaining such recovery; provided, however, that in no event shall any indemnified Party be required to seek any recovery under any insurance policy or otherwise as a condition to receiving indemnification under this Article VI.
(g) No Party shall be entitled to double recovery for any adjustments to consideration provided for hereunder or for any indemnifiable Losses even though such Losses, or any other incident, may have result from the breach of its representations and warranties (other more than any Losses resulting from breaches one of the representations representations, warranties and warranties in Section 2.7covenants, as they relate to Taxesor any other indemnity, Sections 2.26 and 2.27, to any covenants contained in under this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limitrelated agreement.
(h) All indemnification payments under this Agreement shall be payable (a) until the time treated as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only adjustments to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors for all relevant Tax purposes.
(i) The procedure for indemnification shall be as set forth in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend this Section 6.2 and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date6.4.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Cannabist Co Holdings Inc.), Equity Purchase Agreement (Verano Holdings Corp.)
General Indemnification. The Corporation shall (a) After the Closing, subject to Sections 12.6(a) and 13.12 hereof, ▇▇▇▇-▇▇▇▇▇▇ and ▇▇▇▇▇ Fargo, jointly and severally, will indemnify, defend and hold each Investorharmless the Newco Parties from and against any and all Indemnifiable Losses to the extent relating to, its affiliates, and each resulting from or arising out of any breach by ▇▇▇▇-▇▇▇▇▇▇ or ▇▇▇▇▇ Fargo of any of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made contained in Article IV (except for Section 4.20, which indemnity shall be governed exclusively by it in this Agreement Section 12.1 hereof; Section 4.13, which indemnity shall be governed exclusively by Section 12.4; and any breach of a representation or in any agreementwarranty by ▇▇▇▇-▇▇▇▇▇▇ or ▇▇▇▇▇ Fargo relating to WF Accounts Receivable, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, which indemnity shall be governed exclusively by Section 12.2) and Article VIII hereof.
(b) any third party claim made against an Investor Entity relating After the Closing, subject to any transaction by Sections 12.6(b) and 13.12 hereof, the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall Loomis Stockholders Trust will indemnify, defend and hold harmless the CorporationNewco Parties from and against any and all Indemnifiable Losses to the extent relating to, its affiliatesresulting from or arising out of any breach by Loomis, and each ▇▇▇▇▇▇ Armored, or the Loomis Stockholders Trust of any of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceitArticles V (except for Section 5.22, which shall not be subject to the Deductible or Limit) indemnity shall be payable (a) until the time as such Losses governed exclusively by Section 12.1 hereof; and Section 5.14, which indemnity shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"be governed exclusively by Section 12.4), Article VI and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateArticle VIII hereof.
Appears in 2 contracts
Sources: Contribution Agreement (Borg Warner Security Corp), Contribution Agreement (Loomis Fargo & Co)
General Indemnification. The Corporation shall indemnify(a) Subject to the other provisions of this Article VII, defend from and hold each Investorafter the Closing, Purchaser and its affiliates, Affiliates and each of their respective officers, directors, partnersequityholders, managing directorsmembers, affiliatesmanagers, employees, agents, consultantspartners, representatives, successors successors, permitted assigns and assigns agents (each an "Investor Entity"a “Purchaser Indemnitee”) shall be indemnified and held harmless from any damages, losses, liabilities, obligations, awards, judgments, payments, costs and against all Losses claims of any kind, interest and expenses (including reasonable attorneys’ fees and expenses and excluding punitive damages, except to the extent actually recovered by a third party in a Third Party Claim) (“Losses”) to the extent actually incurred as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out a result of, relating toin connection with, or resulting from related to (ai) any breach of any representation or warranty made by the Company or Seller contained in Article III or Article IV (other than the Fundamental Representations and the representations and warranties set forth in Section 3.15), (ii) any breach by the Company or Seller of any Fundamental Representations or the representationsrepresentations and warranties set forth in Section 3.15, warranties, (iii) any breach by Seller of any of its covenants or agreements made contained herein which are to be performed by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, Seller and (iv) Indemnified Taxes.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by the Corporation financed in whole or in partother provisions of this Article VII, directly or indirectlyfrom and after the Closing, with proceeds from Purchaser shall, and shall cause the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each InvestorCompany and its Subsidiary to, severally and not jointly, shall indemnify, defend and hold the Corporation, Seller and its affiliates, Affiliates and each of their respective officers, directors, equityholders, members, managers, employees, agents, consultantspartners, representatives, successors successors, permitted assigns and assigns agents (each, a “Seller Indemnitee”) harmless against all from any Losses arising from to the extent actually incurred as a result of, in connection with, or related to (i) any breach of any representation or warranty made by Purchaser contained in Article V, (ii) any breach by Purchaser of any of its representations, warranties, covenants or agreements contained herein which are to be performed by Purchaser and (iii) any breach by the Company of any of its covenants or agreements contained herein which are to be performed by the Company.
(c) If any Purchaser Indemnitee or Seller Indemnitee believes that it has sustained or incurred any Loss for which it may be entitled to indemnification, subject to the limitations set forth in this Agreement Article VII, such Purchaser Indemnitee or in Purchaser (on behalf of such Purchaser Indemnitee) or such Seller Indemnitee or Seller (on behalf of such Seller Indemnitee) will so notify Seller or Purchaser, as applicable, promptly by delivering to such party a Notice of Claim specifying the basis hereunder upon which such claim for indemnification is asserted and describing such Loss, the amount thereof, if known, or a good faith estimate of the amount, and the method of computation of such Loss, all with reasonable particularity. After the giving of any certificate or other instrument delivered Notice of Claim pursuant hereto, including, without limitation, the Documentsamount of indemnification to which such Purchaser Indemnitee or Seller Indemnitee will be entitled under this Article VII will be determined by (i) a Final Determination or (ii) any other means to which Purchaser and Seller agree in writing. Notwithstanding anything A failure by a Purchaser Indemnitee or Seller Indemnitee to give timely notice as provided in this Article VII will not affect the rights or obligations of any party hereunder except to the contrary in this Agreementextent that, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of such failure, any party entitled to receive such notice was actually damaged or prejudiced as a breach result of such failure to give timely notice vis-à-vis its representations rights and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement obligations hereunder or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Dateotherwise.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Hub Group, Inc.)
General Indemnification. The Corporation (a) Subject to the other provisions of this Article VI, from and after the Closing, Parent shall indemnify, defend and hold harmless Purchaser and its Affiliates (which after the Closing shall include each Investor, its affiliates, Acquired Company) and each of their such Person’s respective officers, directors, managers, members, partners, managing directors, affiliatesequityholders, employees, representatives, agents, consultants, representatives, successors and assigns (each an "Investor Entity"a “Purchaser Indemnitee”) harmless from and against against, and pay on behalf of and reimburse each Purchaser Indemnitee in respect of, any and all Losses (as defined below) incurred that such Purchaser Indemnitee may incur, suffer, sustain or suffered by an Investor Entity (whether incurred become subject to arising out, resulting from or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from : (ai) any breach of or inaccuracy in any of the representations, warranties, covenants representation or agreements warranty made by it Parent in Article III; (ii) any non-fulfillment or breach of any covenant or agreement set forth in this Agreement made by or to be performed by Parent; and (iii) any Indebtedness of the Acquired Companies (other than Indebtedness under clause (iv) of the definition of Indebtedness) that is not satisfied in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, full at the Documents, and Closing.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by the Corporation financed in whole or in partother provisions of this Article VI, directly or indirectlyfrom and after the Closing, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, Purchaser shall indemnify, defend and hold the Corporation, harmless Parent and its affiliates, Affiliates and each of their such Person’s respective officers, directors, managers, members, partners, equityholders, employees, representatives, agents, consultants, representatives, successors and assigns harmless against (each a “Parent Indemnitee”) from and against, and pay on behalf of and reimburse each Parent Indemnitee in respect of, any and all Losses that such Parent Indemnitee may incur, suffer, sustain or become subject to arising from the out of or resulting from: (i) any breach of or inaccuracy in any representation or warranty made by Purchaser in Article IV; (ii) any non-fulfillment or breach of any of its representations, warranties, covenants covenant or agreements agreement set forth in this Agreement made by or in to be performed by Purchaser and (iii) any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses Taxes resulting from breaches an actual or deemed election under Section 338 of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) Code with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased transactions contemplated by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Datethis Agreement.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Neutral Tandem Inc), Equity Purchase Agreement (Global Telecom & Technology, Inc.)
General Indemnification. The Corporation shall indemnification required under any subsection of this Section 6.3 is in addition to the indemnification required under any other subsection of this Section 6.3 and to any rights to indemnification elsewhere provided for in this Agreement.
(A) Seller hereby agrees to indemnify, defend and hold each Investor, Purchaser and its affiliates, Affiliates (and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsagents and representatives) harmless from and against and in respect of, consultantsand shall on demand pay or reimburse Purchaser and its Affiliates (and their respective officers, directors, employees, agents and representatives) for any and all Damages, successors and assigns harmless against all Losses whether or not involving a Third Party Claim:
(1) based upon or arising from out of the breach of any representation or warranty or the non-performance, partial or total, of its representations, warranties, covenants any covenant or agreements agreement of Seller contained in this Agreement Agreement;
(2) based upon or in arising out of the items of litigation (and the facts underlying such litigation) which are identified on Schedule 3.5(B); and
(3) based upon or arising with respect to the compensation and employee benefits due, prior to the Closing Date, to any certificate or other instrument delivered pursuant heretoemployee of the Seller who provided services to the Company, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreementany amounts for salary, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations wages and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible")incentive compensation, and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; any liabilities arising directly or indirectly from any employee benefit plan (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in Section 3(3) of ERISA) maintained, or contributed to, by the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date Seller.
(B) Purchaser hereby agrees to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold Seller and its Affiliates (and its officers, directors, employees, agents and representatives of each) harmless each Investor Entity from and against and in respect of, and shall on demand pay or reimburse Seller and its Affiliates (and its officers, directors, employees, agents and other representatives) for any and all Losses (as defined in Section 11.2 and Damages whether or not subject to any Deductible involving a Third Party Claim, based upon or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of the breach of any representation or relating to warranty or the non-performance, partial or total, of any WFI Entity being covenant or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out agreement of or relate to any event or state of facts occurring or existing before, on or after the Closing DatePurchaser contained in this Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Procentury Corp), Share Purchase Agreement (Procentury Corp)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of If, after the representationsClosing Date, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, C Media and/or its Affiliates and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally its and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsequityholders, consultantsoperating partners, partners, managers, representatives, and/or agents and their heirs, successors and permitted assigns harmless against all (each a “C Media Indemnitee” and together the “C Media Indemnitees”) suffer, without any duplication, any Losses as a result of, in connection with, or arising from the out of (i) any inaccuracy or breach of any of its representations, warranties, covenants representation or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment warranty made by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants Kingtone contained in this Agreement or any other Document and certificate delivered hereto, (ii) any failure by Kingtone to willful misrepresentationperform any of Kingtone’s covenants or agreements contained herein, fraud or deceit(iii) the Excluded Liabilities, which shall not be then, subject to the Deductible other provisions of this Article10, Kingtone shall indemnify, defend and save and hold harmless the C Media Indemnitees for such Loss as and when suffered or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible")paid, and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; whether directly or indirectly.
(b) with respect After the Closing, C Media agrees to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold Kingtone and/or its Affiliates and their respective officers, directors, employees, equityholders, operating partners, partners, managers, representatives, and/or agents and their heirs, successors and permitted assigns (each a “Kingtone Indemnitee” and together the “Kingtone Indemnitees”) harmless each Investor Entity against from any Loss as and all Losses (when suffered or paid, directly or indirectly, as defined a result of, in Section 11.2 and not subject to any Deductible connection with, or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of (i) any inaccuracy or relating breach of any representation or warranty made by C Media contained in this Agreement or any certificate delivered hereto, (ii) any failure by C Media to perform any of C Media’s covenants or agreements contained herein, or (iii) the Excluded Liabilities, then, subject to the other provisions of this Article10, Kingtone shall indemnify, defend and save and hold harmless the Kingtone Indemnitees for such Loss as and when suffered or paid, whether directly or indirectly.
(c) The obligations to indemnify and hold harmless pursuant to Sections 10.3(a) and (b) shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 10.1, except for claims for indemnification pursuant to any WFI Entity being such clauses asserted prior to the end of such survival period, which such claims shall survive until final resolution thereof.
(d) For purposes of determining whether any breach or having been an ERISA Affiliate with inaccuracy of any other Person (other than another WFI Entity)representation or warranty has occurred pursuant to this Agreement, whether any Loss has occurred, or the amount of any such Losses arise out Loss, the representations, warranties, covenants and agreements of or relate the Parties set forth in this Agreement and the Transaction Documents will be considered without regard to any event materiality or state of facts occurring or existing before, on or after the Closing DateMaterial Adverse Effect qualification set forth.
Appears in 2 contracts
Sources: Asset Exchange Agreement (Kingtone Wirelessinfo Solution Holding LTD), Asset Exchange Agreement (Kingtone Wirelessinfo Solution Holding LTD)
General Indemnification. The Corporation (a) Cannabist and each Member, on a joint and several basis, shall indemnify, defend indemnify the Buyer Indemnified Parties and save and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") them harmless from and against against, and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses (which any such Buyer Indemnified Party may suffer, sustain or become subject to as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out a result of, relating toarising from, in connection with, by virtue of or resulting from related to (ai) any breach or inaccuracy of any of the representations, warranties, covenants representation or agreements warranty made by it the Cannabist, the Company or the Members in this Agreement or in any agreementAgreement, certificate or other instrument delivered pursuant hereto includingincluding Article III, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate furnished by or on behalf of the Company or the Members pursuant to this Agreement, (ii) any breach or non-fulfillment of any covenant, agreement or other instrument delivered pursuant hereto, including, without limitationprovision by Cannabist, the DocumentsCompany or the Members under this Agreement, (iii) any Transaction Expenses to the extent not included in Final Transaction Expenses, (iv) any Transaction Payments to the extent not included in Final Transaction Payments, (v) any Indebtedness to the extent not included in Final Indebtedness, (vi) any Buyer Tax Losses, (vii) any information, calculation or determination set forth in the Funds Flow or instructions provided by Cannabist or the Company with respect to the payment of the Deposit, Purchase Price or any alleged inaccuracy, discrepancy or impropriety with respect to any of the foregoing, (viii) Cannabist’s or its Affiliates Indebtedness, including the Notes, (ix) the Master Lease Agreement, to the extent not assigned to the Company pursuant to Section 2.5(b)(xx), and (x) Losses actually incurred and resulting from the claims set forth on Schedule 3.11. Notwithstanding anything herein to the contrary, for purposes of determining whether there has been a breach or inaccuracy of any representation or warranty and determining the amount of any Losses that are the subject matter of any indemnification claim hereunder, each representation and warranty in this Agreement shall be read without giving effect to any qualification or limitation as to materiality, Material Adverse Effect or words of similar import contained in any such representation or warranty. Buyer shall indemnify the Members and save and hold the Members harmless from and against, and pay on behalf of or reimburse the Members for any and all Losses which the Members may suffer, sustain or become subject to as a result of, arising from, in connection with, by virtue of or related to (A) any breach or inaccuracy of any representation or warranty made by Buyer in this Agreement, including Article IV, or in any certificate furnished by or on behalf of Buyer pursuant to this Agreement, and (B) any breach or non-fulfillment of any covenant, agreement or other provision by Buyer under this Agreement.
(b) Cannabist and the Members shall not be liable to the Buyer Indemnified Parties for any Loss (i) pursuant to Section 6.2(a)(i) (other than with respect to the Fundamental Representations) until the aggregate amount of all Losses that Cannabist and the Members would, but for this clause (i), be liable for exceeds $10,000 in the aggregate (the “Basket Amount”); provided, however, that Cannabist and the Members shall then be liable for the full amount of such Losses back to dollar one; or (ii) to the extent the aggregate amount of all Losses previously indemnified by Cannabist and the Members pursuant to Section 6.2(a)(i) exceeds $6,120,481.20 (the “Cap”). Buyer shall not be liable to the Members for any Loss (A) pursuant to Section 6.2(a)(A) until the aggregate amount of all Losses that the Buyer would, but for this clause (A), be liable for exceeds the Basket Amount; provided, however, that Buyer shall then be liable for the full amount of such Losses back to dollar one; or (B) to the extent the aggregate amount of all Losses previously indemnified by Buyer pursuant to Section 6.2(a)(A) exceeds the Cap. Notwithstanding anything to the contrary in this Agreementcontained herein, no indemnification payment by the Corporation pursuant to this Section 11 Basket Amount and the Cap shall not apply with respect to any Loss arising from (and such Loss shall not be counted toward the Cap) fraud or intentional misrepresentation.
(c) Any Losses otherwise payable hereunder for which the Buyer Indemnified Parties are entitled to indemnification pursuant to Section 6.2(a) shall be satisfied pursuant to Section 6.2(e).
(d) No Party shall be entitled to a rescission of this Agreement (or any related agreements).
(e) Any payment to be made by Cannabist or any Member with respect to any indemnification obligations for Losses pursuant to this Article VI shall be satisfied, in Buyer’s sole discretion, (i) by deducting such amount from the amount due to CC VA under the Promissory Note in the order of interest due and owing and then in the order of maturities, (ii) directly against Cannabist and the Members on a joint and several basis, or (iii) by any combination of the foregoing. Any payments to be made by any Party pursuant to Article VI shall be paid by wire transfer of immediately available funds within five calendar days after the determination of such payment obligation.
(f) The amount of any Loss for which indemnification is provided under this Article VI shall be net of any amounts actually received by the indemnified Party as a result of such Loss under insurance policies or other third party sources of reimbursement or indemnification (with such amount, for the avoidance of doubt, reduced by any fees or expenses (including any payment with respect to attorneys’ fees and disbursements and/or any increase in insurance premiums) incurred in obtaining such recovery; provided, however, that in no event shall any indemnified Party be required to seek any recovery under any insurance policy or otherwise as a condition to receiving indemnification under this Article VI.
(g) No Party shall be entitled to double recovery for any adjustments to consideration provided for hereunder or for any indemnifiable Losses even though such Losses, or any other incident, may have result from the breach of its representations and warranties (other more than any Losses resulting from breaches one of the representations representations, warranties and warranties in Section 2.7covenants, as they relate to Taxesor any other indemnity, Sections 2.26 and 2.27, to any covenants contained in under this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limitrelated agreement.
(h) All indemnification payments under this Agreement shall be payable (a) until the time treated as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only adjustments to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors for all relevant Tax purposes.
(i) The procedure for indemnification shall be as set forth in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend this Section 6.2 and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date6.4.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Cannabist Co Holdings Inc.), Equity Purchase Agreement (Verano Holdings Corp.)
General Indemnification. The Corporation shall 9.1.1 Subject to Sections 9.2, 9.3 and 9.4, Sellers hereby agree to jointly and severally indemnify, defend and hold each InvestorPurchaser, its affiliates, the Companies and each of their respective officers, directors, partners, managing directors, affiliatesofficers, employees, Affiliates, agents, consultants, representatives, successors and assigns (each an collectively, the "Investor EntityPURCHASER INDEMNIFIED PARTIES") harmless from and against against:
9.1.1.1 any and all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out ofbased upon, relating to, attributable to or resulting from (a) the failure of any representation or warranty of Sellers set forth in Article 4, other than those set forth in Section 4.11, or any representation or warranty contained in any certificate delivered by or on behalf of Sellers pursuant to this Agreement, to be true and correct in all respects as of the date made and as of the Closing Date;
9.1.1.2 any and all Losses based upon, attributable to or resulting from the breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate covenant or other instrument delivered pursuant hereto includingagreement on the part of Sellers under this Agreement;
9.1.1.3 any Excluded Liability; and
9.1.1.4 any Pre-Closing Environmental Liability.
9.1.2 Subject to Section 9.2 and Section 9.4, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating Purchaser hereby agrees to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliatesSellers, and each of their respective officers, directors, employeesAffiliates, agents, consultants, representatives, successors and assigns harmless against from and against:
9.1.2.1 any and all Losses arising based upon, attributable to or resulting from the failure of any representation or warranty of Purchaser set forth in Article 5, or any representation or warranty contained in any certificate delivered by or on behalf of Purchaser pursuant to this Agreement, to be true and correct as of the date made and as of the Closing Date; and
9.1.2.2 any and all Losses based upon, attributable to or resulting from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate covenant or other instrument delivered pursuant hereto, including, without limitation, agreement on the Documents. Notwithstanding anything to the contrary in part of Purchaser under this Agreement, no indemnification payment by the Corporation pursuant to .
9.1.3 The provisions of this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations 9.1 and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate 9.5 shall not apply to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased governed by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms provisions of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date9.6.
Appears in 1 contract
Sources: Stock Purchase Agreement (Winfred Berg Licensco Inc)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of If, after the representationsClosing Date, warrantiesParent, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Surviving Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of and/or their respective officers, directors, employees, agentsAffiliates and/or agents (each a “Buyer Indemnitee” and together the “Buyer Indemnitees”) suffer any damages, consultantslosses, representativesliabilities, successors and assigns harmless against all Losses arising from the breach obligations, claims of any of its representationskind, warranties, covenants interest or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, expenses (including, without limitation, reasonable attorneys’ fees and expenses) (“Loss”), as a result of, in connection with, or arising out of (i) the Documents. Notwithstanding anything failure of any representation or warranty made by the Company contained in Article III of this Agreement to be true and correct (A) as of the contrary in date of this Agreement, no indemnification payment or (B) (x) as of the Closing Date or (y) as of the date when made in the case of any representation or warranty which specifically relates to an earlier date, as applicable, or (ii) any breach by the Corporation pursuant to this Section 11 with respect to Company of any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of covenants or agreements contained herein which are to be performed by the representations and warranties Company on or before the Closing Date, then, subject in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject all cases to the Deductible or Limitother provisions of this Article VIII, such Buyer Indemnitee(s) shall be payable (a) until entitled to be reimbursed the time as amount of such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (Loss from the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or Escrow Account.
(b) with respect After the Closing, each of Parent and the Surviving Corporation agrees to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by holders of Common Stock of the Company as of the date of this Agreement and their respective officers, directors, employees, Affiliates and/or agents (each a “Seller Indemnitee” and together the “Seller Indemnitees”) from any of them Loss as a result of, in connection with, or arising out of (i) the failure of any representation or relating warranty made by Parent or Newco in this Agreement contained in Article IV of this Agreement to be true and correct (A) as of the date of this Agreement or (B)(x) as of the Closing Date or (y) as of the date when made in the case of any WFI Entity representation or warranty which specifically relates to an earlier date, as applicable, (ii) any breach by Parent or Newco of any of its covenants or agreements contained herein, and/or (iii) any breach by the Surviving Corporation (including by way of being the successor of Newco and the Company) of any of its covenants or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate agreements contained herein which are to any event or state of facts occurring or existing before, on or be performed by the Surviving Corporation after the Closing Date.
(c) The obligations to indemnify and hold harmless pursuant to clauses 8.2(a)(i) and 8.2(b)(i) shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 8.1, except for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims shall survive until final resolution thereof.
Appears in 1 contract
Sources: Merger Agreement (Nautilus, Inc.)
General Indemnification. (a) The Corporation shall indemnify, defend Seller and Parent jointly and severally agree to indemnify and hold each Investorthe Buyer and its Affiliates (including, its affiliatesafter the Closing, the Companies) and each of their respective officers, directors, partnersmanagers, managing directorsstockholders, affiliatesmembers and any successors (solely by operation of law) thereto harmless, employeeson an after-tax basis, agents, consultants, representatives, successors from any and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred paid as a result of or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of the failure of any representation or warranty made by the Seller and Parent in Section 2 of this Agreement, other than representations and warranties made in Section 2.13, to be true and correct (determined without regard to any limitation or qualification by materiality) as of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, date hereof and as of the Documents, and Closing Date.
(b) any third party claim made against an Investor Entity relating The Buyer agrees to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend indemnify and hold the CorporationSeller, its affiliates, Parent and each of their respective Affiliates and their respective officers, directors, employeesstockholders and any successors (solely by operation of law) thereto harmless, agentson an after-tax basis, consultants, representatives, successors from any and assigns harmless against all Losses incurred or paid as a result of or arising from out of the breach failure of any representation or warranty made by the Buyer in Section 3 of its representationsthis Agreement to be true and correct (determined without regard to any limitation or qualification by materiality) as of the date hereof and as of the Closing Date.
(c) The sole recourse and remedy of the Buyer for any inaccuracy in any representation or warranty, warrantiesother than representations and warranties made in Section 2.13, covenants or agreements made by Parent and the Seller in this Agreement shall be under the provisions of and to the extent provided in this Section 8. The Buyer shall not assert any inaccuracy or seek any recourse or remedy in respect thereof other than under the provisions of this Section 8.
(d) The sole recourse and remedy of Parent and the Seller for any inaccuracy in any certificate representation or other instrument delivered pursuant hereto, including, without limitation, warranty made by the Documents. Notwithstanding anything Buyer in this Agreement shall be under the provisions of and to the contrary extent provided for in this Agreement, no indemnification payment by Section 8. Neither Parent nor the Corporation Seller shall assert any such inaccuracy or seek any recourse or remedy in respect thereof other than under the provisions of this Section 8.
(e) The obligations to indemnify and hold harmless pursuant to this Section 11 8.2 shall survive the consummation of the transactions contemplated by this Agreement for the time periods set forth in Section 8.1, except for claims for indemnification asserted in accordance with respect this Agreement prior to any the end of such periods, which claims shall survive until final resolution thereof.
(f) The obligations of the Seller and Parent to indemnify and hold harmless pursuant to this Section 8.2 and Section 8.4 and to make the payment required in Section 8.3, on the one hand, and the obligation of the Buyer to indemnify and hold harmless pursuant to this Section 8.2, on the other hand, shall each be limited to an aggregate amount of $135,000,000, and no Indemnified Party shall be entitled to recovery for Losses otherwise from the Seller and Parent pursuant to this Section 8.2 or to payment of amounts pursuant to Section 8.3, on the one hand, or to recovery for Losses from the Buyer pursuant to this Section 8.2, on the other hand, until the total amount of Losses indemnifiable and, in the case of Section 8.3, amounts payable (but for the limitations contained in this Section 8.2(f)) by the Seller and Parent or the Buyer, as the case may be, hereunder as a result exceeds $2,000,000 (in which case the Indemnified Party shall be entitled to recover the amount of such Losses that exceeds $2,000,000); provided that the limitations set forth in this Section 8.2(f) shall not apply to Losses that arise from a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentationSections 2.2, fraud or deceit2.3, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"2.4, 2.13(c)(iii), (vi) and then only (viii) and 2.24 and, solely to the extent that such Lossesrepresentations and warranties relate to pre-Closing compliance with ERISA and the Code, Section 2.19.
(g) For the avoidance of doubt, any claim for indemnification in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of Losses that arise from a breach of any of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend representations and hold harmless each Investor Entity against any and all Losses (as defined warranties contained in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, 2.13 shall be governed solely by Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date9.7.
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the limitations in Section 6.2(c), from and after the Closing, the Sellers, jointly and severally, shall indemnifyindemnify Buyer and its directors, defend and hold each Investor, its affiliates, and each of their respective officers, directorsemployees, members, managers, partners, managing directors, affiliates, employees, agents, consultantsattorneys, representatives, successors and assigns (collectively, the “Buyer Indemnified Parties”), and shall hold each an "Investor Entity") of them harmless from and against any and all Losses (as defined below) incurred that are incurred, sustained or suffered by an Investor Entity any of them (whether incurred in connection with a Third Party Claim or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Sharesotherwise) in connection with, based upon, arising out of, relating to, to or resulting from all of the following:
(ai) any misrepresentation or breach of, or inaccuracy in, any representation or warranty made by any Seller in this Agreement or any other certificate or Ancillary Document delivered by any Seller hereunder; and
(ii) any breach of any of the representations, warranties, covenants covenant or agreements agreement made by it Seller in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and Agreement.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by the Corporation financed limitations in whole or in partSection 6.2(c), directly or indirectlyfrom and after the Closing, with proceeds from Buyer shall indemnify the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally Sellers and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective directors, officers, directors, employees, members, managers, partners, stockholders, agents, consultantsattorneys, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation(collectively, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"“Seller Indemnified Parties”), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with shall hold each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase them harmless from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible that are incurred, sustained or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred suffered by any of them (in connection with a Third Party Claim or otherwise) in connection with, based upon, arising out of or of, relating to or resulting from:
(i) any WFI Entity being misrepresentation or having been an ERISA Affiliate with breach of, or inaccuracy in ,any other Person representation or warranty made by Buyer in this Agreement; or
(ii) any breach of any covenant or agreement made by Buyer in this Agreement.
(c) Neither Sellers nor Buyer shall be obligated to provide any indemnification for Losses under Section 6.2 unless the aggregate amount of Losses incurred, sustained or suffered by all Buyer Indemnified Parties or Seller Indemnified Parties (as the case may be) for which such Buyer Indemnified Parties or Seller Indemnified Parties (as the case may be) would, but for this Section 6.2(c), be entitled to indemnification under Section 6.2, exceed $500,000 (the “Deductible”), in which case the Sellers or the Buyer (as the case may be) will be obligated to provide indemnification only to the extent such Losses are in excess of the Deductible; provided, however, that:
(i) the Deductible shall not apply to any Losses for which the Buyer Indemnified Parties are entitled to indemnification under Section 6.2(a)(i) in respect of any representations or warranties in Section 3.1 (Organization), Section 3.2 (Authority), Section 3.5 (Title to Shares), Section 3.6 (Brokers) (the “Seller Fundamental Representations”), and
(ii) the Deductible shall not apply to any Losses for which the Seller Indemnified Parties are entitled to indemnification under Section 6.2(b)(i) in respect of any representations or warranties in Section 4.1 (Organization), Section 4.2 (Authority), Section 4.5 (Investment Intent; No Registration), Section 4.6 (Condition of Company; Independent Investigation) or Section 4.7 (Brokers) (the “Buyer Fundamental Representations”). The cumulative aggregate liability of the Seller for indemnification for Losses under Section 6.2(a)(i) (other than another WFI Entityin respect of the Seller Fundamental Representations) shall not exceed $1,000,000 (the “Maximum”); provided, however, that the cumulative aggregate liability of the Seller for indemnification for Losses under Section 6.2(a)(i) in respect of the Seller Fundamental Representations shall not exceed the Purchase Price (the “Cumulative Aggregate Cap”). The cumulative aggregate liability of Buyer for indemnification for Losses under Section 6.2(b)(i) (other than in respect of the Buyer Fundamental Representations) shall not exceed the Maximum; provided, however, that the cumulative aggregate liability of Buyer for Losses under Section 6.2(b)(i) in respect of the Buyer Fundamental Representations shall not exceed the Cumulative Aggregate Cap.
(d) In no event shall the limitations in Section 6.2(c) apply to any Losses incurred, sustained or suffered by any Indemnitee in connection with, based upon, arising out of, relating to or resulting from (i) any breach of any covenant or agreement made by any Seller in this Agreement, (ii) any breach of any covenant or agreement made by Buyer in this Agreement, or (iii) any claim for fraud or intentional misrepresentation.
(e) A party entitled to indemnification hereunder shall herein be referred to as an “Indemnitee.” A party obligated to indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.” Promptly after an Indemnitee either receives notice of any claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder (a “Third Party Claim”), whether such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under this Article VI, notify such Indemnitor in writing of such Third Party Claim; provided, however, that failure to notify an Indemnitor of a Third Party Claim shall not relieve such Indemnitor of any of its obligations hereunder, except to the extent the Indemnitor is actually and materially prejudiced in its defense of such Third Party Claim. Except as provided in this Section 6.2, the Indemnitor shall have the right, at its sole expense, using counsel reasonably acceptable to the Indemnitee and subject to the terms and conditions set forth in this Section 6.2, to contest, defend, litigate or settle any such Third Party Claim; provided, that (i) the Indemnitor shall have notified the Indemnitee in writing of its intention to assume the defense of such Third Party Claim within thirty (30) days of the Indemnitee having given notice of the Third Party Claim to the Indemnitor; (ii) the Indemnitor expressly agrees in such notice to the Indemnitee that, as between the Indemnitor and the Indemnitee, the Indemnitor shall be solely obligated to fully satisfy and discharge the Third Party Claim without reservation of any rights but subject to the limitations set forth in this Agreement; (iii) the Third Party Claim is not, in the reasonable judgment of the Indemnitee, likely to result in Losses arise out that will exceed the limitations on the right of the Indemnitee to indemnification contained in Section 6.2(c); (iv) if reasonably requested to do so by the Indemnitee, the Indemnitor shall have made reasonably adequate provision to ensure the Indemnitee of the financial ability of the Indemnitor to satisfy the full amount of any adverse monetary judgment that may result from such Third Party Claim; (v) assumption by the Indemnitor of such Third Party Claim would not reasonably be expected to be materially detrimental to the Indemnitee (other than solely as a result of monetary damages awarded in connection with such Third Party Claim not in excess of the limitations on the right of the Indemnitee to indemnification contained in Section 6.2(c)), and (vi) the Indemnitor shall at all times diligently contest the Third Party Claim (the conditions set forth in clauses (i), (ii), (iii), (iv), (v) and (vi) being collectively referred to as the “Litigation Conditions”). The Indemnitee shall have the right to participate in, and to be represented by counsel (at its own expense) in any such contest, defense, litigation or relate settlement conducted by the Indemnitor; provided, that the Indemnitee shall be entitled to reimbursement therefor if the Indemnitor shall lose its right to contest, defend, litigate and settle the Third Party Claim or if representation of the Indemnitor and the Indemnitee by the same counsel would, in the reasonable opinion of such counsel, constitute a conflict of interest under applicable standards of professional conduct. The Indemnitor, if it shall have assumed the defense of a Third Party Claim as provided in this Section 6.2, shall not consent to a settlement of, or the entry of any event judgment arising from, any such Third Party Claim without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld or state delayed). The Indemnitor shall not, without the prior written consent of facts occurring the Indemnitee, enter into any compromise or existing beforesettlement which commits the Indemnitee to take, or to forbear to take, any action or which does not provide for a complete release by such third party of the Indemnitee. Notwithstanding anything contained herein to the contrary, the Indemnitee shall have the sole and exclusive right to settle any Third Party Claim, on such terms and conditions as it deems reasonably appropriate, if such Third Party Claim involves criminal or quasi-criminal allegations or seeks primarily equitable or other non-monetary relief. All expenses (including attorneys’ fees) incurred by the Indemnitor in connection with the foregoing shall be paid by the Indemnitor. No failure by an Indemnitor to acknowledge in writing its indemnification obligations under this Article VI shall relieve it of such obligations to the extent such obligations exist. If the Indemnitor fails to assume the defense of a Third Party Claim as provided in this Section 6.2 for any reason (including, for the avoidance of doubt, as a result of the failure of any of the Litigation Conditions), then the Indemnitor shall not be entitled, and shall lose its right, to contest, defend, litigate and settle such a Third Party Claim, and the Indemnitee shall have the right, without prejudice to its right to seek indemnification hereunder, in its discretion exercised in good faith, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim either before or after the Closing Dateinitiation of Litigation, at such time and upon such terms as the Indemnitee deems fair and reasonable, provided that at least five (5) Business Days prior to any such settlement, written notice of its intention to settle is given to the Indemnitor. If, in accordance with this Section 6.2, the Indemnitee contests, defends, litigates or settles any Third Party Claim for which the Indemnitee is entitled to indemnification hereunder, the Indemnitee shall be reimbursed by the Indemnitor for the reasonable attorneys’ fees and other expenses of contesting, defending, litigating and/or settling such Third Party Claim which are incurred from time to time.
Appears in 1 contract
General Indemnification. The Corporation shall indemnify(a) Subject to the limitations set forth in (b) below, defend and hold each InvestorSparton agrees to indemnify Buyer, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns stockholders (each an the "Investor EntityBuyer Parties") and hold them harmless from against any loss, liability, deficiency, damage, or expense (including reasonable legal expenses and against all Losses (as defined belowcosts) incurred which Buyer Parties may suffer, sustain or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating become subject to, or resulting from as a result of (ai) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any representation or warranty made by Sparton in Article VI of its representationsthis Agreement, warrantiesprovided that, covenants for purposes of determining whether a breach of any representation or agreements warranty set forth in Section 6.12 of this Agreement or has occurred, such representation and warranty shall be read without any exception for disclosed matters, and, in particular, any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything reference to the contrary matters set forth on Schedule 6.12 shall be disregarded and ignored, (ii) the breach of any other representation, warranty, covenant, or agreement made by Sparton in this Agreement, no and (iii) the Excluded Liabilities.
(b) The indemnification payment provided for by Sparton in Section 9.3(a)(i) above is subject to the Corporation pursuant following limitations:
(i) Sparton will be liable to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties Buyer Parties only if Buyer gives Sparton written notice thereof within twelve (other than any Losses resulting 12) months after the Closing Date; except for claims arising from breaches of the representations and warranties warranties; (A) set forth in Section 2.76.12 as to which claims must be made within forty-two (42) months after the Closing Date; (B) set forth in Sections 6.7, 6.18, and 6.22 as they relate to Taxeswhich claims must be made within twenty-four (24) months after the Closing Date; (C) set forth in Section 6.15 as to which claims must be made prior to the expiration of the applicable statute of limitation with respect thereto; and (D) set forth in Sections 6.1, 6.2, 6.3, 6.5 and 6.19 as to which claims may be made at any time.
(ii) except for those matters set forth in Sections 2.26 6.15 and 2.276.18, Sparton will not be liable to Buyer Parties for any covenants contained such loss, liability, damage, or expense unless the aggregate amount of all such losses, liabilities, damages, and expenses relating to all such breaches exceeds $1,000,000 (the "Threshold Loss Amount") and, in this Agreement or the event that the aggregate amount of all such losses, liabilities, damages, and expenses exceeds the Threshold Loss Amount, Sparton shall be liable only for the excess over the Threshold Loss Amount and, in any other Document event, Sparton's liability for such losses, liabilities, damages, and expenses shall not exceed $15 million (except that the limitation on Sparton's liability to willful misrepresentationBuyer with respect to losses, fraud or deceitliabilities, which damages, and expenses resulting from a breach of Sections 6.1, 6.2, 6.3, 6.5, and 6.19 shall not exceed the Purchase Price and shall not be subject to the Deductible or Limit) condition of the Threshold Loss Amount). The Threshold Loss Amount shall be payable (a) until increased dollar for dollar, both as provided in Section 6.13, and, if after the time as such Losses shall aggregate (Closing Date, any liability recorded on the books and records of a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (KPI Subsidiary at the "Deductible"), and then only to the extent that such Losses, Closing Date or included in the Acquired Assets is satisfied for an amount less than the recorded amount.
(iii) If Sparton becomes liable to Buyer after the aggregate amount of losses ($1,000,000) set forth in subparagraph (ii) is exceeded, Sparton nevertheless shall not be liable for all Investorsany losses, exceed liabilities, damages, or expenses the Deductible; Buyer Parties may suffer, sustain, or (b) become subject to, if such losses, liabilities, damages, or expenses resulting from a claim with respect to any particular breach are less than $10,000; provided that (A) if the Investor Entities associated with each Investorlosses, in an aggregate liabilities, damages, or expenses related to such claim equals or exceeds $10,000, Sparton shall be liable for the entire amount in excess of the Purchase Price losses, liabilities, damages, or expenses related thereto, and (B) for purposes of the shares issued to such Investor this provision, any claim or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms series of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them claims arising out of or relating to any WFI Entity being the same, similar, or having been an ERISA Affiliate related facts, circumstances, occurrences, transactions, or conditions shall constitute one claim with any other Person (other than another WFI Entity), whether such Losses arise out of or relate respect to any particular breach.
(iv) Sparton's agreement to indemnify Buyer against losses, liabilities, deficiencies, damages, or expenses arising from customer product liability claims shall be governed by and limited as provided in Section 9.10.
(c) Buyer agrees to indemnity Sparton and hold it harmless against any loss, liability, damage, or expense (including reasonable legal expenses and costs) which Sparton may suffer, sustain, or become subject to, as the result of a breach of any representation, warranty, covenant, or agreement by Buyer contained in this Agreement; provided, however, that Buyer will not be liable to Sparton for any such loss, liability, deficiency, damage, or expense relating to breaches of Buyer's representations and warranties contained in Article VII hereof unless the aggregate amount of such losses, liabilities, deficiencies, damages, or expenses resulting to Sparton from all breaches or claims exceeds $1,000,000, and in the event that the aggregate amount of all such losses, liabilities, damages, and expenses exceeds $1,000,000, Buyer shall be liable only for the excess over $1,000,000; provided further, that Buyer will not be liable for any loss, liability, deficiency, damage, or state expense relating to breaches of facts occurring or existing beforeBuyer's representations and warranties contained in Article VII (except Sections 7.1, on or after 7.2, and 7.3) hereof unless written notice of such breach is given by Sparton to Buyer within two (2) years of the Closing Date.
(d) If a party hereto seeks indemnification under this Section 9.3 or Section 9.10, such party (the "Indemnified Party") shall give written notice to the other party (the "Indemnifying Party") of the facts and circumstances giving rise to the claim. If any suit, action, claim, liability, or obligation shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 9.3 or Section 9.10, the Indemnified Party shall promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party, if it so elects, shall assume and control the defense thereof (and shall consult with the Indemnified Party with respect thereto),including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of expense. If the Indemnifying Party elects to assume and control the defense, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified party unless the Indemnifying Party has failed to assume the defense or employ counsel reasonably acceptable to the Indemnified Party. The Indemnifying Party shall not be liable for any settlement of any such action or proceeding effected without the written consent of the Indemnifying Party, provided that, if there shall be a final judgment for the plaintiff in any such action, the Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any loss or liability by reason of such judgment.
(e) The foregoing indemnification provisions are in addition to, and not in derogation of, any statutory or common law remedy any party may have for misrepresentation, breach of warranty, or breach of covenant.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Dura Automotive Systems Inc)
General Indemnification. The Corporation shall (a) After the Closing, Seller agrees to indemnify, defend and hold each Investor, harmless Buyer and/or its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultantsAffiliates, representatives, or any of their respective successors and permitted assigns harmless against all Losses arising (each a “Buyer Indemnitee” and together the “Buyer Indemnitees”) from the breach of any of its representationsdamages, warrantieslosses, covenants liabilities, obligations, costs, judgments, assessments, penalties, fines, (subject to Section 7.3) settlement costs or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, expenses (including, without limitation, reasonable attorneys’ fees and expenses) (any of the Documents. Notwithstanding anything to foregoing, a “Loss”) suffered, incurred or paid, directly or indirectly, as a result of (i) any breach of any representation or warranty made by the contrary Company or Seller in this Agreement, no indemnification payment which breach occurs prior to the expiration of the survival period of such representation and warranty (as provided in Section 7.1), (ii) any breach by the Corporation pursuant to this Section 11 with respect to Company of any Losses otherwise payable hereunder as a result of a breach of its representations and warranties covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date, (other than iii) any Losses resulting from breaches breach by Seller of any of its covenants or agreements contained herein, which breach occurs prior to the expiration of the representations and warranties survival period of such covenant or agreement (as provided in Section 2.7, as they relate to Taxes, Sections 2.26 7.1) and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to (iv) the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (matters listed on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"Schedule 7.2(a), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or .
(b) with respect After the Closing, Buyer agrees to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless Seller and/or its officers, directors, employees, agents , Affiliates, or any of their respective successors and permitted assigns (each Investor Entity against a “Seller Indemnitee” and together the “Seller Indemnitees”) from any Loss suffered, incurred or paid, directly or indirectly, as a result of (i) any breach of any representation or warranty made by Buyer in this Agreement, which breach occurs prior to the expiration of the survival period of such representation and all Losses warranty (as defined provided in Section 11.2 and not subject 7.1), (ii) any breach by Buyer of any of its covenants or agreements contained herein, which breach occurs prior to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 the expiration of the Code which may be incurred survival period of such covenant or agreement (as provided in Section 7.1), and (iii) any breach by the Company of any of them arising out of its covenants or relating agreements contained herein which are to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or be performed by the Company after the Closing Date, which breach occurs prior to the expiration of the survival period of such covenant or agreement (as provided in Section 7.1).
Appears in 1 contract
General Indemnification. The Corporation shall (a) Subject to Section 9.03 hereof, from and after the Closing, Kecy hereby agrees to indemnify, defend and hold each Investorharmless Buyer, its affiliatesAffiliates, and each of their respective officers, directors, partners, managing directors, affiliatesofficers, employees, agentsagents and shareholders (collectively, consultants, representatives, successors and assigns (each an "Investor Entity"the “Kecy Indemnitees”) harmless from and against any and all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, based upon or resulting from from: (ai) any breach of any of the representations, warranties, covenants representation or agreements warranty made by it in this Agreement Kecy herein or in any agreementof the Transaction Documents; (ii) any breach or default in the performance by Kecy of any covenant or agreement contained herein or in any of the Transaction Documents; (iii) any Excluded Asset or any Excluded Liability or any Third Party Claim based upon, certificate resulting from or arising out of the business, operations, properties, assets or obligations of Kecy or any of its Affiliates (other instrument delivered pursuant hereto than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on or prior to the Closing Date; and/or (iv) any Environmental Claim arising under RCRA or CERCLA and relating to Kecy’s operation of the Foam Line Operation prior to the Closing Date, including, without limitation, any off-site disposal of waste material generated from the DocumentsFoam Line Operation. Kecy’s indemnification obligations under this Article IX shall first be satisfied out of the Escrow Funds pursuant to Section 2.10 herein and, and thereafter, Buyer Indemnitees may seek indemnification to the extent permitted in this Article IX against Kecy.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by Section 9.04 hereof, from and after the Corporation financed in whole or in partClosing, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall M▇▇▇▇▇ hereby agrees to indemnify, defend and hold the Corporationharmless Buyer, its affiliatesAffiliates, and each of their respective directors, officers, directors, employees, agentsagents and shareholders (collectively, consultants, representatives, successors the “M▇▇▇▇▇ Indemnitees”) from and assigns harmless against any and all Losses arising from the out of, based upon or resulting from: (i) any breach of any of its representations, warranties, covenants representation or agreements in this Agreement warranty made by M▇▇▇▇▇ herein or in any certificate of the Transaction Documents; (ii) any breach or other instrument delivered pursuant heretodefault in the performance by M▇▇▇▇▇ of any covenant or agreement contained herein or in any of the Transaction Documents; and/or (iii) any Environmental Claim arising under RCRA or CERCLA and relating to Kecy’s operation of the Foam Line Operation prior to the Closing Date, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result off-site disposal of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase waste material generated from the Closing Date Foam Line Operation.
(c) From and after the Closing, Buyer hereby agrees to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless Sellers, their respective Affiliates, and each Investor Entity of their respective directors, officers, employees, agents and shareholders (collectively, the “Seller Indemnitees”) from and against any and all Losses arising out of, based upon or resulting from: (as defined i) any breach of any representation or warranty made by Buyer herein; (ii) any breach or default in Section 11.2 and not subject to the performance by Buyer of any Deductible covenant or Limitagreement herein; (iii) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 ownership of the Code which may be incurred by any Purchased Assets after the Closing; (iv) the performance, a breach, a default, or other actions regarding the Assigned Contracts after the Closing; (v) the Assumed Liabilities; and/or (vii) the conduct or operation of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or the Company’s business from and after the Closing Date.
(d) In the event that a Person entitled to indemnification under this Article IX (the “Indemnified Party”) shall incur or suffer any Losses in respect of which indemnification may be sought under this Article IX against the Person required to provide indemnification under this Article IX (the “Indemnifying Party”), the Indemnified Party must assert a claim for indemnification within the Survival Period by a written notice which contains reasonably sufficient detail and information of the Losses as then known (the “Notice of Loss”) to the Indemnifying Party stating the nature and basis of such Losses. The Notice of Loss must be provided to the Indemnifying Party as soon as practicable, but in no event later than ninety (90) calendar days after the Indemnified Party acquires knowledge of the basis for the claim for indemnification. Notwithstanding the foregoing, any failure to provide the Indemnifying Party with a Notice of Loss in such a timely manner shall not relieve the Indemnifying Party from any liability that it may have to the Indemnified Party under this Section 9.01 except to the extent that the Indemnifying Party’s ability to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss in such a timely manner. If the Notice of Loss relates to a Third Party Claim, then the procedures set forth in Sections 9.01(e), (f) and (g) shall be applicable.
(e) Within thirty (30) days after receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any Action by a third Person (“Third Party Claim”) in respect of which the Indemnified Party will seek indemnification hereunder, the Indemnified Party shall so notify in writing the Indemnifying Party, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party under this Section 9.01 except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced by the Indemnified Party’s failure to give such notice. In no event will the Indemnified Party admit any liability with respect thereto or settle, compromise, pay or discharge the same without the prior written consent of the Indemnifying Party. The Indemnifying Party shall have the right to assume the defense (at the Indemnifying Party’s expense) of any such claim through counsel of the Indemnifying Party’s own choosing by so notifying the Indemnified Party within 45 days of the receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense.
(f) If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, the Indemnified Party shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such Third Party Claim, and making employees of the Buyer reasonably available to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that, by its terms, fully and unconditionally releases and discharges the Indemnified Party from the full amount of any and all direct or indirect obligations or liability in connection with such Third Party Claim and imposes only monetary damages to be paid solely by the Indemnifying Party without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party. None of the Indemnified Party or any of its Affiliates may settle or otherwise dispose of any Third Party Claim for which the Indemnifying Party may have a liability under this Agreement without the prior written consent of the Indemnifying Party, which consent may be withheld in the sole discretion of the Indemnifying Party. The Indemnifying Party shall not be liable under this Section 9.01(f) for any settlement, compromise or discharge affected without its consent in respect of any claim for which indemnity may be sought hereunder. No Indemnified Party shall take any action the purpose of which is to prejudice the defense of any claim subject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.
(g) After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any costs or fees subsequently incurred by such Indemnified Party in connection with the defense thereof. If the Indemnifying Party does not assume control of the defense of such Third Party Claim within 45 days after the Indemnifying Party’s receipt of the notice required pursuant to Section 9.01(d) of this Agreement, then the Indemnified Party shall have the right to defend such claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (ARC Group Worldwide, Inc.)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representationsSubject to Section 8.2(b) below, warrantieseach Stockholder, jointly and severally, covenants or agreements made by it in this Agreement or in any agreementand agrees to indemnify, certificate or other instrument delivered pursuant hereto includingdefend, without limitationprotect and hold harmless Buyer, the Documents, Company and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsstockholders, consultants, representativesassigns, successors and assigns harmless affiliates (individually, a "Buyer-Company Indemnified Party" and collectively, "Buyer-Company Indemnified Parties") from, against and in respect of all Losses arising liabilities, losses, claims, damages, punitive damages, causes of action, lawsuits, administrative proceedings (including informal proceedings), investigations, audits, demands, assessments, adjustments, judgments, settlement payments, deficiencies, penalties, fines, interest (including interest from the breach date of any of its representationssuch damages) and costs and expenses (including without limitation reasonable attorneys' fees and disbursements) (collectively, warranties"Damages") suffered, covenants sustained, incurred or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment paid by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses Buyer-Company Indemnified Parties in connection with, resulting from breaches or arising out of, directly or indirectly, any breach of, or inaccuracy in, any representation or warranty of the representations and warranties Stockholders or the Company set forth in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in Article 3 of this Agreement or any other Document and Schedule or certificate delivered by or on behalf of any Stockholder or the Company pursuant to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or Article 3 of this Agreement.
(b) with Subject to Section 8.2(b) below, each Stockholder severally, but not jointly, covenants and agrees to indemnify, defend, protect and hold harmless the Buyer-Company Indemnified Parties from, against and in respect of all Damages suffered, sustained, incurred or paid by the Buyer-Company Indemnified Parties in connection with, resulting from or arising out of, directly or indirectly, any breach of, or inaccuracy in, any representation or warranty of such Stockholder set forth in Article 3.A. of this Agreement or any Schedule or certificate delivered by or on behalf of such Stockholder pursuant to Article 3.A. of this Agreement.
(c) The Stockholders jointly and severally covenant and agree to indemnify, defend, protect and hold harmless the Investor Entities associated with each InvestorBuyer-Company Indemnified Parties from, against and in respect of all Damages suffered, sustained, incurred or paid by the Buyer-Company Indemnified Parties in connection with, resulting from, or arising out of, directly or indirectly (i) any claim by a participant in the Company's phantom stock plan (such plan being more particularly identified on Schedule 3.25(b)) that such participant is entitled to an aggregate amount ownership or equity interest in excess the capital stock of the Purchase Price Company or (ii) the failure of the shares issued Company's cafeteria plan to such Investor or its predecessors in interest satisfy the requirements of the Code, as shown more specifically set forth on Schedule 1.1 hereto 3.25(c)(iv).
(as increased d) If this Agreement is terminated pursuant to its terms or if a Closing does not otherwise occur, (i) the Company covenants and agrees to indemnify, defend, protect and hold harmless the Buyer and its respective officers, directors, employees, stockholders, assigns, successors and affiliates (individually a "Buyer Indemnified Party" and collectively "Buyer Indemnified Parties"; Buyer Indemnified Party and Buyer-Company Indemnified Party collectively an "Indemnified Party" and Buyer Indemnified Parties and Buyer- Company Indemnified Parties collectively "Indemnified Parities") from, against and in respect of all Damages suffered, sustained, incurred or paid by the amounts Buyer Indemnified Parties in connection with, resulting from or arising out of, directly or indirectly, any nonfulfillment of any covenant or agreement by which the Series A Non-Voting Liquidation Value, as defined in Stockholders or the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from Company prior to the Closing Date and (ii) the Buyer covenants and agrees to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend defend, protect and hold harmless each Investor Entity against any the Company and its officers, directors, employees, stockholders, assigns, successors and affiliates from, against, and in respect of all Losses (as defined Damages suffered, sustained, incurred or paid by them in Section 11.2 and not subject to any Deductible connection with, resulting from or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of, directly, or indirectly any nonfulfillment of any covenant or relating agreement by the Buyer prior to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.
Appears in 1 contract
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything Subject to the contrary in provisions of this AgreementArticle 8, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations from and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from after the Closing Date Date, Sellers, hereby agree to the date of determination) (the "Limit"). The Corporation shall also jointly and severally indemnify, defend and hold harmless Buyer and all of Buyer’s Affiliates (including, after the Closing Date, the Company) and each Investor Entity of their respective directors, officers, managers, partners, employees, agents, equityholders, successors and assigns (each, a “Buyer Indemnified Party” and, collectively, the “Buyer Indemnified Parties”), from and against any and all Losses (as defined in Section 11.2 and not subject to incurred or suffered by any Deductible Buyer Indemnified Party arising out of, based upon or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 resulting from any of the Code which may be incurred following:
(i) any breach of any representation or warranty contained in Article 3 or Article 4;
(ii) any breach by any Seller or the Company of, or any failure of them arising out Sellers or the Company to perform, any of the covenants, agreements or relating obligations contained in or made pursuant to this Agreement;
(iii) any WFI Entity being unpaid Transaction Expenses and Indebtedness (to the extent not deducted from the Purchase Price pursuant to Article 2);
(iv) the actual or having been an ERISA Affiliate with alleged presence of any other Materials of Environmental Concern on any Leased Real Property as of the Closing Date, the actual or alleged violation of any existing at the time of closing date Environmental Law by the Company prior to the Closing Date or any claim or liability under any existing at the time of closing date Environmental Law based on any act or omission of the Company prior to the Closing Date;
(v) all Taxes (or the nonpayment thereof) of (A) the Company or Sellers for all Pre-Closing Periods and Pre-Closing Partial Tax Periods and (B) any and all Taxes of any Person (other than another WFI Entitythe Company) imposed on the Company as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing.
(vi) any document purportedly executed by any Seller or the Company appearing to grant an option, warrant, purchase right, proxy, power of attorney, voting trust or other Contract with respect to (A) the issuance or disposition of any Equity Interests of any Seller or the Company, including the Shares (other than this Agreement), whether such Losses arise out or (B) the disposition of any assets of the Company, that the Sellers maintain was not, in fact, duly executed by any Seller or relate the Company.
(b) Subject to any event or state the provisions of facts occurring or existing beforethis Article 9, on or from and after the Closing Date, Buyer hereby agrees to indemnify, defend and hold harmless Sellers and all of Sellers’Affiliates, including, agents and successors, from and against any and all Losses incurred or suffered by Sellers arising out of, based upon or resulting from any of the following:
(i) any breach or violation of any of the representations or warranties of the Buyer contained in this Agreement;
(ii) any breach or violation of any of the covenants or agreements of Buyer contained in this Agreement; and
(iii) Any and all liability to the Israel Tax Authority imposed or sought to be imposed upon a Seller or the Sellers as a result of actions or omissions of Buyer or the Company, with respect to the Tax ruling obtained in anticipation of Closing, subsequent to the Closing Date.
(c) In the event that a Person entitled to indemnification under this Article 9 (the “Indemnified Party”) shall incur or suffer any Losses in respect of which indemnification may be sought under this Article 9 against the Person(s) required to provide indemnification under this Article 9 (collectively, the “Indemnifying Party”), the Indemnified Party shall assert a claim for indemnification by providing a written notice (the “Notice of Loss”) to the Indemnifying Party stating the nature and basis of such Notice of Loss. The Notice of Loss shall be provided to the Indemnifying Party as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss. Notwithstanding the foregoing but subject to Section 9.2, any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss in a timely manner as aforesaid, shall not relieve any Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 9.1 except to the extent that the ability of such Indemnifying Party to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss. If the Notice of Loss relates to a Third-Party Claim, the procedures set forth in Section 9.1(d) shall be applicable. If the Notice of Loss does not relate to a Third-Party Claim, the Indemnifying Party shall have 30 days from the date of receipt of such Notice of Loss to object to any of the subject matter and any of the amounts of the Losses set forth in the Notice of Loss, as the case may be, by causing the Indemnifying Party to deliver written notice of objection thereof to the Indemnified Party. If the Indemnifying Party fails to send a notice of objection to the Notice of Loss within such 30-day period, the Indemnifying Party shall be deemed to have agreed to the Notice of Loss and shall be obligated to pay to the Indemnified Party the portion of the amount specified in the Notice of Loss to which the Indemnifying Party has not objected. If the Indemnifying Party sends a timely notice of objection, the Indemnifying Party and the Indemnified Party shall use their commercially reasonable efforts to settle (without an obligation to settle) such claim for indemnification. If the Indemnifying Party and the Indemnified Party do not settle such dispute within 30 days after the Indemnified Party’s receipt of the Indemnifying Party’s notice of objection, the Indemnifying Party and the Indemnified Party shall be entitled to seek enforcement of their respective rights under this Article 9.
(d) Promptly after receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any Proceeding by a third party (a “Third-Party Claim”) in respect of which the Indemnified Party shall seek indemnification hereunder, the Indemnified Party shall so notify in writing the Indemnifying Party, but, subject to Section 9.2, any failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 9.1, except to the extent that the ability of the Indemnifying Party to defend the Third-Party Claim is materially prejudiced by the Indemnified Party’s failure to give such notice. In no event shall the Indemnified Party admit any Liability with respect to such Third-Party Claim or settle, compromise, pay or discharge such Third-Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. With respect to any such Third-Party Claim (i) as to which the Indemnifying Party has acknowledged in writing its obligation to indemnify the Indemnified Party hereunder and (ii) for which the Indemnifying Party has demonstrated to the satisfaction of the Indemnified Party the economic ability to satisfy in full all damages arising from such Third-Party Claim, the Indemnifying Party shall have the right to assume the defense (at the expense of the Indemnifying Party) of any such claim through counsel chosen by the Indemnifying Party by notifying the Indemnified Party within 30 days after the receipt by the Indemnifying Party of the Indemnified Party’s notice of the Third-Party Claim; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party; provided, however, that if the Indemnified Party has been advised by its counsel that there are one or more legal defenses available to it that are different from or additional to those available to any Indemnifying Party or that there is otherwise a potential conflict between the interests of the Indemnified Party and any Indemnifying Party, the Indemnified Party shall have the right to employ separate counsel to represent it at the expense of the Indemnifying Party. Subject to the preservation of attorney-client privilege, the Indemnifying Party agrees to render to the Indemnified Party, its counsel and agents such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such claim, which assistance shall include, to the extent reasonably requested, the retention and provision of records and information reasonably relevant to such Third-Party Claim. Unless such settlement (w) includes only the payment of monetary damages (which are fully paid by the Indemnifying Party), (x) does not impose any injunctive or equitable relief upon the Indemnified Party, (y) does not require any admission or acknowledgment of liability or fault of the Indemnified Party and (z) contains an unconditional release of the Indemnified Party in respect of such claim, the Indemnifying Party may not settle or otherwise dispose of any Third-Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(e) With respect to any Third-Party Claim as to which the Indemnifying Party shall have acknowledged in writing its obligation to indemnify the Indemnified Party hereunder, after written notice by the Indemnifying Party to the Indemnified Party of the election by the Indemnifying Party to assume control of the defense of any such Third-Party Claim, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any defense costs or fees subsequently incurred by such Indemnified Party in connection with the defense thereof, except as set forth in Section 9.1(d). If the Indemnifying Party does not assume control of the defense of such Third-Party Claim within 30 days after the receipt by the Indemnifying Party of the notice required pursuant to Section 9.1(d), the Indemnified Party shall have the right to defend such Third-Party Claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party.
Appears in 1 contract
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach Subject to the provisions of any of this Article 7, from and after the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitationEffective Date, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each InvestorSellers, severally and not jointly, shall hereby agree to indemnify, defend and hold the Corporation, its affiliates, harmless Buyer and all of Buyer’s Affiliates and each of their respective directors, officers, directors, employees, agents, consultants, representativesequityholders, successors and assigns harmless (each, a “Buyer Indemnified Party” and, collectively, the “Buyer Indemnified Parties”), from and against any and all Losses incurred or suffered by any Buyer Indemnified Party arising out of, based upon or resulting from any of the following:
(i) any breach of any representation or warranty, irrespective of its representationswhich Seller or Sellers made such representation or warranty, warranties, covenants contained in or agreements referred to in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties Article 3 (other than any Losses resulting from breaches of the representations and warranties contained in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit3.16, which shall not solely be subject addressed by Section 7.4 below) or Article 4;
(ii) any breach by any Seller or the Corporation of, or any failure of any Seller or the Corporation to perform, any of the Deductible covenants, agreements or Limit) obligations contained in or made pursuant to this Agreement; provided, however, that no Seller shall be payable liable to any Buyer Indemnified Party for any Losses related to or arising out of the failure by the Corporation or any Sellers to obtain any Required Consents or Third-Party Consents following a voluntary waiver by Buyer or automatic waiver of Sections 2.4(a) and (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"b), and then only to the extent that such Lossesrelated to a breach of Sections 2.2(d)(ii)-(iii) and 2.3(b) or, in the aggregate case of Section 6.2, due to a failure to obtain a Required Consent or Third Party Consent (a “Buyer Waiver”); or
(iii) any Transaction Expenses; provided, however, that no Seller shall be liable to any Buyer Indemnified Party for all Investors, exceed any Losses related to or arising out of Transaction Expenses related to or arising out of the Deductible; failure by the Corporation or any Sellers to obtain any Required Consents or Third-Party Consents following a Buyer Waiver.
(b) with respect Subject to the Investor Entities associated with each Investorprovisions of this Article 7, in an aggregate amount in excess of from and after the Purchase Price of the shares issued Effective Date, Buyer hereby agrees to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity Seller and their respective Affiliates, and each of their respective directors, officers, employees, agents, equityholders, successors and assigns (each, a “Seller Indemnified Party” and, collectively, the “Seller Indemnified Parties”), from and against any and all Losses incurred or suffered by any Seller Indemnified Party arising out of, based upon or resulting from any of the following:
(i) any breach of any representation or warranty contained in or referred to in Article 5;
(ii) any breach by Buyer of, or any failure of Buyer to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Agreement;
(iii) any Business operations conducted after the Effective Date; or
(iv) any obligations of Guarantors under the Guarantees.
(c) If a Person entitled to indemnification under this Article 7 (the “Indemnified Party”) shall incur or suffer any Losses in respect of which indemnification may be sought under this Article 7 against the Person(s) required to provide indemnification under this Article 7 (collectively, the “Indemnifying Party”), the Indemnified Party shall assert a claim for indemnification by promptly providing a written notice (the “Notice of Loss”) to the Indemnifying Party (or in the case of any notice required to be given to a Seller, to Sellers’ Representative) stating, in reasonable detail, the nature and basis of such Notice of Loss. The Notice of Loss shall be provided to the Indemnifying Party as defined soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss. Notwithstanding the foregoing but subject to Section 7.2, any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss in a timely manner as aforesaid, shall not relieve any Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 7.1 except to the extent that the ability of such Indemnifying Party to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss. If the Notice of Loss relates to a Third Party Claim, the procedures set forth in Section 11.2 7.1(d) shall be applicable. If the Notice of Loss does not relate to a Third Party Claim, the Indemnifying Party shall have thirty (30) days from the date of receipt of such Notice of Loss to object to any of the subject matter and any of the amounts of the Losses set forth in the Notice of Loss, as the case may be, by delivering written notice of objection thereof to the Indemnified Party. If the Indemnifying Party fails to send a notice of objection to the Notice of Loss within such 30 day period, the Indemnifying Party shall be deemed to have agreed to the Notice of Loss and shall be obligated to pay to the Indemnified Party the portion of the amount specified in the Notice of Loss to which the Indemnifying Party has not objected. If the Indemnifying Party sends a timely notice of objection, the Indemnifying Party and the Indemnified Party shall use their commercially reasonable efforts to settle (without an obligation to settle) such claim for indemnification. If the Indemnifying Party and the Indemnified Party do not settle such dispute within thirty (30) days after the Indemnified Party’s receipt of the Indemnifying Party’s notice of objection, the Indemnifying Party and the Indemnified Party shall be entitled to seek enforcement of their respective rights under this Article 7.
(d) Promptly after receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any action, suit or proceeding by a third party (a “Third Party Claim”) in respect of which the Indemnified Party shall seek indemnification hereunder, the Indemnified Party shall so notify in writing the Indemnifying Party, but subject to Section 7.2 any Deductible failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 7.1 except to the extent that the ability of the Indemnifying Party to defend the Third Party Claim is materially prejudiced by the Indemnified Party’s failure to give such notice. In no event shall the Indemnified Party admit any Liability with respect to such Third Party Claim or Limitsettle, compromise, pay or discharge such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. With respect to any such claim as to which the Indemnifying Party has acknowledged in writing the obligation to indemnify the Indemnified Party hereunder, the Indemnifying Party shall have the right to assume the defense (at the expense of the Indemnifying Party) arising of any such claim through counsel chosen by the Indemnifying Party by notifying the Indemnified Party within thirty (30) days after the receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, that any such counsel shall be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party; provided, that the Indemnified Party (at the expense of the Indemnifying Party) shall have the right to employ counsel to represent it at the expense of the Indemnifying Party if there are one or more legal defenses available to the Indemnified Party that are different from or additional to those available to any Indemnifying Party or if there is otherwise a potential conflict between the interests of the Indemnified Party and any Indemnifying Party, in which event the reasonable fees and expenses of such separate counsel shall be paid by the Indemnifying Party. The Indemnifying Party agrees to render to the other parties such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such claim, which assistance shall include, to the extent reasonably requested by a party, the retention, and the provision to such party, of records and information reasonably relevant to such Third Party Claim, and making employees of the other party available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnifying Party may not settle, compromise, or offer to settle or compromise, or otherwise dispose of any Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed unless such settlement includes only the payment of monetary damages (which are fully paid by the Indemnifying Party), does not impose any injunctive or equitable relief upon the Indemnified Party, does not require any admission or acknowledgment of liability or fault of the Indemnified Party and contains an unconditional release of the Indemnified Party in respect of such claim. Neither the Indemnified Party nor any of its Affiliates may settle, compromise, or offer to settle or compromise, or otherwise dispose of any Third Party Claim for which the Indemnifying Party may have a Liability under Title IV this Agreement without the prior written consent of ERISAthe Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(e) With respect to any claim as to which the Indemnifying Party shall have acknowledged in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party hereunder, after written notice by the Indemnifying Party to the Indemnified Party of the election by the Indemnifying Party to assume control of the defense of any such Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any costs or fees subsequently incurred by such Indemnified Party in connection with the defense thereof, except if the Indemnified Party has the right to employ counsel to represent it at the expense of the Indemnifying Party as set forth in Section 7.1(d). If the Indemnifying Party does not assume control of the defense of such Third Party Claim within thirty (30) days after the receipt by the Indemnifying Party of the notice required pursuant to Section 7.1(d) as provided above, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the reasonable cost and expense of the Indemnifying Party. The party controlling the defense of any Third Party Claim shall in any event defend any such matters vigorously and in good faith.
(f) Notwithstanding anything to the contrary contained in this Section 7.1, to the extent there is any inconsistency between this Section 7.1(e) and Section 7.5 as to any Tax Claim, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date7.5 shall control.
Appears in 1 contract
Sources: Stock Purchase Agreement (Walter Investment Management Corp)
General Indemnification. The Corporation shall indemnify(a) If, defend and hold each Investorafter the Closing Date, Purchaser and/or its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns Affiliates and/or agents (each an "Investor Entity"a “Purchaser Indemnitee” and together the “Purchaser Indemnitees”) harmless from suffer any damages, losses, liabilities, obligations, claims of any kind, fines, penalties, interest or expenses (including reasonable attorneys’ and against all Losses consultants’ fees and expenses) (a “Loss”) as defined below) incurred a result of, in connection with, or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from of (awithout duplication) (i) any breach of any representation or warranty made by the Seller (A) contained in Article III or Article IV or (B) in any certificate delivered to Purchaser pursuant to Section 7.2, (ii) any failure by the Seller or any Company to perform any of the representations, warranties, its covenants or agreements made contained herein which are to be performed by it the Seller or any Company on or before the Closing Date, (iii) any failure by the Seller to perform any of its covenants or agreements contained herein which are to be performed by the Seller after the Closing Date, or (iv) any claim asserted by Impex Lumber Corp. and/or Mid-State Lumber Corp. as described in Schedule 3.14(a) or arising out of U.S. Patent No. 6,817,153, then, subject to the other provisions of this Agreement or in any agreementArticle IX, certificate or other instrument delivered pursuant hereto including, without limitation, such Purchaser Indemnitee(s) shall be entitled to be reimbursed the Documents, and amount of such Loss from the Indemnification Escrow Account.
(b) any third party claim made against an Investor Entity relating After the Closing, each of Purchaser and the Companies agrees to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, Seller and its affiliates, and each of their respective officers, directors, employees, agentsAffiliates and/or agents (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from any Loss suffered or paid, consultantsdirectly or indirectly, representativesas a result of, successors and assigns harmless against all Losses in connection with, or arising from out of (without duplication) (i) any breach of any representation or warranty made by Purchaser (A) contained in Article V or (B) in any certificate delivered to the Seller pursuant to Section 7.3, (ii) any failure by Purchaser to perform any of its covenants or agreements contained herein, or (iii) any breach by Purchaser (or any Company) of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything contained herein which are to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred performed by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or Company after the Closing Date.
(c) The obligations to indemnify and hold harmless pursuant to clauses (i) and (iv) of Section 9.2(a) and pursuant to clause (i) of Section 9.2(b) shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 9.1, except (x) for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims for indemnification shall survive until final resolution thereof and (y) with respect to claims for indemnification pursuant to Section 9.2(a)(iv), if a complaint is filed with any Governmental Authority within one (1) year from the Closing Date, which claim for indemnification shall survive until the final resolution thereof. Other than with respect to the Specified Representations and Warranties, for purposes of determining whether there has been a breach of any representation or warranty and the Losses attributable to such breach of representation or warranty, all qualifications contained in Article III as to “material,” “materially” or “Material Adverse Effect” shall be disregarded.
(d) Notwithstanding anything contained herein to the contrary, no party to this Agreement shall be liable to any other party to this Agreement for special, consequential, punitive or exemplary losses or damages or lost profits; provided, however, that the foregoing shall not be construed to preclude recovery by an Indemnified Party in respect of all Losses directly incurred or suffered from Third Party Claims.
Appears in 1 contract
General Indemnification. The Corporation (a) Each Shareholder shall indemnify, indemnify and defend and hold each Investorshall compensate and reimburse the Company, its affiliates, Buyer and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors officers and assigns (employees and shall hold each an "Investor Entity") of them harmless from and against all Losses (as defined below) that are incurred or suffered by an Investor Entity any of them in connection with or resulting from:
(i) any (A) breach of any representation or warranty made by the Company in this Agreement or any breach of any covenant made by the Company in this Agreement which covenant of the Company required performance prior to the Closings and (B) Retained Liabilities, on a joint and several basis with all other Shareholders;
(ii) any breach of any representation, covenant or agreement made by any such Shareholder in this Agreement or any Ancillary Agreement, whether incurred such covenant of such Shareholders requires performance prior to or suffered directly after the Closings, on a several, but not joint, basis; provided, however, that (A) the Shareholders shall not have any obligation to indemnify Buyer from and against Losses resulting from, or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Company or any Shareholder until Buyer has suffered Losses by reason of all such breaches in excess of $50,000 (the “Basket”), after which point the Shareholders will be obligated to indemnify Buyer from and against the aggregate amount of all such Losses regardless of the Basket; (B) there will be an aggregate ceiling equal to (i) $2,000,000, in the event no payments are paid to the Shareholders under the Earn-Out (the “First Cap Amount”), and (ii) $2,500,000, in the event that at least $500,000 is paid to the Shareholders under the Earn-Out (the “Second Cap Amount”), on the obligation of the Shareholders to indemnify Buyer from and against Losses resulting from, arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Company and any Shareholder; provided further however, that the limitations in subsections (A) and (B) of this paragraph shall not apply to Losses arising in respect of claims for breach of representations and warranties relating to Section 3.2 (relating to capitalization), Section 3.1 (relating to organization), Section 3.3 (relating to subsidiaries), Section 3.5 (relating to authority), Section 3.6(b) (relating to immigration matters), Section 3.10 (relating to taxes), Section 3.24 (relating to employee benefits matters), Section 3.26 (relating to brokers), Section 4.1 (relating to ownership of shares), Section 4.2 (relating to authority), Section 4.5 (relating to brokers) and (C) the total liability of each Shareholder with respect to claims under Section 9.2 shall not exceed its Pro Rata Share of the Purchase Price actually received in connection with all claims.
(b) Without limiting any other remedies available at law or in equity, Buyer shall have the right to set off against any payments due and owing from Buyer under the Promissory Notes and the Earn-Out. From and after the Closings, prior to making any claim against any Shareholder, any indemnification to which Buyer is entitled under this Agreement as a result of any Losses incurred under Sections 9.2(a) shall be satisfied (i) first by set off against each Shareholder’s Pro Rata Share of payments owed to the Shareholders under Promissory Notes (whether or not then due) and (ii) second by set off against each Shareholder’s Pro Rata Share of payments earned and owed to the Shareholders, if any, with respect to the Earn-Out; provided, however, to the extent it is later finally determined by a court of competent jurisdiction or by the agreement of the parties that any amount that was so set off, or any portion thereof, was not due and owing to Buyer, Buyer shall pay such amounts to the Shareholders’ Agent promptly after such final determination, plus interest accruing from the time of set off at the Interest Rate.
(c) No limitation or condition of liability provided in this Article IX shall apply to any breach of any representation or warranty contained herein if such breach of representation or warranty was made willfully or with intent to deceive.
(d) Buyer shall indemnify the Shareholders and shall hold each of them harmless from and against all Losses that are incurred or suffered by any of them in connection with or resulting from from:
(ai) any breach of any of the representations, warranties, covenants representation or agreements warranty made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained Buyer in this Agreement or any other Document Ancillary Agreement; or
(ii) any breach of any covenant or agreement made by Buyer in this Agreement or any Ancillary Agreement; provided however, that indemnification obligations of the Buyer for breaches of representations and warranties pursuant to willful misrepresentation, fraud or deceit, which Section 9.2(d)(i) shall not be subject exceed the First Cap Amount or the Second Cap Amount, as applicable, provided further however, that the limitations in this paragraph shall not apply to the Deductible or Limit) shall be payable Losses arising in respect of claims for breach of representations and warranties relating to Section 5.1 (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"relating to organization), and then only Section 5.2 (relating to authorization) or Section 5.4 (relating to brokers).
(e) A party entitled to indemnification hereunder shall herein be referred to as an “Indemnitee.” A party obligated to indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.” As soon as is reasonable after an Indemnitee either (i) receives notice of any claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder or (ii) sustains any Loss not involving a third-party claim or action which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under Article IX hereof, notify such Indemnitor in writing of such claim, action or Loss, as the case may be; provided, however, that failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the extent that such Losses, Indemnitor is actually prejudiced in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess its defense of the Purchase Price action by such failure.
(f) The Shareholders and Buyer agree that for purposes of the shares issued to such Investor (i) determining whether or its predecessors in interest as shown on Schedule 1.1 hereto (as increased not there has been a breach of a representation or warranty by the amounts by which Company, the Series A Non-Voting Liquidation Value, as defined in Shareholders or Buyer and (ii) calculating the Terms amount of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being such breach, the references to Material Adverse Effect or having been an ERISA Affiliate with any other Person materiality qualifications (other than another WFI Entityor correlative terms), whether including as expressed in accounting concepts such Losses arise out as GAAP, shall be disregarded.
(g) No right of indemnification hereunder shall be limited by reason of any investigation or relate to any event or state of facts occurring or existing before, on audit conducted before or after the Closing DateClosings or the knowledge of any party of any breach of a representation, warranty, covenant or agreement by the other party at any time, or the decision of any party to complete the Closings. Notwithstanding anything to the contrary herein, Buyer shall have the right, irrespective of any knowledge or investigation of Buyer, to rely fully, and is relying fully, on the representations, warranties and covenants of the Company and the Shareholders contained herein.
(h) No limitation or condition of liability provided in this Article IX shall apply to the indemnification obligation of the Shareholders set forth in Section 8.2 hereof.
Appears in 1 contract
General Indemnification. The Corporation shall (a) From and after the Closing, each Non-Dissenting Stockholder covenants and agrees to indemnify, defend defend, protect and hold each Investorharmless the Parent Indemnified Parties from, its affiliatesagainst and in respect of such Non-Dissenting Stockholder’s Pro Rata Portion of any Damages suffered, and each of their respective officerssustained, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered paid by an Investor Entity (whether incurred any Parent Indemnified Party, in each case in connection with, resulting from or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, directly or resulting from indirectly (a) any breach of any of the representations, warranties, covenants whether or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any not involving a third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from claim): (i) the breach of any of its representations, warranties, covenants representation or agreements warranty made by the Company in this Agreement or in any certificate delivered or other instrument delivered pursuant hereto, including, without limitation, provided in connection with the Documents. Notwithstanding anything to consummation of the contrary in transactions contemplated by this Agreement, no indemnification payment by ; (ii) the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches covenant or agreement on the part of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained Company set forth in this Agreement or in any certificate delivered or provided in connection with the consummation of the transactions contemplated by this Agreement; (iii) any Indebtedness, Transaction Expenses or failure to pay any Adjustment Excess; (iv) the Company Plans and any and all benefits accrued under the Company Plans as of the Closing Date and any and all other Document and to willful misrepresentationLiabilities arising out of, fraud or deceitin connection with the form, which shall not be subject operation or termination of the Company Plans on or prior to the Deductible Closing Date or Limitany claim relating to any Company Option or the cancellation or termination thereof; (v) shall be payable any Tax or penalty incurred under Code Sections 4980D or 4980H; (avi) until any and all Liabilities for (A) all Taxes of the time as such Losses shall aggregate Company and its Subsidiaries incurred in connection with or arising out of the activities or business of the Company or any of its Subsidiaries on or before the Closing Date (determined, with respect to taxable periods that include but do not end on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such LossesClosing Date, in accordance with the aggregate allocation provisions of Section 6.6(b)) in excess of the amount of such Taxes reflected as a liability in the computation of Closing Net Working Capital or taken into account as Transaction Expenses in determining either the Closing Adjustment or the Post-Closing Adjustment, (B) all Taxes required to be paid by the Company or any of its Subsidiaries by reason of the Company or any of its Subsidiaries (or a predecessor of such entities) having been a member of an affiliated, consolidated, combined, or unitary group at any time on or before the Closing Date, including pursuant to Treasury Regulations Section 1.1502-6 or any analogous or similar state, local, or foreign law, rule, or regulation and (C) all Taxes of any Person (other than the Company and its Subsidiaries) required to be paid by the Company or any of its Subsidiaries by reason of Contract, assumption, transferee liability, or operation of Law, if the liability of the Company or any of its Subsidiaries for all Investors, exceed such Taxes is attributable to an event or transaction occurring on or before the DeductibleClosing Date; or (bvii) with respect to the Investor Entities associated with each InvestorDissenting Share, any payments by Parent in an aggregate amount in excess respect of demands for appraisal of such Dissenting Shares; (viii) any claim brought by a current or former stockholder of the Purchase Price Company, or any other Person, based upon (A) ownership or rights to ownership of any shares of capital stock or other securities of the shares issued Company, (B) any rights of a stockholder (other than the right to such Investor receive a portion of the Merger Consideration pursuant to Section 1.6 or with respect to Dissenting Shares), including any option, preemptive rights or rights to notice or to vote, (C) any rights under the Certificate of Incorporation or Bylaws of the Company, (D) any claim that his, her or its predecessors in interest as shown on Schedule 1.1 hereto (as increased shares were wrongfully repurchased by the Company or issued out of compliance with applicable securities Laws, or (E) any claim relating to any Company Option or the exercise thereof; (ix) any alleged improper allocation of the Merger Consideration among the Stockholders; (x) any inaccuracy in any information or amounts or breach of any representation or warranty set forth in the Merger Consideration Spreadsheet; (xi) any matter set forth in Appendix D; (xii) any Fraud in connection with (1) the negotiation, execution, delivery or performance of this Agreement, (2) the due diligence investigation conducted by which Parent and its Representatives and Affiliates, and (3) any discussions or information regarding the Series A Company and its Subsidiaries provided or otherwise made available in connection with the transactions contemplated by this Agreement; and (xiii) enforcing the indemnification rights of the Parent Indemnified Parties hereunder.
(b) From and after the Closing, each Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date Dissenting Stockholder further covenants and agrees to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend defend, protect and hold harmless the Parent Indemnified Parties from, against and in respect of any Damages suffered, sustained, incurred or paid by any Parent Indemnified Party, in each Investor Entity against case in connection with, resulting from or arising out of, directly or indirectly (whether or not involving a third party claim): (i) the breach of any and all Losses (as defined representation or warranty made by such Non-Dissenting Stockholder in Section 11.2 and not subject to this Agreement or in any Deductible certificate delivered or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 provided in connection with the consummation of the Code which may be transactions contemplated by this Agreement; (ii) the breach of any covenant or agreement on the part of such Non-Dissenting Stockholder set forth in this Agreement or in any certificate delivered or provided in connection with the consummation of the transactions contemplated by this Agreement; and (iii) enforcing the indemnification rights of the Parent Indemnified Parties hereunder.
(c) From and after the Closing, Parent, Merger Sub, the Company and its Subsidiaries, covenant and agree to indemnify, defend, protect and hold harmless the Seller Indemnified Parties from, against and in respect of any Damages suffered, sustained, incurred or paid by any of them Seller Indemnified Party, in each case in connection with, resulting from or arising out of, directly or indirectly (whether or not involving a third party claim): (i) the breach of any representation or relating to warranty made by Parent or Merger Sub in this Agreement or in any WFI Entity being certificate delivered or having been an ERISA Affiliate provided in connection with the consummation of the transactions contemplated by this Agreement; (ii) the breach of any other Person covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or in any certificate delivered or provided in connection with the consummation of the transactions contemplated by this Agreement; and (other than another WFI Entity), whether such Losses arise out iii) enforcing the indemnification rights of or relate to any event or state of facts occurring or existing before, on or after the Closing DateSeller Indemnified Parties hereunder.
Appears in 1 contract
Sources: Merger Agreement (STG Group, Inc.)
General Indemnification. (a) The Corporation Seller and each Seller Party shall indemnify, defend jointly and severally indemnify Buyer Indemnified Parties and save and hold each Investor, its affiliatesof them harmless from and against, and pay on behalf of or reimburse such Buyer Indemnified Parties for, any and all Losses which any such Buyer Indemnified Party may suffer, sustain or become subject to as a result of, arising from, in connection with, by virtue of or related to (i) any breach or inaccuracy of any representation or warranty regarding the Acquired Companies, Parent or Seller set forth in this Agreement (including but not limited to those representations and warranties set forth in ARTICLE III and ARTICLE IV), the Schedules or any certificate furnished by or on behalf of the Acquired Companies, Parent or Seller pursuant to this Agreement (in each case ignoring, for purposes of their respective officersdetermining the amount of Losses relating thereto, directorsany qualification as to materiality, partnersMaterial Adverse Effect or words of similar import contained in any such representation or warranty (other than the representation contained in Section 3.5 (No Material Adverse Effect)), managing directors(ii) any breach or non-fulfillment of any covenant, affiliatesagreement or other provision by the Acquired Companies, Seller or any Seller Party under this Agreement, the Schedules or any certificate furnished by or on behalf of the Acquired Companies or Seller pursuant to this Agreement, (iii) any Liability for Taxes or arising out of or related to Employee Benefit Plans arising on or before the Closing Date, (iv) any Liabilities arising out of or related to labor and social security Laws resulting from any natural person acting as an independent contractor (directly or indirectly) for the Acquired Companies arising on or before the Closing Date, (v) any Indebtedness to the extent not included in Final Indebtedness, (vi) any Dominican Employment Liabilities, (vii) any Liabilities arising out of or related to the operations, employees (or former employees), agentsbusinesses and assets of J&S Jamaica, consultantsPT Mexico Services, representativesTAV, successors SIID, CDI, ▇▇▇▇▇▇▇, and assigns with respect to any such Liabilities arising on or before the Closing Date, Innova, (each an "Investor Entity"viii) any Liabilities related to or arising out of the TAV Assets, including, but not limited to, any successor Liability for Taxes, labor and social security Laws arising prior to the transfer of any such asset to J&S Audiovisual Mexico, (ix) any Liabilities related to or arising out of the CDI Liquidation, (x) any claims brought by or on behalf of any employee (or former employee) of TAV, SIID, CDI, ▇▇▇▇▇▇▇ and, with respect to any such Liabilities arising on or before the Closing Date, Innova, (xi) any Liabilities arising or related to any direct or indirect breach or non-fulfillment of the TAV Assets Covenant or a breach by TAV of the TAV Transportation Services Renewal, Transportation Services Agreement or TAV Asset Purchase Agreement.
(b) Buyer shall indemnify Seller and save and hold it harmless from and against all any Losses (which Seller may suffer, sustain or become subject to as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out a result of, relating toarising from, in connection with, by virtue of or resulting from related to (ai) any breach or inaccuracy of any representation or warranty of the representations, warranties, covenants or agreements made by it in Buyer under this Agreement or in any agreementcertificate furnished by or on behalf of Buyer pursuant to this Agreement, certificate or (ii) any breach or non-fulfillment of any covenant, agreement or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction provision by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in Buyer under this Agreement or in any certificate furnished by or on behalf of Buyer pursuant to this Agreement.
(c) The Seller and Seller Parties shall not be liable to Buyer Indemnified Parties for any Loss pursuant to Section 7.2(a)(i) and (ii) (other instrument delivered than with respect to Fundamental Representations and covenants and agreements contained in this Article VII) (i) until the aggregate amount of all such Losses that Seller or Seller Parties would, but for this clause (i), be liable exceeds $227,500 in the aggregate (the “Basket”), in which case Seller shall be liable for all such Losses in excess of the Basket, or (ii) to the extent the aggregate amount of all Losses previously indemnified by Seller pursuant hereto, including, without limitation, to Section 7.2(a)(i) exceeds $4,250,000 (the Documents“Cap”). Notwithstanding anything to the contrary in this Agreementcontained herein, no indemnification payment by the Corporation pursuant to this Section 11 Basket and the Cap shall not apply with respect to any Losses otherwise payable hereunder as a result Loss arising from or related to (and no such Loss shall be counted towards the Basket or the Cap), (1) fraud, (2) breaches or inaccuracies of a the Fundamental Representations, (3) any matters referenced in Sections 7.2(a)(ii) - (xi) or (4) any breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants post-Closing covenant or agreement contained in this Agreement or any other Document and Article VII (including those covenants set forth in Section 7.7); provided, however, that, except for Losses attributable to willful misrepresentation, fraud or deceitpursuant to Sections 7.2(a)(ii) - (xi) and Section 7.3, the aggregate liability of the Sellers under this Agreement shall not exceed the Aggregate Purchase Price.
(d) Seller and Seller Parties shall have the right to update the Schedules and deliver one or more schedule supplements (“Schedule Supplements”) to the Buyer at any time prior to the Closing Date. Seller and Seller Parties shall indemnify the Buyer Indemnified Parties under Sections 7.2 and 7.3 as if the Schedule Supplements had not been delivered. Any Losses for which the Seller would not have had to indemnify the Buyer Indemnified Parties but for the foregoing sentence shall not be subject to the Deductible Basket, provided, however, that the Buyer may not terminate this Agreement under Section 8.1(b) due to a breach of a representation, warranty or Limitcovenant if a Schedule Supplement cures such breach, unless any such breach has a Material Adverse Effect. Any amounts paid by Seller or Seller Parties under this Section 7.2(d) shall be payable counted towards the aggregate amount of Losses to be indemnified by the Seller and Seller Parties under the Cap and the Aggregate Purchase Price, as applicable.
(ae) until the time as such Losses Any amounts owing under Section 7.2(a) or 7.2(b) shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 be made by wire transfer of immediately available funds within 15 business days (the "Deductible"“Determination Date”) after the determination thereof by adjudication (by any designated arbiter) or agreement of the indemnifying party. Seller and Seller Parties agree that the Escrow Shares comprising the Escrow Fund shall be available to indemnify Buyer for any amounts owing under Section 7.2(a) and that any amounts so owed shall be satisfied by the disbursement to Buyer of Escrow Shares having an Indemnity Value equal to the amounts to be satisfied. Any amounts owing by Seller or a Seller Party under Section 7.2(a)(i) (other than with respect to the Fundamental Representations) shall first be satisfied to the extent possible from the Escrow Shares comprising the Escrow Fund and thereafter shall be satisfied directly by Seller in accordance with the first sentence of this Section 7.2(e). All indemnification payments under this Section 7.2 shall be deemed adjustments to the Aggregate Purchase Price, as finally determined pursuant to Section 2.4. Each Indemnitee shall take commercially reasonable steps to mitigate any Loss upon becoming aware of the occurrence of an event or circumstance that gives or would reasonably be expect to give rise to a claim for Losses under this Section 7.2. On the 18 month anniversary of the Closing Date (the “Release Date”), a number of Escrow Shares obtained by dividing (i) $2,750,000 by (ii) the Indemnity Value shall be released to the Seller Parties (less a requisite number of Escrow Shares withheld for pending claims) in accordance with and then subject to the terms of the Escrow Agreement. Any Escrow Shares remaining in the Escrow Fund (less a requisite number of Escrow Shares withheld for pending claims) shall be released to Seller Parties 36 months after the Closing Date in accordance with and subject to the terms of the Escrow Agreement.
(f) Subject to applicable law, Buyer Indemnified Parties shall be entitled to offset any amounts owed by a Buyer Indemnified Party against any amounts due from Seller to any of Buyer Indemnified Parties pursuant to this Agreement (whether pursuant to this ARTICLE VII or pursuant to Section 2.4), provided that in the event Seller brings an action against Buyer challenging an indemnification claim made by a Buyer Indemnified Party hereunder, any amounts that would have been paid to Seller but for Buyer Indemnified Parties’ right of offset shall be placed in an escrow account pending the ultimate resolution of such lawsuit. Any amount owed to any Buyer Indemnified Party under this Section 7.2 will be reduced by any amount such Buyer Indemnified Party actually receives as a result of the underlying Loss giving rise to any claim pursuant to the terms of the insurance policies (if any) covering such claim.
(g) Any party making a claim for indemnification under this Section 7.2 (an “Indemnitee”) shall notify the indemnifying party (an “Indemnitor”) of the claim in writing promptly after the Indemnitee has determined that a basis for a claim exists, including after receiving written notice of any Proceeding or other claim against it (if by a third party), describing the claim, the amount thereof (if known and quantifiable), the basis therefor, and copies of all written material related to the claim in the Indemnitee’s possession; provided that the failure to so notify an Indemnitor shall not relieve an Indemnitor of its obligations hereunder, except to the extent that (and only to the extent that that) an Indemnitor is materially prejudiced thereby, including any prejudice resulting from an untimely notification of such Lossesclaim. In the event of a Proceeding or claim, any Indemnitor shall be entitled to participate in the aggregate defense of such Proceeding or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by appointing counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense, and the Indemnitee shall cooperate in good faith in any such defense; provided that, prior to the Indemnitor assuming control of such defense they shall first verify to the Indemnitee in writing that they shall be fully responsible for all InvestorsLosses relating to such claim for indemnification (subject to the Basket and the Cap, exceed if applicable) and that they will provide full indemnification to the DeductibleIndemnitee with respect to such Proceeding or other claim giving rise to such claim for indemnification hereunder (without limitation or reservation of rights other than the Basket and the Cap, as applicable); and provided further, that (a) the Indemnitee shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, subject to the Indemnitor’s right to control the defense thereof; provided that the fees and expenses of such separate counsel shall be borne by the Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date Seller effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by Seller); (b) Seller shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by a Buyer Indemnified Party if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim primarily seeks an injunction or other equitable relief against the Buyer Indemnified Party; (ii) the Indemnitor fails to vigorously prosecute or defend such claim; (iii) the claim involves any Acquired Company’s customers, suppliers or material business relations; (iv) the claim involves Taxes; or (bv) Buyer Indemnified Party reasonably believes that the Loss relating to such claim could exceed the maximum amount that Buyer Indemnified Party could then be entitled to recover under the applicable provisions of this Section 7.2; and (c) if an Indemnitor shall control the defense of any such claim, such Indemnitor shall obtain the prior written consent of the Indemnitee (which shall not be unreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all Liabilities and obligations with respect to the Investor Entities associated with each Investorsuch claim, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Datewithout prejudice.
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the other provisions of this Article 7, from and after the Closing, the Seller Parties shall jointly and severally indemnify, defend and hold each Investor, Buyer and/or its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns Affiliates and/or agents (each a “Buyer Indemnitee”) harmless against all from: (i) any Losses arising resulting from the any breach of any of its representations, warranties, covenants representation or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment warranty made by the Corporation pursuant Company or the Seller Parties contained in Article 3 or Article 4, respectively; (ii) any Losses resulting from any breach by any of the Seller Parties of any of the covenants contained herein which are to this Section 11 be performed by any of the Seller Parties after the Closing; and (iii) any Losses with respect to any Losses otherwise payable hereunder as a result unfunded claim of a breach of its representations and warranties (other than any Losses resulting from breaches Company employee under any self-insured health insurance or medical Employee Benefit Plan of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, Company or the Seller Parties with respect to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject period prior to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or Closing.
(b) with respect Subject to the Investor Entities associated with each Investorother provisions of this Article 7, in an aggregate amount in excess of Buyer agrees to, and shall, after the Purchase Price of Closing, cause the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation ValueCompany to, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold Seller Parties and their respective Affiliates, officers, directors, employees, and agents (each a “Seller Indemnitee”) harmless each Investor Entity against from any and all Losses resulting from: (as defined i) any breach of any representation or warranty made by Buyer contained in Section 11.2 and not subject to Article 5; (ii) any Deductible or Limit) arising under Title IV breach by Buyer of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them its covenants or agreements contained herein; (iii) any breach by the Company of any of its covenants or agreements contained herein which are to be performed by the Company after the Closing Date; and (iv) any Losses arising out of any act or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts omission occurring or existing beforefailing to occur on the part of Buyer, the Company or any of their respective Affiliates, successors, assignees or transferees under the Company Real Property Lease on or after the Closing Date(provided, however, that notwithstanding the foregoing, neither Buyer nor the Company be liable for any Loss to the extent resulting from or relating to the gross negligence or willful misconduct of any Seller Party, any of its Affiliates, or any of their respective successors, assignees or transferees).
(c) The obligations to indemnify and hold harmless pursuant to this Section 7.2 shall survive the consummation of the transactions contemplated hereby for the applicable period set forth in Section 7.1, except for claims for indemnification asserted specifically and in writing prior to the end of such applicable period (which claims shall survive until final resolution thereof).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Exela Technologies, Inc.)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representationsShareholders, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, jointly and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointlyseverally, shall indemnify, defend and hold the Corporationharmless Parent and its directors, its affiliates, and each of their respective officers, directorsAffiliates, employees, agentsagents and representatives (collectively, consultantsthe “Parent Indemnified Parties”), representatives, successors from and assigns harmless against all Losses arising that are incurred or suffered by any of them in connection with or resulting from any of the following:
(i) any breach of, or inaccuracy in, any representation or warranty made by any Shareholder in this Agreement;
(ii) any breach of any of its representations, warranties, covenants or agreements in this Agreement or in covenant made by any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary Shareholder in this Agreement;
(iii) any Closing Indebtedness, no to the extent not included in the adjustments provided for in Section 1.7;
(iv) any Transaction Expense, to the extent not included in the adjustments provided for in Section 1.7;
(v) any matter identified on Schedule 3.13; or
(vi) the enforcement by any Parent Indemnified Party of its indemnification payment rights under this Agreement.
(b) Parent shall indemnify, defend and hold harmless Shareholders and their respective directors, officers, Affiliates, employees, agents and representatives (collectively, the “Shareholder Indemnified Parties”) from and against all Losses that are incurred or suffered by any of them in connection with or resulting from any of the following:
(i) any breach of, or inaccuracy in, any representation or warranty made by Parent in this Agreement;
(ii) any breach of any covenant made by Parent in this Agreement; or
(iii) the enforcement by the Corporation Shareholder Indemnified Parties of their indemnification rights under this Agreement.
(c) The maximum aggregate obligation of (i) Shareholders for Losses pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result claims for breaches of a breach of its representations and warranties (other than any Fundamental Representations) under Section 7.2(a)(i), and (ii) Parent for Losses resulting from pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed $1,250,000 (the “Cap”). The Cap shall not apply to Losses arising in respect of claims for misrepresentations and breach of the Fundamental Representations.
(d) In no event shall the limitations set forth in Section 7.2(c) apply to Losses suffered or incurred by any Indemnified Party as a result of, or arising out of, (i) the matters set forth in Sections 7.2(a)(ii) through 7.2(a)(vi), Sections 7.2(b)(ii) or 7.2(b)(iii), or Section 6.1, or (ii) any fraud or intentional misrepresentation by a Party
(e) The representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which the Ancillary Agreements shall not be subject to the Deductible affected or Limit) diminished by, and no right of indemnification hereunder shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; limited by reason of any investigation or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on audit conducted before or after the Closing Dateor the knowledge of any Party of any breach of a representation, warranty, covenant or agreement by the other Party at any time, or the decision of any Party to complete the Closing.
Appears in 1 contract
Sources: Merger Agreement (Transcat Inc)
General Indemnification. The Corporation shall indemnify(a) Subject to the other provisions of this Article VIII, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all after the Closing, Purchaser and its Affiliates, including, following the Closing, the Company and its Subsidiaries (each, a “Purchaser Indemnitee”), shall be indemnified and held harmless solely out of the Closing Escrow Amount from any Losses suffered or paid by any Purchaser Indemnitee (regardless of whether or not such Losses relate to any third party claim) as defined below) incurred a result or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from of (ai) any breach of any representation or warranty made by Seller in Article III or the certificate delivered by Seller pursuant to Section 6.2(d), or (ii) any breach by Seller of any of the representations, warranties, covenants or agreements made by it Seller in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and Transaction Documents that are required to be performed by Seller after the Closing.
(b) Subject to the other provisions of this Article VIII, from and after the Closing, Purchaser shall, and shall after the Closing, cause the Company to, indemnify and hold harmless Seller and its Affiliates (each, a “Seller Indemnitee”) from any Losses suffered or paid by any Seller Indemnitee (regardless of whether or not such Losses relate to any third party claim claim) as a result or arising out of (i) any breach of any representation or warranty made against an Investor Entity relating to any transaction by the Corporation financed Purchaser in whole Article IV or in partthe certificate delivered by Purchaser pursuant to Section 6.3(c), directly or indirectly, with proceeds from the sale (ii) any breach by Purchaser of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements made by Purchaser in this Agreement or in any certificate or other instrument delivered pursuant heretothe Transaction Documents that are required to be performed by Purchaser after the Closing, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (biii) with respect any claim or Action brought or threatened to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity be brought against any and all Losses (as defined in Section 11.2 and not subject to Seller Indemnitee at any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, time on or after the Closing DateDate relating to actions taken by Purchaser or any Affiliate thereof, including the Company or its Subsidiaries, from and after the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (International Shipholding Corp)
General Indemnification. The Corporation shall (a) Subject to the terms and conditions of this ARTICLE IX and effective on and after the Closing, Seller will indemnify, defend and hold each Investor, Purchaser and its affiliates, Affiliates (which after the Closing will include the Company) and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsshareholders, consultantsmembers, representativesmanagers, partners and agents and each of their heirs, executors, successors and assigns of each of the foregoing (each a “Purchaser Indemnitee” and together the “Purchaser Indemnitees”) harmless against from any and all Losses damages, losses, Liabilities, obligations, amounts paid in settlement, costs, payments, penalties, fines, assessments, judgments, Taxes, claims of any kind, interest or expenses (including reasonable attorneys’ fees and expenses) (“Loss”) incurred, sustained, suffered or paid by, or imposed upon, any of the Purchaser Indemnitees based upon, arising from out of, with respect to or by reason of (i) any inaccuracy in, or breach of, any representation or warranty made by (A) Seller in ARTICLE III or the breach certificate delivered pursuant to Section 7.2(h)(i) hereto, or (B) Seller in ARTICLE IV or the certificate delivered pursuant to Section 7.2(h)(i) hereto, (ii) any Liability of the Company or Seller for (A) any and all Taxes for any Pre-Closing Tax Period, and (B) any and all Taxes of any Person (other than the Company) imposed on the Company as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing but only to the extent in excess of any amount accrued for such Taxes and taken into account for purposes of the Net Working Capital Adjustment, (iii) any failure by Seller to perform or comply with any of its representations, warranties, covenants or agreements in this Agreement contained herein, (iv) any failure by the Company to perform or in comply with any certificate of its covenants or other instrument delivered pursuant hereto, including, without limitation, agreements contained herein which are to be performed or complied with by the Documents. Notwithstanding anything Company prior to the contrary Closing, (v) any Funded Indebtedness of the Company or Company Transaction Expenses not set forth in this Agreementthe Payment Instructions Letter, no indemnification payment (vi) (A) the matters described in Section 3.27 of the Disclosure Memorandum (or, other than with respect to the matters described in Items 3 and 6 of Section 3.27 of the Disclosure Memorandum, matters substantially similar to the matters described therein (including all claims fairly and reasonably arising therefrom) relating to the manufacture, sale, distribution or use of any product or the performance of any service by the Corporation pursuant Company prior to this the Closing Date), or (B) the matters described in Items 2, 4 and 5 of Section 11 3.8 of the Disclosure Memorandum, and (vii) each Pre-Closing Insured Event but only to the extent such Losses exceed the deductible or retention amount under the insurance policy and for which a claim has been submitted in accordance with Section 6.14 under the applicable insurance policy and the applicable insurance company has denied such claim under the applicable insurance policy due to the consummation of the transactions contemplated hereby, including due to the insurance company’s failure or refusal to consent to any transfer of rights and duties under such insurance policy; provided, however, that Seller shall have no obligation to indemnify a Purchaser Indemnitee from any Losses (x) consisting of or relating to Taxes with respect to any Losses otherwise payable hereunder taxable year (or portion thereof) beginning after the Closing Date as a result of a any inaccuracy in, or breach of its representations and warranties (other than any Losses resulting from breaches of of, the representations and warranties set forth in Section 2.7, as they relate to Taxes, 3.9 other than those set forth in Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"3.9(f), 3.9(g), 3.9(h), 3.9(i) and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible3.9(j); or (by) with respect to the Investor Entities associated with each Investorobligation to indemnify Purchaser Indemnitees pursuant to Section 9.2(a)(vi), in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest for amounts that are included as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined a current liability in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date final Net Working Capital determined pursuant to Section 2.2(b).
(b) Subject to the date terms and conditions of determination) (this ARTICLE IX and effective on and after the "Limit"). The Corporation shall also Closing, Purchaser will indemnify, defend and hold Seller and its Affiliates (which prior to the Closing will include the Company) and their respective officers, directors, employees, shareholders, members, managers, partners and agents and each of the heirs, executors, successors and assigns of each of the foregoing (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless each Investor Entity against from any and all Losses (as defined in Section 11.2 and not subject to Loss incurred, sustained, suffered or paid by, or imposed upon, any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred Seller Indemnitees based upon, arising out of, with respect to or by reason of (i) any inaccuracy in, or breach of, any representation or warranty made by Purchaser in this Agreement contained in ARTICLE V or the certificate delivered pursuant to Section 7.3(b)(i) hereto, (ii) any failure by Purchaser to perform or comply with any of them arising out its covenants or agreements contained herein, (iii) the failure of Purchaser to pay any required Section 338(h)(10) Amount, (iv) any failure by the Company to perform or relating to any WFI Entity being or having been an ERISA Affiliate comply with any other Person (other than another WFI Entity), whether such Losses arise out of its covenants or relate agreements contained herein which are to any event be performed or state of facts occurring or existing before, on or complied with by the Company after the Closing Date, and (v) any Taxes properly incurred by Seller for its taxable year that includes the Closing Date attributable to any action or transaction taken by Purchaser or the Company on the Closing Date, after the Closing, outside of the Ordinary Course of Business (excluding, for the avoidance of doubt, any Tax owed by Seller by reason of the Section 338(h)(10) Election).
Appears in 1 contract
General Indemnification. The Corporation shall (a) Subject to the other provisions of this Article 9, from and after the Closing, Seller shall, indemnify, defend and hold each Investor, harmless Buyer and its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and permitted assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsAffiliates and agents (including, consultantsfrom and after the Closing, representativesthe Group Companies) (each a “Buyer Indemnitee”) from any actual damages, successors losses, liabilities, obligations, claims, Actions, fines, penalties, costs, interest or out-of-pocket expenses (including reasonable attorneys’ and assigns harmless against all Losses accountants’ fees, disbursements and expenses) (each, a “Loss”) suffered or paid, directly or indirectly, as a result of, in connection with, or arising from the out of (i) any inaccuracy or breach of any of its representationsthe representations and warranties made by the Company or Seller in Article 3 and Article 4, warrantiesrespectively, covenants or agreements in this Agreement or in any certificate or other instrument delivered to Buyer pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by (ii) any breach of, or failure to perform or comply with, any covenant or agreement of Seller contained herein, (iii) each of the Corporation pursuant to this Section 11 Contracts set forth on Schedule 9.2(a), and (iv) the third paragraph of the Contract set forth on Schedule 6.18; provided, that, with respect to any Losses that would otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in be indemnifiable by Seller pursuant to this Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b9.2(a) with respect to the Investor Entities associated with each Investora Reserved Matter, in an aggregate amount in excess of the Purchase Price of the shares issued Seller shall only be obligated to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless the Buyer Indemnitees for fifty percent (50%) of any such Losses.
(b) Subject to the other provisions of this Article 9, Buyer agrees to, and shall, after the Closing, cause the Company to indemnify, defend and hold harmless Seller and its respective officers, directors, employees, Affiliates and agents (each Investor Entity against a “Seller Indemnitee”) from any and all Losses (Loss suffered or paid, directly or indirectly, as defined a result of, in Section 11.2 and not subject to any Deductible connection with, or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of (i) any inaccuracy or relating breach of any of the representations and warranties made by Buyer contained in Article 5 or in any certificate delivered to the Company pursuant to this Agreement, (ii) any WFI Entity being breach of, or having been an ERISA Affiliate with failure to perform or comply with, any other Person covenant or agreement of Buyer contained herein, and (other than another WFI Entity)iii) any breach of, whether such Losses arise out or failure to perform or comply with, any covenant or agreement of or relate the Company contained herein which are to any event or state of facts occurring or existing before, on or be performed by the Company after the Closing Date.
(c) Except with respect to Third Party Claims addressed in Section 9.3, any Buyer Indemnitee or Seller Indemnitee (each, an “Indemnified Party”) who wishes to make a claim for indemnification for a Loss pursuant to this Section 9.2 shall give written notice to each Person from whom indemnification is being claimed (an “Indemnifying Party”) promptly after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss; provided, that no delay or failure on the part of the Indemnified Party in so notifying an Indemnifying Party shall relieve such Indemnifying Party of any liability or obligation hereunder except to the extent such Indemnifying Party is actually prejudiced by such failure. Notwithstanding the foregoing, in no event shall an Indemnifying Party have any obligation to indemnify the Indemnified Party with respect to any claim that is not made in writing and received by such Indemnifying Party on or before the expiration of the time periods specified in Section 9.1. Promptly after written notice of a claim has been provided as set forth above, the Indemnified Party shall supply the Indemnifying Party with such information and documents as it has in its possession regarding such claim, together with all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred, and will permit the Indemnifying Party to inspect such other records and books in the possession of the Indemnified Party and relating to the claim and asserted Loss as the Indemnifying Party shall reasonably request during normal business hours and on prior written request, subject to the provisions of Section 6.12 hereof.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Walter Investment Management Corp)
General Indemnification. The Corporation (a) Subject to the limitations in Section 7.2(c), the Seller Parties shall, jointly and severally, indemnify, defend and hold harmless Buyer and its directors, officers, Affiliates, employees, agents and representatives, 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 misrepresentation or breach of, or inaccuracy in, any representation or warranty made by any Seller Party in this Agreement or any Ancillary Agreement;
(ii) any breach of any covenant made by any Seller Party in this Agreement or any Ancillary Agreement;
(iii) any Indebtedness;
(iv) any Transaction Expense;
(v) any Seller Environmental Liabilities;
(vi) any matters identified on Schedule 7.2(a)(vi); or
(vii) the enforcement by Buyer and its directors, officers, Affiliates, employees, agents and representatives of their indemnification rights under this Agreement.
(b) Subject to the limitations in Section 7.2(c), Buyer shall indemnify, defend and hold each Investor, its affiliatesharmless the Seller Parties and their Affiliates, and each of their respective officerstrustees, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors agents and assigns (each an "Investor Entity") harmless representatives from and against all Losses (as defined below) that are incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership any of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, them in connection with or resulting from each of the following:
(ai) any misrepresentation or breach of any representation or warranty made by Buyer in this Agreement or any Ancillary Agreement;
(ii) any breach of any of the representations, warranties, covenants or agreements covenant made by it Buyer in this Agreement or any Ancillary Agreement; or
(iii) the enforcement by the Seller Parties of their indemnification rights under this Agreement.
(c) Notwithstanding the foregoing and subject to the proviso at the end of this paragraph and the terms of this Article VII, (i) the Seller Parties shall not be obligated to provide any indemnification for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i) unless the aggregate amount of Losses incurred by Buyer with respect to such breaches of representations and warranties exceeds $100,000 (the “Threshold”), in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, which case the DocumentsSeller Parties will be liable for the aggregate amount of the Losses over and above a $50,000 deductible (the “Deductible”), and (bii) Buyer shall not be obligated to provide any such indemnification for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), unless the aggregate amount of Losses incurred by Seller with respect to such breaches of representations and warranties exceeds the Threshold, in which case Buyer will be liable for the aggregate amount of the Losses over and above the Deductible. The maximum aggregate obligation of (i) the Seller Parties for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i), and (ii) Buyer for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed $1,200,000 (the “Cap”). Neither the Threshold nor the Cap shall apply to Losses arising in respect of claims for misrepresentations and breach of the Fundamental Representations.
(d) In no event shall the limitations set forth in Section 7.2(c) apply to Losses suffered or incurred by any Indemnified Party as a result of, or arising out of, (A) the matters set forth in Sections 7.2(a)(ii) through 7.2(a)(vii), or 7.2(b)(ii) or (iii), or (B) any third party claim made against an Investor Entity relating to any transaction fraud or intentional misrepresentation by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documentsa party. Notwithstanding anything any provision to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 except with respect to fraud or intentional misrepresentation by Seller Parties, in no event shall the aggregate liability of the Seller Parties for any Losses arising from or otherwise payable hereunder relating to this Agreement exceed the aggregate amounts paid by Buyer to Seller Parties, including that amount paid as a result of a breach of its representations and warranties Final Closing Consideration.
(other than any Losses resulting from breaches of the e) The representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which the Ancillary Agreements shall not be subject to the Deductible affected or Limit) diminished by, and no right of indemnification hereunder shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; limited by reason of any investigation or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on audit conducted before or after the Closing Dateor the knowledge of any party of any breach of a representation, warranty, covenant or agreement by the other party at any time, or the decision of any party to complete the Closing.
(f) For purposes of calculating the amount of any Losses incurred in connection with any misrepresentation or breach of warranty, any and all references to material or Material Adverse Effect (or other correlative terms) shall be disregarded.
Appears in 1 contract
General Indemnification. (a) The Corporation shall Stockholder covenants and agrees to indemnify, defend defend, protect and hold each Investorharmless Buyer, its affiliatesthe Company, and each of their respective officers, directors, partnersstockholders, managing directors, affiliates, employees, agents, consultants, representativesassigns, successors and assigns affiliates (each individually, an "Investor EntityIndemnified Party" and collectively, "Indemnified Parties") harmless from, against and in respect of all liabilities, losses, claims, damages, punitive damages, causes of action, lawsuits, administrative proceedings (including informal proceedings), investigations, audits, demands, assessments, adjustments, judgments, settlement payments, deficiencies, penalties, fines, interest (including interest from the date of such damages) and against all Losses costs and expenses (as defined belowincluding without limitation reasonable attorneys' fees and disbursements of every kind, nature and description) (collectively, "Damages") suffered, sustained, incurred or suffered paid by an Investor Entity (whether incurred the Indemnified Parties in connection with, resulting from or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, directly or resulting from indirectly:
(ai) any breach of any representation or warranty of the representations, warranties, covenants Stockholder or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained Company set forth in this Agreement or any other Document and to willful misrepresentationSchedule or certificate, fraud delivered by or deceiton behalf of the Stockholder or the Company in connection herewith; or
(ii) any nonfulfillment of any covenant or agreement by the Stockholder or, which shall not be subject prior to the Deductible Closing Date, the Company, under this Agreement; or
(iii) the business, operations or Limitassets of the Company prior to the Closing Date or the actions or omissions of the Company's directors, officers, stockholders, employees or agents prior to the Closing Date, other than Damages arising from matters expressly disclosed in the Company Financial Statements, this Agreement or the Schedules to this Agreement; provided, that, no indemnification claim which could have been asserted under sub-section (i) shall or (ii) above but for materiality or knowledge qualifiers may be payable asserted under this subsection (aiii); or
(iv) until the time as such Losses shall aggregate matters disclosed on Schedules 3.23 (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"environmental matters), 3.25 (employee benefit plans), 3.26 (taxes), 3.27 (conformity with law; litigation); or
(v) the failure of the Stockholder to (A) obtain the consents of the ▇▇▇ contemplated by Section 5.6(d), (B) obtain the release of the Company's obligations under the Company Bond Documents as contemplated by Section 5.6(d) and then only (C) obtain the release of the Company's obligations under the Chase Mortgage and the indebtedness secured thereby as contemplated by Section 5.6(e); or
(vi) Intentionally omitted; and
(vii) any and all Damages incident to any of the foregoing or to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or enforcement of this Section 8.1(a).
(b) with respect Buyer covenants and agrees to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend defend, protect and hold harmless each Investor Entity the Stockholder from, against and in respect of all Damages suffered, sustained, incurred or paid by Stockholder in connection with, resulting from or arising out of, directly or indirectly:
(i) any and all Losses breach of any representation or warranty of Buyer set forth in this Agreement or any Schedule or certificate, delivered by or on behalf of Buyer in connection herewith; or
(as defined in Section 11.2 and not subject to ii) any Deductible nonfulfillment of any covenant or Limitagreement by Buyer under this Agreement; or
(iii) arising under Title IV of ERISAthe business, Section 302 of ERISA and Sections 412 and 4971 operations or assets of the Code which may be incurred by any Company following the Closing Date, or the actions or omissions of them arising out of the Company's directors, officers, stockholders, employees or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person agents (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or the Stockholder) after the Closing Date; and
(iv) any and all Damages incident to any of the foregoing or to the enforcement of this Section 8.1(b).
Appears in 1 contract
General Indemnification. The Corporation and each Existing Stockholder ("Indemnitors") shall jointly and severally indemnify, defend and hold each Investor, its affiliates, Investor and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor EntityIndemnitee") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity Indemnitee (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Common Stock or Preferred Shares or Conversion SharesStock) arising out of, relating to, to or resulting from (ai) any breach of any of the representations, warranties, covenants representations or agreements warranties made by it the Corporation or the Existing Stockholders in this Agreement or in any agreementcertificate or other instrument delivered pursuant hereto including, without limitation, the Documents, (ii) any breach of any of the covenants or agreements made by the Corporation or the Existing Stockholders in this Agreement or in any certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (biii) any third party claim made against an Investor Entity relating to any transaction by that certain letter of arrangement, dated June 30, 1998, between the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunderAccounting Firm and GSCP. Each Investor, severally and not jointly, The Investors shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns and the Existing Stockholders harmless against all Losses arising from the breach of any of its representations, warranties, the covenants or agreements of the Investors in this Agreement or in any certificate or other instrument delivered pursuant hereto, hereto including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, (a) any and all payments by the Indemnitors pursuant to this Section 9 with respect to breach of representations or warranties shall be limited to, in the aggregate, an amount equal to the Purchase Price, and no indemnification payment by the Corporation pursuant to this Section 11 Indemnitors with respect to any such Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the such time as all such Losses (exclusive of attorneys' fees or other expenses of investigation or defense) shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities to more than US$5,000,000 (the "Deductible")$500,000, and then only to the extent that such Losses, in the aggregate for all Investorsaggregate, exceed such amount; provided that neither of the Deductible; foregoing limitations on indemnity shall apply to or (b) count Losses arising with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess breaches of the Purchase Price representations and warranties in Section 2.22 or in Section 2.7, as they relate to Taxes; (b) the Corporation and the Existing Stockholders shall not be liable for any Losses incurred by the Investors as a result of a breach of the shares issued representation and warranty set forth in the last sentence of Section 2.3, to the extent that such Investor or its predecessors in interest Losses are eliminated as shown on Schedule 1.1 hereto a result of a purchase price adjustment pursuant to Section 1.10(a); and (as increased c) the Corporation and the Existing Stockholders shall not be liable for any Losses incurred by the amounts by which Investors as a result of a breach of the Series A Non-Voting Liquidation Valuerepresentations set forth in Section 2.22 or in Section 2.7, as defined in the Terms of the Series A Non-Voting Preferred Sharesthey relate to Taxes, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether extent that such Losses arise out are eliminated as a result of or relate a payment to any event or state the Corporation by the Existing Stockholders of facts occurring or existing before, on or after an amount owing to the Closing DateCorporation pursuant to Section 10.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Transaction Information Systems Inc)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representationsSellers hereby jointly and severally indemnify and hold harmless Purchasers, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documentstheir Affiliates, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsand advisers, consultants, representatives, successors within the percentage liability set in Section 6.38 above and assigns harmless for the amount in excess of an initial cumulative allowance of €30,000 from and against all Losses losses, liabilities, costs, damages and expense (including reasonable legal fees and expenses) (collectively, “Losses”) suffered or incurred by any such indemnified party to the extent arising from the from, connected with or related to (i) breach of any representation or warranty of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary Sellers in this Agreement, no indemnification payment ; (ii) breach of any covenant or undertaking of Sellers in this Agreement; (iii) the Excluded Liabilities; and (iv) the Callaert Litigation;
(b) Sellers will be responsible for any opposition lodged by the Corporation pursuant to this Section 11 any of Sellers’ creditors with respect to any liability to be retained by Sellers and Sellers will proceed at their own cost satisfying any such creditor claims in such manner as to avoid Purchasers being obliged to satisfy the claims of any such creditors. Sellers will indemnify and hold harmless Purchasers for any liability, costs or expenses incurred by Purchasers with respect to any such claims; and
(c) Purchasers hereby jointly and severally indemnify and hold harmless Sellers, their Affiliates, and their respective officers, directors, employees and advisors within the percentage liability set in Section 6.38 above from and against all Losses otherwise payable hereunder as a result of a suffered or incurred by any such indemnified party to the extent arising from (i) breach of its any representation or warranty of Purchasers in this Agreement; and (ii) breach of any covenant or undertaking of Purchasers in this Agreement. All Losses suffered by one or more Affiliates of Purchasers (which will include Maco after the Closing) or one or more Affiliates of Sellers will be deemed to have been directly suffered by Purchasers or Sellers, as appropriate, on a dollar-for-dollar basis and will entitle Purchasers and Sellers to indemnification from the Indemnifying Party pursuant to Article VIII. Notwithstanding Section 8(a) and 8(b) above, Sellers shall have no liability for any Losses in excess of €7,000,000; however, this limit shall not apply to (a) any breach of any Sellers’ representations and warranties of which Seller had actual knowledge at any time prior to the date on which such representation and warranty is made; (other than b) any intentional violation by Seller of any covenant or obligation; or (c) the Callaert Litigation and any agency or distributor contract disputes against Maco or its successor or assigns. Notwithstanding Section 8(c) above, Purchasers shall have no liability for any Losses resulting from breaches in excess of the €1,000,000; however this limit shall not apply to (a) any breach of any Purchasers’ representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to of which Purchasers had actual knowledge at any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject time prior to the Deductible or Limit) shall be payable (a) until the time as date on which such Losses shall aggregate (on a cumulative basis representation and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), warranty is made; and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess any intentional violation by Purchasers of the Purchase Price of the shares issued to such Investor any covenant or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Dateobligation.
Appears in 1 contract
General Indemnification. (a) The Corporation provisions of this Section 10.1 shall indemnifynot apply to any Losses based upon, defend attributable to or resulting from (i) the failure of any representation or warranty contained in Section 4.23 to be true and correct, any Environmental Claim, Environmental Liability or Remedial Action (including the Rockwell Obligations or the Ludwigshafen Contract), any Asbestos Claim or any Predecessor Environmental Liabilities, which shall instead be governed exclusively by the provisions of Section 10.3 or (ii) the failure of any representation or warranty contained in Section 4.11 to be true and correct or Taxes, which shall instead be governed exclusively by the provisions of Section 10.6. For the avoidance of doubt, Sellers shall have no obligation to indemnify the Purchaser Indemnified Parties (as defined below) for any matter which arises solely due to the Purchaser Restructuring Transactions.
(b) Subject to Sections 10.1, 10.2, 10.4 and 10.5 hereof, from and after the Closing Date, Sellers hereby agree to jointly and severally indemnify and hold each InvestorPurchaser, its affiliates, the Companies and each of their respective officersthe wholly-owned Subsidiaries (collectively, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity"the “Purchaser Indemnified Parties”) harmless from and against any and all Losses based upon, attributable to or resulting from:
(i) the failure of any representation or warranty of Sellers or Invensys set forth in Article IV or V hereof or any representation or warranty contained in any certificate delivered by or on behalf of Sellers or Invensys pursuant to this Agreement, to be true and correct in all respects as defined belowof the date made;
(ii) incurred the breach of any covenant or suffered by an Investor Entity other agreement on the part of Invensys or Sellers under this Agreement;
(whether incurred iii) any matters in respect of the business or suffered directly or indirectly through ownership assets of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, Sellers not relating to, or resulting from forming part of, the Metering Business;
(aiv) any breach liabilities imposed upon or assessed under Title IV of ERISA solely as a result of any of the representationsCompanies or the Subsidiaries being considered an ERISA Affiliate of Invensys Inc. or any of its Affiliates, warrantiesincluding any liabilities under the Retained Plan retained by Sellers pursuant to Section 7.3(g) hereof;
(v) the Seller Restructuring Transactions;
(vi) any matter relating to pensions, covenants benefits or agreements made by it welfare plans (including retiree health and medical benefits) in this Agreement respect of the Companies or the Metering Business attributable to Retired Employees or Inactive Employees on or prior to the Closing Date;
(vii) any Retroactive Insurance Adjustments;
(viii) the Legal Proceedings described in any agreementItem 3 (Minority Shareholder Litigations) under “Rest of World” in Schedule 4.21 and the Legal Proceedings described in Items 1 (Trodden), certificate or other instrument delivered pursuant hereto including2 (▇▇▇▇▇▇▇▇), 3 (▇.▇. ▇▇▇▇▇▇) and 4 (▇.▇. ▇▇▇▇▇▇) under “United States” in Schedule 4.25(a), without limitationreduction by any reserves therefor; and
(ix) the Legal Proceedings described in Items 2 (▇▇▇▇▇▇▇▇▇▇), the Documents3 (Ro-Lab American Rubber) and 4 (▇▇▇▇▇ Building) under “United States” and Item 2 (Brunata) under “Rest of World” in Schedule 4.21 and Item 2 (PolluCom E) under “Rest of World” in Schedule 4.25(a) and in Item 1 (Models 143-80-4 and 143-80-6 Recalls) in Schedule 4.25(b), and (b) any third party claim made against an Investor Entity relating to any transaction without reduction by the Corporation financed reserves therefor, but only up to $1,500,000 in whole or in partthe aggregate.
(c) Subject to Sections 10.2, directly or indirectly10.4 and 10.5 hereof, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend Purchaser hereby agrees to indemnify and hold the Corporation, its affiliates, Sellers and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties wholly-owned subsidiaries (other than any Losses resulting the Companies) harmless from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses based upon, attributable to or resulting from:
(i) the failure of any representation or warranty of Purchaser set forth in Article VI, or any representation or warranty contained in any certificate delivered by or on behalf of Purchaser pursuant to this Agreement, to be true and correct as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code date made;
(ii) the breach of any covenant or other agreement on the part of Purchaser under this Agreement;
(iii) any Losses for which may be incurred Sellers are not indemnifying Purchaser, including any and all Losses arising out of , based upon or relating to Purchaser’s operation of the Metering Business or Purchaser’s ownership of the Shares, in each case, arising after the Closing Date and which do not constitute a breach by Sellers of any of them representation, warranty, covenant or agreement set forth herein;
(iv) any Losses arising out of or relating to any WFI Entity being the Replacement Plan or having been an ERISA Affiliate Purchaser’s obligations thereunder in accordance with any other Person Section 7.3(g) hereof; and
(other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after v) the Closing DatePurchaser Restructuring Transactions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sensus Metering Systems Inc)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach Subject to the provisions of any of this Article 10, from and after the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitationClosing Date, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each InvestorSellers, severally and not jointly, shall hereby agree to indemnify, defend and hold the Corporation, its affiliates, harmless WIMC and all of WIMC’s Affiliates and each of their respective directors, officers, directors, employees, agents, consultants, representativesequityholders, successors and assigns harmless (each, a “WIMC Indemnified Party” and, collectively, the “WIMC Indemnified Parties”), from and against any and all Losses incurred or suffered by any WIMC Indemnified Party arising out of, based upon or resulting from any of the following:
(i) any breach of any of its representationsrepresentation or warranty contained in or referred to in Article 3 (other than the representations and warranties contained in Section 3.15), warranties, covenants or agreements in this Agreement Article 4 or in any certificate delivered by or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by on behalf of any Seller or the Corporation pursuant to this Section 11 with respect 9.1;
(ii) any breach by any Seller or the Corporation of, or any failure of any Seller or the Corporation to perform, any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7covenants, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants agreements or obligations contained in or made pursuant to this Agreement or Agreement; or
(iii) any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable Excess Transaction Expenses (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in not deducted from the aggregate for all Investors, exceed the Deductible; or Purchase Price pursuant to Article 2).
(b) with respect Subject to the Investor Entities associated with each Investorprovisions of this Article 10, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from and after the Closing Date Date, WIMC hereby agrees to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity Seller and their respective Affiliates, and each of their respective directors, officers, employees, agents, equityholders, successors and assigns (each, a “Seller Indemnified Party” and, collectively, the “Seller Indemnified Parties”), from and against any and all Losses incurred or suffered by any Seller Indemnified Party arising out of, based upon or resulting from any of the following:
(i) any breach of any representation or warranty contained in or referred to in Article 5 or in any certificate delivered by or on behalf of WIMC pursuant to Section 9.2;
(ii) any breach by Buyer of, or any failure of Buyer to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Agreement; or
(iii) any Business operations conducted after the Closing.
(c) If a Person entitled to indemnification under this Article 10 (the “Indemnified Party”) shall incur or suffer any Losses in respect of which indemnification may be sought under this Article 10 against the Person(s) required to provide indemnification under this Article 10 (collectively, the “Indemnifying Party”), the Indemnified Party shall assert a claim for indemnification by promptly providing a written notice (the “Notice of Loss”) to the Indemnifying Party (or in the case of any notice required to be given to a Seller, to the Sellers’ Representative) stating, in reasonable detail, the nature and basis of such Notice of Loss. The Notice of Loss shall be provided to the Indemnifying Party as defined soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss. Notwithstanding the foregoing but subject to Section 10.2, any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss in a timely manner as aforesaid, shall not relieve any Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 10.1 except to the extent that the ability of such Indemnifying Party to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss. If the Notice of Loss relates to a Third Party Claim, the procedures set forth in Section 11.2 10.1(d) shall be applicable. If the Notice of Loss does not relate to a Third Party Claim, the Indemnifying Party shall have thirty (30) days from the date of receipt of such Notice of Loss to object to any of the subject matter and any of the amounts of the Losses set forth in the Notice of Loss, as the case may be, by delivering written notice of objection thereof to the Indemnified Party. If the Indemnifying Party fails to send a notice of objection to the Notice of Loss within such 30 day period, the Indemnifying Party shall be deemed to have agreed to the Notice of Loss and shall be obligated to pay to the Indemnified Party the portion of the amount specified in the Notice of Loss to which the Indemnifying Party has not objected. If the Indemnifying Party sends a timely notice of objection, the Indemnifying Party and the Indemnified Party shall use their commercially reasonable efforts to settle (without an obligation to settle) such claim for indemnification. If the Indemnifying Party and the Indemnified Party do not settle such dispute within thirty (30) days after the Indemnified Party’s receipt of the Indemnifying Party’s notice of objection, the Indemnifying Party and the Indemnified Party shall be entitled to seek enforcement of their respective rights under this Article 10.
(d) Promptly after receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any action, suit or proceeding by a third party (a “Third Party Claim”) in respect of which the Indemnified Party shall seek indemnification hereunder, the Indemnified Party shall so notify in writing the Indemnifying Party, but subject to Section 10.2 any Deductible failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 10.1 except to the extent that the ability of the Indemnifying Party to defend the Third Party Claim is materially prejudiced by the Indemnified Party’s failure to give such notice. In no event shall the Indemnified Party admit any Liability with respect to such Third Party Claim or Limitsettle, compromise, pay or discharge such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. With respect to any such claim as to which the Indemnifying Party has acknowledged in writing the obligation to indemnify the Indemnified Party hereunder, the Indemnifying Party shall have the right to assume the defense (at the expense of the Indemnifying Party) arising of any such claim through counsel chosen by the Indemnifying Party by notifying the Indemnified Party within thirty (30) days after the receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, that any such counsel shall be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party; provided, that the Indemnified Party (at the expense of the Indemnifying Party) shall have the right to employ counsel to represent it at the expense of the Indemnifying Party if there are one or more legal defenses available to the Indemnified Party that are different from or additional to those available to any Indemnifying Party or if there is otherwise a potential conflict between the interests of the Indemnified Party and any Indemnifying Party, in which event the reasonable fees and expenses of such separate counsel shall be paid by the Indemnifying Party. The Indemnifying Party agrees to render to the other parties such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such claim, which assistance shall include, to the extent reasonably requested by a party, the retention, and the provision to such party, of records and information reasonably relevant to such Third Party Claim, and making employees of the other party available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnifying Party may not settle, compromise, or offer to settle or compromise, or otherwise dispose of any Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed unless such settlement includes only the payment of monetary damages (which are fully paid by the Indemnifying Party), does not impose any injunctive or equitable relief upon the Indemnified Party, does not require any admission or acknowledgment of liability or fault of the Indemnified Party and contains an unconditional release of the Indemnified Party in respect of such claim. Neither the Indemnified Party nor any of its Affiliates may settle, compromise, or offer to settle or compromise, or otherwise dispose of any Third Party Claim for which the Indemnifying Party may have a Liability under Title IV this Agreement without the prior written consent of ERISAthe Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(e) With respect to any claim as to which the Indemnifying Party shall have acknowledged in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party hereunder, after written notice by the Indemnifying Party to the Indemnified Party of the election by the Indemnifying Party to assume control of the defense of any such Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any costs or fees subsequently incurred by such Indemnified Party in connection with the defense thereof, except if the Indemnified Party has the right to employ counsel to represent it at the expense of the Indemnifying Party as set forth in Section 10.1(d). If the Indemnifying Party does not assume control of the defense of such Third Party Claim within thirty (30) days after the receipt by the Indemnifying Party of the notice required pursuant to Section 10.1(d) as provided above, the Indemnified Party shall have the right to defend such claim in such manner as it may deem appropriate at the reasonable cost and expense of the Indemnifying Party. The party controlling the defense of any Third Party Claim shall in any event defend any such matters vigorously and in good faith.
(f) Notwithstanding anything to the contrary contained in this Section 10.1, to the extent there is any inconsistency between this Section 10.1(e) and Section 10.5 as to any Tax Claim, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date10.5 shall control.
Appears in 1 contract
Sources: Stock Purchase Agreement (Walter Investment Management Corp)
General Indemnification. The Corporation (a) From and after the Closing, subject to the limitations and other provisions set forth in this Article 9, each Seller shall indemnify, defend and hold each InvestorBuyer, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns Affiliates (each an "Investor Entity"including the Group Companies) harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, stockholders, agents, consultantsattorneys accountants, representatives, successors successors, and permitted assigns (each, a “Buyer Indemnitee” and together, the “Buyer Indemnitees”) harmless from and against all Losses arising from the breach any damages, losses, Liabilities, obligations, Taxes, claims of any of its representationskind, warrantiesinterest or expenses (including reasonable attorneys’ fees and expenses) (“Loss”), covenants in each case actually incurred, suffered by or agreements in this Agreement or in any certificate or other instrument delivered pursuant heretoasserted against a Buyer Indemnitee, including, without limitation, the Documents. Notwithstanding anything to the contrary extent directly or indirectly arising out of or resulting from:
(i) any misrepresentation in or breach or inaccuracy of (A) such Seller’s Individual Seller Fundamental Representations; (B) Company Fundamental Representations, (C) the representations and warranties of such Seller (other than such Seller’s Individual Seller Fundamental Representations) set forth in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties or (other than any Losses resulting from breaches of D) the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained of the Company (other than the Company Fundamental Representations) set forth in this Agreement or any Ancillary Document;
(ii) any breach or nonfulfillment of any covenant, agreement or other Document obligation of such Seller set forth in this Agreement or any Ancillary Document;
(iii) any breach or nonfulfillment of any covenant, agreement or other obligation of the Company set forth in this Agreement or any Ancillary Document; or
(iv) any Pre-Closing Taxes.
(b) The obligation to provide indemnification under Section 9.2(a) other than with respect to Section 9.2(a)(i)(A), Section 9.2(a)(i)(C) and Section 9.2(a)(ii), shall be pro rata in accordance with each Seller’s Percentage Allocation (such that the total amount of such indemnity is equal to willful misrepresentation100% of the applicable Losses but, fraud or deceit, which shall not be other than with respect to Fraud (but subject to the Deductible or Limitlast sentence of Section 9.5 in respect of AIG), recovery by Buyer shall not in any event exceed the Final Purchase Price). The obligation to provide indemnification pursuant to Section 9.2(a)(i)(A), Section 9.2(a)(i)(C) and Section 9.2(a)(ii) shall be payable (a) until borne solely by the time applicable Seller to whom such representation or obligation, as such Losses applicable, relates. Each Seller’s obligation to provide indemnification pursuant to this Section 9.2 shall aggregate (on a cumulative basis be several and not on a per item basisjoint.
(c) for all Investor Entities more than US$5,000,000 (From and after the "Deductible")Closing, and then only subject to the extent that such Losseslimitations and other provisions set forth in this Article 9, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation Buyer shall also indemnify, defend and hold the Sellers, their Affiliates and each of their respective officers, directors, employees, stockholders, agents, attorneys accountants, representatives, successors, and permitted assigns (each, a “Seller Indemnitee” and together, the “Seller Indemnitees”) harmless each Investor Entity from any Loss incurred, suffered by or asserted against any and all Losses (as defined in Section 11.2 and not subject a Seller Indemnitee, to any Deductible the extent directly or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them indirectly arising out of or relating resulting from:
(i) any misrepresentation in or breach or inaccuracy of (A) Buyer Fundamental Representations or (B) the other representations and warranties of Buyer set forth in this Agreement; or
(ii) any breach or nonfulfillment of any covenant, agreement or other obligation of Buyer set forth in this Agreement.
(d) Nothing in this Article 9 shall affect or limit the ability of Buyer to recover under the R&W Insurance for any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Datematters covered thereunder.
Appears in 1 contract
Sources: Unit Purchase Agreement (White Mountains Insurance Group LTD)
General Indemnification. The Corporation (a) Subject to the provisions of Section 7.1 above, Level 8 (with respect to the first $1,000,000 of "Claims," as hereinafter defined, to be paid to the Buyer pursuant to this Section 7.2) and the Seller (with respect to all Claims in excess of $1,000,000) shall indemnify, defend indemnify and hold each Investor, its affiliatesharmless the Buyer from and against, and each shall reimburse Buyer on demand for, any claim, loss, liability, damage or expense, including attorneys' fees and costs of their respective officersappeals (a "Claim"), directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (ai) any breach of any representation, warranty, agreement or covenant on the part of the representations, warranties, covenants Seller under or agreements made by it in pursuant to this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the DocumentsAgreement, and (ii) any Excluded Liabilities; provided that each Claim shall be satisfied by the reduction of amounts due under the Note, to the extent of the principal balance of the Note at the time of such Claim.
(b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, The Buyer shall indemnify, defend indemnify and hold harmless the Corporation, its affiliatesSeller from and against, and each of their respective officersshall reimburse Seller on demand for, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising any Claim resulting from the (i) any breach of any representation, warranty, agreement or covenant on the part of the Buyer under or pursuant to this Agreement, (ii) any Assumed Liabilities and (iii) any liabilities and obligations of the Buyer incurred with respect to its representationsoperation of the Business after the Closing.
(c) No party shall have any obligation to indemnify the other party against any Claim under Section 7.2(a) or 7.2(b) above unless (i) the amount of such Claim is equal to or greater than $25,000 and (ii) the sum of such Claim plus all other Claims by such party is equal to or greater than $50,000, warranties, covenants or agreements at which point such party shall be indemnified against all Claims relating back to the first dollar. The indemnities set forth in this Agreement Article VII shall be the sole and exclusive remedy of each party for damages for breach of any covenant, representation or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary warranty contained in this Agreement, no provided, however, that nothing set forth herein shall be deemed to limit either party's right to seek equitable relief or specific performance. EXCEPT AS PROVIDED IN THIS AGREEMENT, THE BUYER AND THE SELLER MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(d) If a third party asserts a claim against any indemnified party for which indemnification payment by the Corporation pursuant to would be available under this Section 11 with respect to any Losses otherwise payable hereunder as 7.2 hereof (a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "DeductibleClaim"), and then only the indemnified party shall promptly give notice of such Claim, describing such Claim with reasonable specificity, to the indemnifying party; provided, however, that the failure to give such notice shall not affect the right of the indemnified party to indemnification hereunder except to the extent that such Lossesfailure prejudices the ability of the indemnifying party to defend any Claim or take any other remedial action. The indemnifying party shall be entitled to assume the defense of such Claim, including the employment of counsel reasonably satisfactory to the indemnified party; provided, however, that in the event that the indemnified party reasonably determines in good faith that its interests with respect to such Claim cannot appropriately be represented by the indemnifying party, such indemnified party shall have the right to assume control of the defense of such Claim and to have its expenses reimbursed promptly with respect to such Claim. In addition, in the aggregate event that such indemnifying party, within a reasonable time after notice of any such Claim, fails to defend any indemnified party, such indemnified party will (upon further notice to such indemnifying party) have the right to undertake its defense of such Claim for all Investors, exceed the Deductible; or (b) account of such indemnifying party and to have its expenses reimbursed promptly with respect to such Claim. Regardless of which party is controlling the Investor Entities associated with each Investordefense of any Claim, (i) both the indemnifying party and the indemnified party shall act in an aggregate amount in excess good faith and (ii) no settlement of such Claim may be agreed to without the written consent of the Purchase Price indemnifying party, which consent shall not be unreasonably withheld. The controlling party shall deliver, or cause to be delivered, to the other party copies of all correspondence, pleadings, motions, briefs, appeals or other written statements relating to or submitted in connection with the shares issued defense of any such Claim, and timely notices of any hearing or other court proceeding relating to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateClaim.
Appears in 1 contract
General Indemnification. The Corporation shall indemnify, defend (a) Each of CND and the Shareholders hereby jointly and severally agree to indemnify and hold each Investor, harmless the Purchaser and its affiliates, Affiliates and each of their respective officers, directors, partners, managing directors, affiliatesofficers, employees, agents, consultants, representatives, successors and assigns (each an collectively, the "Investor EntityPurchaser Indemnified Parties") harmless from and against and in respect of any and all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) resulting from, arising out of, based on or relating to:
(i) the failure of any representation or warranty of CND set forth in this Agreement, any Seller Document or resulting from any certificate or instrument delivered by or on behalf of CND pursuant to this Agreement to be true and correct in all respects both on the date hereof and on and as of the Closing Date;
(aii) any the breach of any covenant or other agreement on the part of CND and the representations, warranties, covenants or agreements made by it in Shareholders under this Agreement or in any agreementSeller Document;
(iii) any Excluded Liabilities; or
(iv) the Excluded Assets or the ownership, certificate operation, lease or use thereof, or any action taken with respect thereto, by CND or any other instrument delivered pursuant hereto including, without limitation, the Documents, and Person.
(b) any third party claim made against an Investor Entity relating Purchaser hereby agrees to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend indemnify and hold the Corporation, harmless CND and its affiliatesAffiliates, and each of their respective directors, officers, directors, employees, agents, consultants, representatives, successors and assigns harmless from and against and in respect of any and all Losses resulting from, arising from out of, based on or relating to:
(i) the breach failure of any of its representations, warranties, covenants representation or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches warranty of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained Purchaser set forth in this Agreement or any other Purchaser Document or any certificate and to willful misrepresentation, fraud instrument delivered by or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess behalf of the Purchase Price of the shares issued Purchaser pursuant to such Investor or its predecessors this Agreement, to be true and correct in interest as shown all respects both on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date hereof and on and as of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date;
(ii) the breach of any covenant or other agreement on the part of the Purchaser under this Agreement or any Purchaser Document; or
(iii) any Assumed Liabilities.
(c) Notwithstanding any other provision to this Section 9.2, the liability for a breach of the Non-Competition Agreement or inaccuracy of the representation set forth in Section 4.30 hereof by any Shareholder shall be limited to the breaching Shareholder.
Appears in 1 contract
General Indemnification. The (a) If, after the Closing Date, Parent, the Surviving Corporation or their officers, directors, employees, affiliates or agents (each a “Buyer Indemnitee” and together the “Buyer Indemnitees”) suffer any damages, losses, liabilities, obligations, claims of any kind, interest, taxes, costs or expenses (including, without limitation, the costs of enforcing this Section 8.2(a) and reasonable attorneys’ fees and expenses, lost profits due to restricted or stop ship orders from the FDA or other regulatory bodies and the costs of recertification with a regulatory body) (“Loss”) as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by the Company (A) contained in this Agreement to be true and correct as of the date of this Agreement or (B) in any certificate delivered to Parent and Newco pursuant to Section 6.2 to be true and correct as of the Closing Date, (ii) any breach by the Company of any of its covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date, (iii) the assertion of any liability or obligation relating to or arising out of the business, operations or assets of, or any products sold by, the Company or the Subsidiary at or prior to the Closing (except to the extent such liabilities and obligations are reserved in the finally determined Net Assets), (iv) the Recall Matters (except to the extent reserved in the finally determined Net Assets), (v) Dissenting Shares (in excess of the applicable portion of the Purchase Price), (vi) the failure by the Company or the Subsidiary, as appropriate, to file a 510(k) premarket notification (or an amendment thereto) with the FDA with respect to any products of the Company or the Subsidiary, (vii) the rescission or cancellation of, or denial of any claim under, any insurance policies owned or held by the Company and the Subsidiary as a result of the failure of the Company or the Subsidiary to timely report any claim to the carrier of such policy, including, without limitation, claims relating to the matters set forth in Section 3.9 of the Disclosure Schedule or (viii) the failure by the Company or the Subsidiary to timely (A) file any Tax Return with respect to any sales, use or income taxes payable to any state taxing authority or (B) pay all sales, use or income taxes payable to any state taxing authority, then, subject to the other provisions of this Article VIII, such Buyer Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the Escrow Account.
(b) After the Closing, each of Parent and the Surviving Corporation agrees to indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in direct and indirect equityholders of the Company as of the date of this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsaffiliates or agents (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from any Loss suffered or paid, consultantsdirectly or indirectly, representativesas a result of, successors in connection with, or arising out of (i) the failure of any representation or warranty made by Parent or Newco (A) in this Agreement contained in Article IV of this Agreement to be true and assigns harmless against all Losses arising from correct as of the date of this Agreement or (B) in any certificate delivered to the Company pursuant to Section 6.3 to be true and correct as of the Closing Date, (ii) any breach by Parent of any of its representations, warranties, covenants or agreements in this Agreement or in contained herein, and (iii) any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment breach by the Surviving Corporation pursuant to this Section 11 with respect to (including by way of being the successor of Newco and the Company) of any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate covenants or agreements contained herein which are to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased performed by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Surviving Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.
(c) The obligations to indemnify and hold harmless pursuant to clause (i) of Section 8.2(a) and pursuant to clause (i) of Section 8.2(b) shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 8.1, except for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims shall survive until final resolution thereof.
Appears in 1 contract
General Indemnification. The Corporation shall 10.1.1. Each of the Sellers (and the Company in the event this Agreement is terminated prior to the Closing) hereby jointly and severally agree to indemnify, defend and hold each Investor, its affiliates, harmless Purchaser (and the Company in the event the Closing occurs) and each of their respective directors, officers, directors, partners, managing directorsemployees, affiliates, employees, agents, consultants, representatives, successors agents and assigns (each an "Investor Entity") harmless shareholders from and against any and all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, based upon or resulting from (a) any inaccuracy of any representation or warranty of any Seller or the Company which is contained in or made pursuant to this Agreement; (b) any breach by any Seller or the Company of any of their agreements or obligations contained in or made pursuant to this Agreement; (c) any breach by any officer or director of the Company of any fiduciary duty owed by such officer or director to any shareholder of the Company, which breach occurred prior to, in connection with or as a result of the Closing and the transactions contemplated to take place at Closing; and (d) any and all Third Party Litigation arising out of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documentsforegoing. Notwithstanding anything to the contrary in this Agreementcontained herein, (x) Shareholder F shall have no indemnification payment by the Corporation pursuant obligation to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless the Purchaser or anyone else with respect to any inaccuracy of the representations set forth in Section 4.5 (a) or Section 4.5 (c) and (y) Shareholder G shall have no obligation to indemnify, defend and hold harmless the Purchaser or anyone else with respect to any inaccuracy of the representations set forth in Section 4.5 (a) or Section 4.5 (b).
10.1.2. Purchaser (and the Company in the event the Closing occurs) hereby jointly and severally agree to indemnify, defend and hold harmless Sellers and the Company and each Investor Entity of its directors, officers, employees, affiliates, agents and shareholders from and against any and all Losses arising out of, based upon or resulting from (as defined i) any inaccuracy of any representation or warranty of Purchaser which is contained in Section 11.2 or made pursuant to this Agreement, (ii) any breach of Purchaser of any of its agreements or obligations contained in or made pursuant to this Agreement, or (iii) any and not subject to any Deductible all Losses arising out of, based upon or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 resulting from the operations or conduct of the Code which may be incurred by any Business of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, the Company and its Subsidiaries on or and after the Closing Date, except to the extent that Sellers are liable for the same pursuant to Section 10.1.1.
10.1.3. Promptly after receipt by any person entitled to indemnification under this Section 10.1 (an "indemnified party") of notice of the commencement of any action in respect of which the indemnified party will seek indemnification hereunder, the indemnified party shall so notify in writing the person(s) from whom indemnification hereunder is sought (collectively, the "indemnifying party"), but any failure so to notify the indemnifying party shall not relieve it from any liability that it may have to the indemnified party under this Section 10.1 except to the extent that the indemnifying party's ability to defend such claim is materially prejudiced by the failure to give such notice. The indemnifying party shall be entitled to participate in the defense of such action and to assume control of such defense; provided, however, that: Execution
(a) the indemnified party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim;
(b) the indemnifying party shall obtain the prior written approval of the indemnified party before entering into any settlement of such claim or ceasing to defend against such claim, if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief would be imposed against the indemnified party;
(c) the indemnifying party shall not consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release from liability in respect of such claim; and
(d) the indemnified party shall not admit any liability with respect thereto or settle, compromise, pay or discharge the same without the prior written consent of the indemnifying party, which shall not be unreasonably withheld;
(e) the indemnified party shall cooperate with the indemnifying party in the contest or defense thereof; and
(f) the indemnifying party shall not be entitled to control but shall be entitled to participate at its own expense in the defense of, and the indemnified party shall be entitled to have sole control at its own expense over, the defense or settlement of any claim to the extent the claim seeks an order, injunction or other equitable relief against the indemnified party which, if successful, could materially interfere with the business, operations, assets, condition or prospects of the indemnified party.
10.1.4. After written notice by the indemnifying party to the indemnified party of its election to assume control of the defense of any such action, the indemnifying party shall not be liable to such indemnified party hereunder for any Legal Expenses subsequently incurred by such indemnified party in connection with the defense thereof. If the indemnifying party does not assume control of the defense of such claims as provided in this Section 10.1.4, the indemnified party shall have the right to defend such claim in such manner as it may deem appropriate at the reasonable cost and expense of the indemnifying party, and the indemnifying party will promptly reimburse the indemnified party therefor in accordance with this Section 10.1.
Appears in 1 contract
Sources: Stock Purchase Agreement (Systems & Computer Technology Corp)
General Indemnification. (a) The Corporation Seller, from and after the Initial Closing, the SOP Closing, the Tranche 1 Earn-Out Closings and the Tranche 2 Earn-Out Closings, shall indemnifydefend, defend protect, indemnify and hold each Investorharmless the Purchaser, its affiliates, Affiliates and each of their respective officers, directors, partnersemployees and agents (collectively, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity"“Purchaser Indemnified Persons”) harmless from and against any and all Losses actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses (including reasonable attorneys’ fees and disbursements) in connection therewith (collectively, the “Indemnified Liabilities”), incurred by the Purchaser as defined below) incurred a result or suffered by an Investor Entity (whether incurred consequence of or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, : (i) any misrepresentation or resulting from (abreach of any representation or warranty made by the Seller in this Agreement;(ii) any breach of any covenant, agreement or obligation of the representations, warranties, covenants or agreements made by it Seller contained in this Agreement; (iii) the Excluded Liabilities or the assertion thereof against any of the Purchaser Indemnified Persons (the “Excluded Liabilities Assertion”); (iv) the Reorganization (the “Reorganization Liabilities”); or (v) any claim or determination by the Mainland China Tax Authority that the Purchaser be responsible for any withholding or deduction in respect of delivery of Consideration Shares under this Agreement or in (and any agreementrelated penalties, certificate or other instrument delivered pursuant hereto includingcharges, without limitationsurcharges, fines and interest relating thereto) (the Documents, and “Withholding Tax Liabilities”).
(b) any third party claim made against an Investor Entity relating to any transaction by The Purchaser, from and after the Corporation financed in whole or in partInitial Closing, directly or indirectlythe SOP Closing, with proceeds from the sale of any of Tranche 1 Earn-Out Closings and the Series A NonTranche 2 Earn-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointlyOut Closings, shall indemnifydefend, defend protect, indemnify and hold harmless the CorporationSeller, its affiliates, Affiliates and each of their respective officers, directors, employeesemployees and agents (collectively, agents, consultants, representatives, successors “Seller Indemnified Persons”) from and assigns harmless against any and all Losses Indemnified Liabilities incurred by the Seller as a result of or arising from the out of (i) any misrepresentation or breach of any of its representations, warranties, covenants representation or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, warranty made by the Documents. Notwithstanding anything to the contrary Purchaser in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to (ii) any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches covenant, agreement or obligation of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants Purchaser contained in this Agreement or any other Document and to willful misrepresentationAgreement, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (biii) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess Assumed Liabilities or the assertion thereof against any of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateSeller Indemnified Persons.
Appears in 1 contract
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach Subject to the terms and conditions of any of the representationsthis Article VII, warrantiesSellers, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, jointly and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointlyseverally, shall indemnify, defend and hold the Corporationharmless Buyer and its directors, its affiliates, and each of their respective officers, directorsAffiliates, employees, agentsagents and representatives (collectively, consultantsthe “Buyer Indemnified Parties”), representatives, successors from and assigns harmless against all Losses arising from the breach of that are incurred or suffered by any of its representationsthem in connection with or resulting from any of the following:
(i) any breach of, warrantiesor inaccuracy in, covenants any representation or agreements in this Agreement or in warranty made by any certificate or other instrument delivered pursuant hereto, Seller (including, without limitationfor the avoidance of doubt, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained Key Seller) in this Agreement or any other Document and to willful misrepresentationAncillary Agreement;
(ii) any breach of any covenant made by any Seller in this Agreement or any Ancillary Agreement;
(iii) any Closing Indebtedness, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Lossesnot taken into account in determining the Final Adjusted Purchase Price;
(iv) any Transaction Expense, to the extent not taken into account in determining the aggregate for all Investors, exceed Final Adjusted Purchase Price;
(v) any matter identified on Schedule 3.13;
(vi) the DeductibleLeased Vehicles or either Seller’s use thereof after the Closing; or or
(vii) the enforcement by any Buyer Indemnified Party of its indemnification rights under this Agreement.
(b) with respect Subject to the Investor Entities associated with each Investorterms and conditions of this Article VII, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation Buyer shall also indemnify, defend and hold harmless each Investor Entity Sellers and their respective agents and representatives (collectively, the “Seller Indemnified Parties”) from and against any and all Losses (as defined in Section 11.2 and not subject to any Deductible that are incurred or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred suffered by any of them arising out in connection with or resulting from any of the following:
(i) any breach of, or relating to inaccuracy in, any WFI Entity being representation or having been an ERISA Affiliate with warranty made by Buyer in this Agreement or any other Person Ancillary Agreement;
(other than another WFI Entity)ii) any breach of any covenant made by Buyer in this Agreement or any Ancillary Agreement; or
(iii) the enforcement by the Seller Indemnified Parties of their indemnification rights under this Agreement.
(c) The representations and warranties in this Agreement and the Ancillary Agreements shall not be affected or diminished by, whether such Losses arise out and no right of indemnification hereunder shall be limited by reason of, any investigation or relate to any event or state of facts occurring or existing before, on audit conducted before or after the Closing Dateor the knowledge of any Party of any breach of a representation, warranty, covenant or agreement by the other Party at any time, or the decision of any Party to complete the Closing.
(d) In calculating the amount of Losses recoverable from an Indemnifying Party, the amount of such Losses shall be reduced by the amount of any insurance proceeds actually received by the Indemnified Party in respect of the Losses net of (i) any deductible amounts and any reasonable costs and expenses actually incurred by the Indemnified Party in collecting such insurance proceeds, including reasonable attorneys’ fees, and (ii) any increase in insurance premiums reasonably attributable to insurance proceeds paid in respect of such Losses.
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the other provisions of this Article 9, after the Closing, the Escrow Participating Holders shall indemnify, defend and hold Parent and/or its respective officers, directors, employees, Affiliates and/or agents (each a “Parent Indemnitee”) harmless from any damages, losses, liabilities, obligations, Taxes, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys’ fees and expenses) (each a “Loss”) suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of (i) any breach of any representation or warranty (A) contained in Article 3 (read without reference to materiality or Company Material Adverse Effect) or (B) in any certificate delivered by the Company to Parent pursuant to this Agreement and (ii) any breach by the Company of any of the covenants or agreements contained herein which are to be performed by the Company or its Subsidiaries on or before the Closing Date.
(b) Subject to the other provisions of this Article 9, after the Closing, Parent and the Surviving Corporation, jointly and severally, shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, Escrow Participating Holders and/or its affiliates, and each of their respective officers, directors, employees, agentsAffiliates and/or agents (each a “Holder Indemnitee”) harmless from any Losses suffered or paid, consultantsdirectly or indirectly, representativesas a result of, successors and assigns harmless against all Losses in connection with, or arising from the out of (i) any breach of any representation or warranty (A) contained in Article 4 (read without reference to materiality or Parent Material Adverse Effect) or (B) in any certificate delivered by Parent to the Company pursuant to this Agreement and (ii) any breach by Parent or Merger Sub of its representations, warranties, any of the covenants or agreements in this Agreement contained herein which are to be performed by Parent or in any certificate Merger Sub on or other instrument delivered pursuant hereto, including, without limitation, before the Documents. Notwithstanding anything Closing Date.
(c) The obligations to the contrary in this Agreement, no indemnification payment by the Corporation indemnify and hold harmless pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches 9.2 shall survive the consummation of the representations and warranties transactions contemplated hereby for the applicable period set forth in Section 2.79.1, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject except for claims for indemnification asserted prior to the Deductible or Limit) end of such applicable period (which claims shall be payable (a) survive until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"final resolution thereof), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.
Appears in 1 contract
General Indemnification. The Corporation shall indemnify, defend From and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from after the Closing Date:
(a) any breach of any By the Sellers in Favor of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunderBuyer. Each InvestorSeller, severally and not jointlyjointly with respect to the representations contained in Article III and such Seller’s covenants and agreements contained in Section 6.3, shall indemnifybut jointly and severally with respect to the representations contained in Article IV and any covenants and agreements of the Sellers contained in this Agreement other than those in Section 6.3 up to the sum held in the Escrow Account and $1,000,000 of the principal amount of the Note (and severally and not jointly for any Damages payable hereunder in excess of the sum held in the Escrow Account and $1,000,000 of the principal amount of the Note), defend agrees to indemnify and hold harmless against and pay on behalf of or reimburse as and when incurred, the CorporationBuyer and its Affiliates, its affiliatesshareholders, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and permitted assigns harmless against (collectively, the “Buyer Indemnitees”) for any and all Losses arising from the Damages it may suffer, sustain or incur as a result of, in connection with, relating or incidental to or by virtue of:
(i) any facts or circumstances which constitute a breach of any of its representations, warranties, covenants representation or agreements warranty contained in Article IV under this Agreement or in any certificate the Company Consent to Warrant Purchase or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties any representation or warranty of such Seller contained in Article III under this Agreement;
(ii) any nonfulfillment or breach of any covenant, agreement or other than provision by the Company or such Seller;
(iii) any Losses resulting from breaches liabilities of the representations and warranties in Section 2.7, Company for Seller Expenses as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement of or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to following the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only Closing to the extent that such Losses, not included in Net Working Capital for purposes of the aggregate for all Investors, exceed adjustments set forth in Section 1.4; or
(iv) any claims against the Deductible; Company or (b) with respect to the Investor Entities associated with each Investor, in an aggregate Buyer arising out of the allocation of the amount in excess or form of consideration of the Purchase Price among the Sellers and the Warrant Holders that are party to the Warrant Purchase Agreement pursuant to Schedule 1.1 or the Warrant Purchase Agreement or otherwise. Notwithstanding anything contained herein, in no event shall the Company be required to provide indemnification or contribution for any obligation of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Sellers under this Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date8.1.
Appears in 1 contract
Sources: Securities Purchase Agreement (United American Healthcare Corp)
General Indemnification. The Corporation 9.1.1 Subject to Section 9.1.3 and the other Sections of this Article 9, Seller shall indemnifyindemnify Purchaser in respect of, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") it harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out ofagainst, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject suffered, incurred or sustained by Purchaser or any Group Company, or to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them becomes subject, resulting from, arising out of or relating to any WFI Entity being breach of warranty contained in Article 3 hereof or having been an ERISA Affiliate with non-fulfillment of or failure to perform any covenant on the part of Seller contained in this Agreement.
9.1.2 Subject to the other Person (other than another WFI Entity)Sections of this Article 9, whether such Purchaser shall indemnify Seller in respect of, and hold it harmless from and against, any and all Losses arise suffered, incurred or sustained by Seller or to which Seller becomes subject, resulting from, arising out of or relate relating to any event breach of warranty or state non-fulfillment of facts occurring or existing beforefailure to perform any covenant or agreement on the part of Purchaser contained in this Agreement or any document delivered hereunder.
9.1.3 Notwithstanding anything to the contrary contained in this Agreement, on no amounts of indemnity shall be payable as a result of any claim in respect of a Loss arising under Section 9.1.1:
(i) unless, with respect to any claim (including claims relating to substantially the same factual circumstances), such claim involves Losses in excess of twenty thousand Dollars (USD 20,000);
(ii) unless and until Purchaser or a Group Company, as the case may be, have suffered, incurred, sustained or become subject to Losses referred to in such paragraph in excess of one hundred thousand Dollars (USD 100,000) in the aggregate, in which case such Losses shall be redeemed in full;
(iii) if Purchaser and the Group Companies have received payments in respect of claims made under such paragraph of an amount equal to 20% of the Final Purchase Price in the aggregate; and
(iv) to the extent it arises from or was caused by actions taken or failed to be taken by Purchaser or any of its Affiliates after the Closing DateClosing; provided that the limitations contained in clauses (i) – (iii) shall not apply to Losses arising from breach of the Fundamental Warranties or the agreements and covenants of Seller contained in this Agreement, recovery for which in all cases in the aggregate shall be limited to an amount equivalent to the Final Purchase Price.
9.1.4 It is specifically agreed that the Swedish Sale of Goods Act (Sw: köplagen (1990:931)) or any other similar laws or legal principles shall not apply to this Agreement, and thus no Party shall have the right to rescind this Agreement.
9.1.5 The limitations on indemnification contained in this Section 9.1 shall not apply in the case of fraud or gross negligence.
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the terms of this ARTICLE XI, and except for claims arising out of fraud, from and after the Closing, Buyer and its Subsidiaries (including the Company and its Subsidiaries from and after the Closing) and their respective successors and assigns (the "Buyer Indemnitees") shall indemnifybe entitled to be indemnified solely from the Indemnification Escrow Fund (and not from the Unitholders or any of their Affiliates) against any Losses arising out of or resulting from any breach of or inaccuracy in the representations and warranties of (i) the Company set forth in ARTICLE V, defend (ii) Arsenal Blocker Seller set forth in Section 4.02, or (iii) any breach by the Representative of any of its covenants and agreements contained in this Agreement that survive beyond the Closing Date.
(b) Subject to the terms of this ARTICLE XI, from and after the Closing, Buyer shall indemnify and hold each Investor, its affiliates, harmless the Unitholders and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representativesheirs, successors and assigns (each an the "Investor EntityUnitholder Indemnitees") harmless from and against all any Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, of or resulting from (ai) any breach or inaccuracy in the representations and warranties of Buyer or Merger Sub set forth in Section 4.01, or (ii) any breach by Buyer, Merger Sub or the Surviving Company of any of the representations, warranties, their respective covenants or and agreements made by it contained in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, that survive beyond the Documents, and Closing Date.
(bc) any third party claim made against an Investor Entity relating The obligations to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend indemnify and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches 11.02 shall survive the consummation of the representations and warranties transactions contemplated hereby for the applicable period set forth in Section 2.711.01, except for claims for indemnification asserted by written notice to the Representative or Buyer, as they relate applicable, prior to Taxes, Sections 2.26 the end of such applicable period (which claims shall survive until final resolution thereof and 2.27, to any covenants contained so long as the party making such claim is contesting such claim in good faith). Notwithstanding anything in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) contrary, except for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them claims arising out of or relating to fraud, all claims for indemnification by any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after Buyer Indemnitee shall immediately terminate and expire as soon as the Closing DateIndemnification Escrow Funds available equal zero dollars.
Appears in 1 contract
General Indemnification. (a) The Corporation provisions of this Section 9.1 shall indemnifynot apply to any Losses based upon, defend attributable to or resulting from the failure of any representation or warranty contained in Section 4.11 to be true and correct or for the indemnification for Taxes provided in Section 9.5(a), which in each case shall instead be governed exclusively by the provisions of Section 9.5.
(b) Subject to the provisions of this Article IX, from and after the Closing Date, Sellers shall jointly and severally (to the extent permitted under applicable Law) indemnify and hold each InvestorPurchaser and its Affiliates, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against any and all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out ofbased upon, relating to, attributable to or resulting from from:
(ai) any breach the failure of any representation or warranty of the representations, warranties, covenants Sellers set forth in Article IV hereof or agreements made by it in this Agreement any representation or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants warranty contained in this Agreement or any certificate delivered by or on behalf of Sellers pursuant to this Agreement to be true and correct as of the Closing Date;
(ii) the breach of any covenant or other Document and agreement on the part of Sellers under this Agreement;
(iii) the Reorganization;
(iv) the matter described under the caption "Pactiv/Hexacomb Spain" on Schedule 4.18, provided that Sellers shall retain all rights to willful misrepresentationany insurance proceeds, fraud rights of contribution, or deceit, which shall not be subject other rights related to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible")matter, and then only Purchaser shall cooperate, and cause the Companies to cooperate, with Sellers in connection with the extent that defense of such Lossesmatter or the recovery of any amounts related thereto from third parties, in the aggregate including insurance carriers; and
(v) any royalties or interest due to Sealed Air Corporation for all Investors, exceed the Deductible; or (b) periods prior to Closing with respect to the Investor Entities associated with each Investoragreements listed as items 60 and 61on Schedule 4.15(a), in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date except to the date of determinationextent accrued on the Final Working Capital Statements.
(c) (the "Limit"). The Corporation Subject to Section 9.4 hereof, Purchaser shall also indemnify, defend indemnify and hold Sellers and their Affiliates harmless each Investor Entity from and against any and all Losses based upon, attributable to or resulting from:
(i) the failure of any representations and warranty of Purchaser set forth in Article V hereof or any representation and warranty contained in any certificate delivered by or on behalf of Purchaser pursuant to this Agreement to be true and correct as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by Closing Date;
(ii) the breach of any covenant or other agreement on the part of them Purchaser under this Agreement; and
(iii) any and all Losses arising out of of, based upon or relating to Purchaser's operation of the Businesses or Purchaser's ownership of the Shares from and after the Effective Time.
(d) In determining indemnification obligations under this Article IX, Sellers and Purchaser hereby agree that
(i) For purposes of determining whether there has been a failure of any WFI Entity being representation or having been an ERISA Affiliate with any other Person warranty to be true and correct and the amount of Losses sustained or incurred by Purchaser, for purposes of Section 9.1(b)(i) and Section 9.1(c)(i), such representations and warranties shall be interpreted without giving effect to the words "material," "materially," "Company Material Adverse Effect" or similar qualifications (other than another WFI Entityin Section 4.9, where such terms shall be given full effect), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.;
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the other provisions of this Article 11, from and after the Closing, M▇▇▇▇▇ S▇▇▇▇▇▇, Seller and Parent shall jointly and severally indemnify, defend and hold each InvestorBuyer, its affiliates, OFC and each of their respective Affiliates and any officers, directors, partnersemployees and agents of Buyer, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns OFC or any of their respective Affiliates (each an "Investor Entity"a “Buyer Indemnitee”) harmless from any actual damages, losses, liabilities, obligations, claims of any kind, interest or reasonable out-of-pocket expenses (including reasonable attorneys’ fees and against all Losses expenses incurred in investigating, defending or settling any Action or enforcing any right to indemnification under this Agreement) (as defined beloweach, a “Loss”) incurred suffered or suffered by an Investor Entity (whether incurred or suffered paid, directly or indirectly through ownership of Series A Non-Voting Preferred Shares indirectly, as a result of, in connection with, or Conversion Shares) arising out of, relating to, or resulting from :
(ai) any breach of any of the representations, warranties, covenants representation or agreements warranty made by it the Company, M▇▇▇▇▇ S▇▇▇▇▇▇, Parent or Seller contained in this Agreement Article 3, Article 4 or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale Article 5 of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate delivered by Parent, M▇▇▇▇▇ S▇▇▇▇▇▇, Seller or other instrument delivered the Company, as applicable, prior to the Closing Date, in each case, pursuant heretoto this Agreement;
(ii) any breach by Parent, including, without limitationM▇▇▇▇▇ S▇▇▇▇▇▇, the DocumentsCompany or Seller of (A) any of the covenants contained herein which are to be performed by Parent, M▇▇▇▇▇ S▇▇▇▇▇▇, the Company or Seller before the Closing and (B) Parent, M▇▇▇▇▇ S▇▇▇▇▇▇, the Company or Seller of any of the covenants contained herein which are to be performed by Parent, M▇▇▇▇▇ S▇▇▇▇▇▇ or Seller after the Closing;
(iii) Loss Sharing Claims to the extent necessary so that Seller (and the other Seller Indemnitees) shall bear, whether directly or through the indemnification provided in this Section 11.2(a)(iii), (A) first, seventy-five percent (75%) of each claim in respect of such Losses until the aggregate amount paid by Seller or any other Seller Indemnitee pursuant to Section 11.2(a)(iii)(A) is equal to sixty percent (60%) of the Shared Loss Cap and (B) thereafter, twenty-five percent (25%) of each claim in respect of such Losses until the aggregate amount paid by Seller or any other Seller Indemnitee pursuant to Section 11.2(a)(iii)(A) is equal to the Shared Loss Cap; and
(iv) any Retained Liability. In the event a Loss would be eligible for indemnity under either Section 11.2(a)(i) or Section 11.2(a)(iii), on the one hand, and Section 11.2(a)(iv), on the other hand, such Loss shall be recoverable only under Section 11.2(a)(iv). In the event a Loss would be eligible for indemnity under either Section 11.2(a)(i) or Section 11.2(a)(iii), such Loss shall be recoverable only under Section 11.2(a)(iii). Notwithstanding anything to the contrary in this Agreementherein, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that Seller or any of its Affiliates has incurred any legal fee or similar cost or expense in connection with the prosecution or defense of any Claim or a Third Party Claim, then Seller (or such LossesAffiliate) shall retain any right of reimbursement or indemnity for such legal fees, costs and expenses enforceable against any Person in the aggregate for all Investors, exceed the Deductible; relation to such Claim or Third Party Claim.
(b) with respect Subject to the Investor Entities associated with each Investorother provisions of this Article 11, in an aggregate amount in excess of from and after the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation ValueClosing, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also Buyer and OFC jointly and severally indemnify, defend and hold M▇▇▇▇▇ S▇▇▇▇▇▇, Parent, the Company and Seller and their respective Affiliates and any officers, directors, employees and agents of Parent, the Company, Seller or any of their respective Affiliates (each a “Seller Indemnitee”) harmless each Investor Entity against from any and all Losses Loss suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of:
(as defined i) any breach of any representation or warranty made by Buyer or OFC contained in Section 11.2 and not subject Article 6 or in any certificate delivered to the Company pursuant to this Agreement;
(ii) any Deductible breach by Buyer or LimitOFC of (A) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 any of the Code covenants or agreements contained herein which may are to be incurred performed by Buyer, OFC or their respective Affiliates before the Closing and (B) any of them arising out of the covenants or relating agreements contained herein which are to any WFI Entity being be performed by Buyer, OFC or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after their respective Affiliates following the Closing Date.Closing;
Appears in 1 contract
General Indemnification. The Corporation shall indemnify9.1.1 Subject to Sections 9.2, defend 9.4, and 9.5, the Seller hereby agrees to indemnify and hold each Investorthe Purchaser, its affiliatesthe Company, and each of their respective directors, officers, employees, Affiliates, agents, successors and assigns (collectively, the “Purchaser Indemnified Parties”) harmless from and against:
9.1.1.1 any and all Losses based upon, attributable to or resulting from any inaccuracy or breach of any representation or warranty of the Seller set forth in ARTICLE 4, or any representation or warranty contained in any certificate delivered by or on behalf of the Seller pursuant to this Agreement;
9.1.1.2 any and all Losses based upon, attributable to or resulting from any inaccuracy or breach of any covenant or other agreement on the part of the Seller under this Agreement;
9.1.1.3 any and all Losses resulting from the failure to obtain any Consent with respect to any Contract of the Company which provides for or requires the Consent of the other party thereto to be obtained in connection with, or as a result of, the consummation of any of the transactions contemplated by this Agreement;
9.1.1.4 any of the litigation matters set forth on Schedule 4.17, except for claims based upon, attributable to or resulting from any (i) Interon or Interon based products, or (ii) unpurchased inventory and rebate dispute involving ▇▇▇▇’▇ Companies, Inc.;
9.1.1.5 any claim based upon, attributable to or resulting from asbestos-containing products manufactured or sold by the Company prior to the Closing; and
9.1.1.6 any claim for indemnification against the Company by any Person who was a director or an officer of the Company prior to the Closing Date (whether such claim is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such claim is pursuant to any statute, charter document, bylaw, agreement, or otherwise), for any claims made against such Person in his role as a director or officer of the Company and brought by Seller (whether such action, suit, proceeding, complaint, claim or demand is pursuant to this Agreement, Applicable Law, or otherwise), if such Person is entitled to indemnification from the Company.
9.1.2 Subject to Sections 9.3 and 9.5, the Purchaser hereby agrees to indemnify and hold the Seller, and its Affiliates, and their respective directors, partners, managing directors, affiliatesofficers, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against against:
9.1.2.1 any and all Losses (as defined in Section 11.2 and not subject based upon, attributable to or resulting from any Deductible inaccuracy or Limit) arising under Title IV breach of ERISA, Section 302 of ERISA and Sections 412 and 4971 any representation or warranty of the Code which may be incurred Purchaser set forth in ARTICLE 5, or any representation or warranty contained in any certificate delivered by or on behalf of the Purchaser pursuant to this Agreement;
9.1.2.2 any and all Losses based upon, attributable to or resulting from any inaccuracy or breach of them arising out any covenant or other agreement on the part of the Purchaser under this Agreement; and
9.1.2.3 claims based upon, attributable to or relating to resulting from any WFI Entity being Interon or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateInteron based products.
Appears in 1 contract
Sources: Stock Purchase Agreement (Franklin Electric Co Inc)
General Indemnification. The Corporation shall (a) After the Closing, the Sellers agrees to jointly and severally indemnify, defend and hold Buyer and its officers, directors, employees, representatives and Affiliates (each Investora “Buyer Indemnitee” and together the “Buyer Indemnitees”) harmless from any actual damages, losses, liabilities, obligations, claims of any kind, interest or expenses including reasonable attorneys’ fees and expenses (collectively, “Loss”) as a result of (i) the failure of any representation or warranty made by Seller in ARTICLE 2 of this Agreement and in any other Transaction Document to be true and correct as of the date of this Agreement, (ii) any breach by Seller of any of its affiliatescovenants or agreements contained herein or in any other Transaction Documents, (iii) the Closing Date Funded Indebtedness that remains outstanding following the Closing to the extent not disclosed to Buyer; (iv) any income Taxes with respect to SMP for any Pre-Closing Tax Period (including for the avoidance of doubt, all Taxes that relate to the portion of a Straddle Period ending on the Closing Date), (v) any Fraud by Seller or SMP related to this Agreement and the transactions contemplated hereby, and (vi) the matters described in Section 7.2(a)(vi) of the Disclosure Schedule, in each case, subject to the other provisions of this ARTICLE 7 (including the limitations set forth in Section 7.4 and Section 7.5).
(b) After the Closing, ▇▇▇▇▇ agrees to indemnify, defend and hold the Sellers and their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors employees and assigns representatives (each an "Investor Entity"a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from and against all Losses (as defined below) incurred any Loss suffered or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in partpaid, directly or indirectly, with proceeds from as a result of (i) the sale failure of any representation or warranty made by Buyer in ARTICLE 3 of this Agreement to be true and correct as of the Series A Non-Voting Preferred Shares date of this Agreement, or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the (ii) any breach by Buyer of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything contained herein.
(c) The obligations to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend indemnify and hold harmless each Investor Entity against any pursuant to clause (i) of Section 7.2(a) and all Losses pursuant to clause (as defined i) of Section 7.2(b) shall survive the consummation of the transactions contemplated hereby only for the duration of the applicable Survival Period and the obligations to indemnify and hold harmless pursuant to clause (ii) of Section 7.2(a) and pursuant to clause (ii) of Section 7.2(b) shall survive the consummation of the transactions contemplated hereby only for the period set forth in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity7.1(b), whether in each case, except for claims for indemnification pursuant to such Losses arise out clauses asserted with reasonable specificity in a Claim Notice that is received by the Responsible Party prior to the end of or relate to any event or state of facts occurring or existing beforesuch period, on or after the Closing Datewhich such claims shall survive until final resolution thereof.
Appears in 1 contract
General Indemnification. The Corporation (a) Sears shall indemnify, defend and hold each Investor, its affiliates, the Company and each of their respective its officers, directors, partners, managing directors, directors and affiliates, employeesincluding WAH immediately following the Closing (each, agentsa "Company Indemnitee"), consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against against, and shall reimburse each Company Indemnitee for, any and all Losses (as defined below) that may be incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, such Company Indemnitee relating to, or based upon, resulting from or arising out of (ai) any breach or other violation of any representation, warranty, agreement, obligation or commitment of Sears under this Agreement or the Assumption Agreement, (ii) any WAH Liabilities (as defined below), (iii) the Share Exchange or Merger Transaction; provided, that Sears will not indemnify the Company for any Losses that arise out of or result from (w) the Company's breach or violation of any representation or warranty (without regard to any materiality or knowledge qualifiers otherwise pertaining thereto), agreement, obligation or commitment of the Company under this Agreement or the Assumption Agreement, including any of the representationscovenants contained in Section 1.6 of this Agreement, warranties(x) any liabilities which arise out of or result from any obligation, covenants duty, responsibility or agreements made commitment, contractual or otherwise, of the Company or its subsidiaries that exists either as of or prior to the Closing (the "Company Liabilities") or (y) any liabilities of WAH, contractual or otherwise, that occur as a result of or arise from the Company Liabilities through agreement, operation of law or otherwise or (iv) Sears' ownership of the equity of WAH, except that any such Losses relating to, based upon, resulting from or arising out of any breach or other violation of any representation and warranty set forth in Section 3.8 or subject to indemnification under Section 5.2 shall be governed exclusively by it in Section 5. The parties hereto agree that this Agreement or Agreement, including the indemnification provisions hereof, shall not be deemed to alter in any agreementway Sears' liability under the Merger Agreement (as defined in Schedule 3.6 hereto), certificate or other instrument delivered pursuant hereto including, without limitation, except to the Documents, extent that Sears' liability under the Merger Agreement will be sole rather than joint and several with WAH.
(b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, The Company shall indemnify, defend and hold the Corporation, its affiliates, Sears and each of their respective its officers, directorsdirectors and affiliates (each, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "DeductibleSears Indemnitee"), harmless from and then only to the extent that such Lossesagainst, in the aggregate for all Investorsand shall reimburse each Sears Indemnitee for, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which that may be incurred or suffered by any of them such Sears Indemnitee relating to, based upon, resulting from or arising out of any breach or relating to other violation of any WFI Entity being representation, warranty, agreement, obligation or having been an ERISA Affiliate with commitment of the Company under this Agreement or the Assumption Agreement, including any other Person of the covenants contained in Section 1.6 of this Agreement.
(other than another WFI Entity)c) For purposes of this Agreement, whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.following terms shall have the following definitions:
Appears in 1 contract
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of Subject to the representationslimitations contained in Section 11.2(c) the Sellers, warrantiesseverally, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating agree to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the CorporationPurchaser, its affiliates, Affiliates and each of their respective Subsidiaries, officers, directors, employees, agentsand agents (each, consultantsa "Purchaser Indemnitee" and, representativescollectively, successors and assigns the "Purchaser Indemnitees") harmless against all Losses arising on an after-tax basis from the breach any damages, losses, liabilities, obligations, claims of any of its representationskind, warranties, covenants interest or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Losses") suffered, incurred or paid as a result of (i) any breach by any of the Documents. Notwithstanding anything to the contrary Sellers of any of their covenants or agreements contained in this Agreement, no indemnification (ii) the failure of any representation or warranty (other than a breach of Section 3.10 with respect to Taxes which shall be governed by Section 8.7) made by any of the Sellers in this Agreement to be true and correct in all respects as of the Closing Date, or (iii) the payment by of any and all stay bonuses to any employee of the Corporation Company (including, without limitation, to David Hannigan, Mike Bower, Roger Chase and Sandra Lembke) granted o▇ ▇▇ ▇▇▇▇▇ ▇▇ th▇ ▇▇▇▇▇▇▇ Da▇▇: ▇▇ ▇▇▇▇g und▇▇▇▇▇▇▇ ▇▇▇▇, with respect to any obligation of the Sellers pursuant to this Section 11 11.2 (other than with respect to any representation or warranty contained in Article IV with respect to Magnolia or Article V with respect to Hawthorne Trust, or any agreement or covenant which relates to one Seller only), such obligation with respect to each Seller shall be limited to such Seller's Remedy Percentage.
(b) Purchaser will indemnify, defend and hold the Sellers and their respective affiliates. Subsidiaries. officers, directors, employees, and agents (each, a "Seller Indemnitee" and collectively, the "Seller Indemnitees") harmless on an after-tax basis from any Losses otherwise payable hereunder suffered, incurred or paid as a result of a (i) any breach by Purchaser of any of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants or agreements contained in this Agreement or (ii) the failure of any other Document representation or warranty made by the Purchaser in this Agreement to be true and to willful misrepresentationcorrect in all respects as of the Closing Date.
(c) Notwithstanding the provisions contained in Section 11.2(a), fraud or deceit, which shall not be subject to (i) the Deductible or Limit) Sellers shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only required to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and Purchaser Indemnitee under Section 11.2(a)(ii) only if the aggregate amount of all Losses for which all Purchaser Indemnitees are otherwise entitled to seek indemnification under Section 11.E(a)(11) exceeds One Hundred Thousand Dollars (as defined in $100,000) (the "Basket Amount"), whereupon such Losses shall be indemnified pursuant to Section 11.2 11.2(a)(ii), including, for greater certainty, the Basket Amount, and not subject to any Deductible or Limit(ii) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 the maximum aggregate indemnification liability of the Code which may be incurred by any of them arising out of or relating Sellers to any WFI Entity being or having been an ERISA Affiliate with any other Person all Purchaser Indemnitees under Section 11.2(a)(ii) shall not exceed Two Million Seven Hundred Thousand Dollars (other than another WFI Entity$2,700,000); provided, whether such Losses arise out of or relate to any event or state of facts occurring or existing beforehowever, that the limitation on or after the Closing Date.indemnification contained in this
Appears in 1 contract
General Indemnification. The Corporation shall indemnifySection 9.2.1 Subject to the provisions of Section 9.5, defend and hold each Investorif after the Closing Date, the Purchaser and/or its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns Affiliates and/or agents (each an "Investor Entity"a “Purchaser Indemnitee” and together the “Purchaser Indemnitees”) harmless from suffer, without any duplication, any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including reasonable attorneys’ fees and against all Losses expenses) (“Loss”) as defined below) incurred a result of, in connection with, or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from of (ai) any breach of any representation or warranty made by the Company or the Seller contained in Article III or Article IV and (ii) any failure by the Company to perform any of the representations, warranties, its covenants or agreements made contained herein which are to be performed by it in this Agreement the Company at or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, before the DocumentsClosing, and (biii) any third party claim made against an Investor Entity relating to any transaction failure by the Corporation financed in whole Seller to perform any of its covenants or in partagreements contained herein which are to be performed by the Seller on or after the Closing Date, directly or indirectlythen, with proceeds subject to the other provisions of this Article IX, such Purchaser Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the sale Escrow Account to the extent of any available funds, and then, the Seller shall indemnify the Purchaser Indemnitees for such Loss.
Section 9.2.2 After the Closing, each of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally Purchaser and not jointly, shall the Company agrees to indemnify, defend and hold the CorporationSeller, its affiliatesmembers, and each of their respective officers, directors, employees, agentsAffiliates and/or agents (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from any Loss suffered or paid, consultantsdirectly or indirectly, representativesas a result of, successors in connection with, or arising out of (i) any breach of any representation or warranty made by the Purchaser in this Agreement contained in Article V, (ii) any failure by the Purchaser to perform any of its covenants or agreements contained herein, and assigns harmless against all Losses arising from (iii) any breach by the breach Company or any of its Subsidiaries of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything contained herein which are to the contrary in this Agreement, no indemnification payment be performed by the Corporation pursuant to this Section 11 with respect to Company or any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of Subsidiaries after the representations and warranties in Closing.
Section 2.7, as they relate 9.2.3 The obligations to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend indemnify and hold harmless each Investor Entity pursuant to Section 9.2.1 and pursuant to Section 9.2.2 shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 9.1, except for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims shall survive until final resolution thereof.
Section 9.2.4 Seller shall have no right of contribution, reimbursement or subrogation, or any similar rights, against the Company or any of its Subsidiaries for any indemnification payment made or owing by Seller, and Seller hereby waives any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Daterights.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Diversified Holdings)
General Indemnification. The Corporation shall (a) From and after the Closing Date, each Nominee shall, severally and not jointly or jointly and severally (as determined below), indemnify, hold harmless and defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless Indemnified Party from and against any and all Losses (as defined below) asserted against, imposed upon or incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out ofthe Indemnified Party, relating to, or to the extent resulting from (ai) any breach of any a representation, warranty, covenant or obligation of the representations, warranties, covenants or agreements made by it such Nominee contained in this Agreement, or in any Exhibit, certificate or affidavit delivered by such Nominee pursuant hereto or pursuant to the Contribution Agreement, (ii) any Related Contributor’s breach of any representation, warranty, covenant or obligation of such Related Contributor contained in the Contribution Agreement or in any agreementSchedule, Exhibit, certificate or other instrument affidavit attached thereto or delivered by such Related Contributor pursuant hereto includingthereto, without limitation(iii) any breach by the ▇▇▇▇▇▇ Contributors of a representation or warranty contained in Sections 2.11 through and including 2.27 of Exhibit C attached to the ▇▇▇▇▇▇ Contribution Agreement, but only if such Nominee received consideration in respect of the Property to which such breach relates, or (iv) any breach by TMG of a representation or warranty contained in Sections 2.11 through and including 2.27 of Exhibit C attached to the TMG Contribution Agreement, but only if such Nominee received consideration in respect of the Property to which such breach relates. In each case, the Documentsindemnifying party or parties shall (collectively, if applicable) only bear the fees, costs or expenses in connection with the employment of one counsel (regardless of the number of Indemnified Parties). For avoidance of doubt, in no event shall the obligations of any Nominee under the Contribution Agreement and hereunder be duplicative.
(b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each InvestorNominee shall also, severally and not jointlyjointly or jointly and severally (as determined above), shall indemnify, defend indemnify and hold harmless the Corporation, its affiliates, Indemnified Parties from and each of their respective officers, directors, employees, agents, consultants, representatives, successors against any and assigns harmless against all Losses asserted against, imposed upon or incurred by the Indemnified Parties to the extent resulting from an unrelated third-party claim arising from (i) any Related Contributor’s failure to timely pay any fees and expenses for which it is responsible pursuant to the breach Contribution Agreement in connection with the transactions contemplated thereby, (ii) such Nominee’s failure to timely pay any fees and expenses of any of its representations, warranties, covenants or agreements in such Nominee for which it is responsible pursuant to this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary Contribution Agreement in this connection with the transactions contemplated by each such Agreement, no indemnification payment by the Corporation and (iii) any Excluded Liabilities of any Related Contributor.
(c) With respect to any claim of an Indemnified Party pursuant to this Section 11 3.2, to the extent available, the Operating Partnership agrees to use diligent good faith efforts to pursue and collect any and all available proceeds and benefits of any right to defense under any insurance policy which covers the matter which is the subject of the indemnification prior to seeking indemnification from a Nominee until all proceeds and benefits, if any, to which the Operating Partnership or the Indemnified Party is entitled pursuant to such insurance policy have been exhausted; provided, however, that the Operating Partnership may make a claim under this Section 3.2 even if an insurance coverage dispute is pending, in which case, if the Indemnified Party later receives insurance proceeds with respect to any Losses otherwise payable hereunder as paid by a result Nominee for the benefit of a breach any Indemnified Party, then the Indemnified Party shall reimburse such Nominee in an amount equivalent to such proceeds in excess of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in deductible amount pursuant to Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject 3.6(a) up to the Deductible amount actually paid (or Limitdeemed paid) shall be payable (a) until the time as by such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only Nominee to the extent Indemnified Party in connection with such indemnification (it being understood that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) costs and expenses incurred by a Nominee with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess insurance coverage disputes shall constitute Losses paid by such Nominee for purposes of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"Section 3.2(a). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.
Appears in 1 contract
Sources: Representation, Warranty and Indemnity Agreement (Hudson Pacific Properties, Inc.)
General Indemnification. The Corporation shall (a) Subject to Sections 10.02 and 10.03, from and after the Closing Date, the KRG Stockholders, jointly and severally, hereby agree to indemnify, defend and hold each Investorharmless Sunrise and Merger Sub and their respective Affiliates (including, after the Effective Time, the Surviving Corporation and its affiliates, Affiliates) and each of their respective directors, officers, directorsemployees and agents (each, partnersa “Sunrise Indemnified Party” and, managing directorscollectively, affiliatesthe “Sunrise Indemnified Parties”), employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against any and all Losses (as defined below) incurred or suffered by an Investor Entity the Sunrise Indemnified Parties arising out of, based upon or resulting from any of the following:
(whether incurred i) any breach by any KRG Stockholder or suffered directly the Company of any representation or indirectly through ownership warranty of Series A Nonthe KRG Stockholder or the Company contained in or referred to in Article 4 or in any schedule or exhibit or in the certificate delivered by or on behalf of any KRG Stockholder or the Company pursuant to Section 8.02(a), in each case, without regard for any exception for materiality, material adverse effect or Material Adverse Effect contained therein;
(ii) any breach by any KRG Stockholder or the Company of, or any failure of any KRG Stockholder or the Company to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Agreement;
(iii) any Medicare Cap Liability;
(iv) all Transaction Expenses which have not been paid prior to Closing or which have not been reflected in the calculation of Merger Consideration pursuant to the provisions of Section 3.01(a) of this Agreement;
(v) any failure by the Acquired Companies or their respective Affiliates to comply with applicable securities Laws (including federal and state securities registration and broker-Voting Preferred Shares or Conversion Shares) dealer Laws, “blue sky” Laws, the Investment Advisers Act and the Investment Company Act), in connection with, arising out of, relating to, to or resulting from any capital or other fund raising activities on or prior to the Closing Date;
(avi) any breach facts, circumstances or conditions, existing, initiated or occurring prior to the Closing Date which have resulted or may result in any Liabilities under any Environmental Law;
(vii) the preparation and submission of any claims and cost reports and any other activity prior to Closing in connection with the Business which is the basis for any suspension, disbarment, or exclusion under any Government Program, or is prohibited by 42 U.S.C. Section 1320a-7a, 42 U.S.C. Section 1320a-7b, 18 U.S.C. Section 1347, 18 U.S.C. Section 1035, or 31 U.S.C. Section 3729-3733, or any similar state laws;
(viii) any demand or claim made pursuant to Section 262 with respect to any Appraisal Shares, up to an amount equal to the excess, if any, of (A) the sum of (i) any amounts Sunrise, Merger Sub, the Company or the Surviving Corporation is required by a court of competent jurisdiction to pay, or pays in settlement, in respect of any Appraisal Shares plus (ii) any other Losses suffered by Sunrise, Merger Sub, the Company or the Surviving Corporation resulting from any demand or claim made pursuant to Section 262 with respect to any Appraisal Shares, over (B) the amount of the representationsapplicable Merger Consideration (if any) into which such Appraisal Shares would have been converted in the Merger had such shares not been Appraisal Shares (without giving effect to the amount of the Final Working Capital Payment, warrantiesif any, covenants payable with respect thereto under Section 3.08(c));
(ix) any actions taken (or agreements made omitted to be taken) prior to the Effective Time by it any Acquired Company or its respective officers, directors or partners in this Agreement or connection with the negotiation and consummation of the Merger and the other Contemplated Transactions, including in connection with the approval and adoption of the Merger and the other Contemplated Transactions; and
(x) any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, matters described in Section 10.01(a)(x) of the Documents, and Disclosure Schedule.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by Sections 10.02 and 10.03, from and after the Corporation financed in whole or in partClosing Date, directly or indirectlysubject to Section 10.04(b), with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall ACS Stockholder hereby agrees to indemnify, defend and hold harmless the CorporationSunrise Indemnified Parties, its affiliates, from and each of their respective officers, directors, employees, agents, consultants, representatives, successors against any and assigns harmless against all Losses incurred or suffered by the Sunrise Indemnified Parties arising out of, based upon or resulting from any of the following:
(i) any breach by the ACS Stockholder of any representation or warranty of its representations, warranties, covenants the ACS Stockholder contained in or agreements referred to in this Agreement Article 4 or in any schedule or exhibit or in the certificate delivered by or other instrument delivered on behalf of the ACS Stockholder pursuant heretoto Section 8.02(a), includingin each case, without limitationregard for any exception for materiality, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment material adverse effect or Material Adverse Effect contained therein; and
(ii) any breach by the Corporation ACS Stockholder of, or any failure of the ACS Stockholder to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Section 11 with respect Agreement.
(c) Subject to any Losses otherwise payable hereunder as a result of a breach of its representations Sections 10.02 and warranties (other than any Losses resulting 10.03, from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from after the Closing Date Date, Sunrise hereby agrees to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity Principal Stockholder and their respective Affiliates, and each of their respective directors, officers, employees and agents (each, a “Principal Stockholder Indemnified Party” and, collectively, the “Principal Stockholder Indemnified Parties”), from and against any and all Losses incurred or suffered by Principal Stockholder Indemnified Parties arising out of, based upon or resulting from any of the following:
(i) any breach by Sunrise or Merger Sub of any representation or warranty contained in or referred to in Article 5 or in any schedule or exhibit or in the certificate delivered by or on behalf of Sunrise and Merger Sub pursuant to Section 8.03(a), in each case, without regard for any exception for materiality, material adverse effect or Sunrise Material Adverse Effect contained therein; and
(ii) any breach by Sunrise or Merger Sub of, or any failure of Sunrise or Merger Sub to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Agreement.
(d) In the event that a Person entitled to indemnification under this Article 10 (the “Indemnified Party”) will incur or suffer any Losses in respect of which indemnification may be sought under this Article 10 against the Person required to provide indemnification under this Article 10 (collectively, the “Indemnifying Party”), the Indemnified Party will assert a claim for indemnification by providing a written notice (the “Notice of Loss”) to the Indemnifying Party stating the nature and, in reasonable detail, the basis of such Notice of Loss. The Notice of Loss will be provided to the Indemnifying Party as defined soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss. Notwithstanding the foregoing but subject to Section 10.02, any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss in a timely manner as aforesaid, will not relieve any Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 10.01 except to the extent that the ability of such Indemnifying Party to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss. If the Notice of Loss relates to a Third Party Claim, the procedures set forth in Section 11.2 10.01(e) will be applicable. If the Notice of Loss does not relate to a Third Party Claim, the Indemnifying Party will have thirty (30) days from the date of receipt of such Notice of Loss to object to any of the subject matter and any of the amounts of the Losses set forth in the Notice of Loss, as the case may be, by causing the Indemnifying Party to deliver written notice of objection thereof to the Indemnified Party. If the Indemnifying Party fails to send a notice of objection to the Notice of Loss within such thirty (30) day period, the Indemnifying Party will be deemed to have agreed to the Notice of Loss and will be obligated to pay to the Indemnified Party the portion of the amount specified in the Notice of Loss to which the Indemnifying Party has not objected. If the Indemnifying Party sends a timely notice of objection, the Indemnifying Party and the Indemnified Party will use their Commercially Reasonable Efforts to settle (without an obligation to settle) such claim for indemnification. If the Indemnifying Party and the Indemnified Party do not settle such dispute within thirty (30) days after the Indemnified Party’s receipt of the Indemnifying Party’s notice of objection, the Indemnifying Party and the Indemnified Party will be entitled to seek enforcement of their respective rights under this Article 10.
(e) Promptly after receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any action, suit or proceeding by a third Person (a “Third Party Claim”) in respect of which the Indemnified Party will seek indemnification hereunder, the Indemnified Party will so notify in writing the Indemnifying Party, but subject to Section 10.02 any Deductible or Limit) arising failure so to notify the Indemnifying Party will not relieve the Indemnifying Party from any Liability that it may have to the Indemnified Party under Title IV of ERISA, this Section 302 of ERISA and Sections 412 and 4971 10.01 except to the extent that the ability of the Code Indemnifying Party to defend the Third Party Claim is materially prejudiced by the Indemnified Party’s failure to give such notice. In no event will the Indemnified Party admit any Liability with respect to such Third Party Claim or settle, compromise, pay or discharge such Third Party Claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. With respect to any such claim as to which the Indemnifying Party has acknowledged in writing the obligation to indemnify the Indemnified Party hereunder, the Indemnifying Party will have the right to assume the defense (at the expense of the Indemnifying Party) of any such claim through counsel chosen by the Indemnifying Party by causing the Indemnifying Party to notify the Indemnified Party within thirty (30) days after the receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, that any such counsel will be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party; provided, that the Indemnified Party will have the right to employ counsel to represent it at the expense of the Indemnifying Party if the Indemnified Party has been advised by its counsel that there is a potential conflict between the interests of the Indemnified Party and any Indemnifying Party, in which event the reasonable fees and expenses of such separate counsel will be paid by the Indemnifying Party. The Indemnifying Party and the Indemnified Party each agree to render to the other parties such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such claim, which assistance will include, to the extent reasonably requested by a party, the retention, and the provision to such party, of records and information reasonably relevant to such Third Party Claim, and making employees of the other party available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. The Indemnifying Party may not settle or otherwise dispose of any Third Party Claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless such settlement includes only the payment of monetary damages (which are fully paid by the Indemnifying Party), does not impose any injunctive or equitable relief upon the Indemnified Party, does not require any admission or acknowledgment of liability or fault of the Indemnified Party and contains an unconditional release of the Indemnified Party in respect of such claim. None of the Indemnified Party or any of its Affiliates may settle or otherwise dispose of any Third Party Claim for which the Indemnifying Party may have a Liability under this Agreement without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.
(f) With respect to any claim as to which the Indemnifying Party will have acknowledged in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party hereunder, after written notice by the Indemnifying Party to the Indemnified Party of the election by the Indemnifying Party to assume control of the defense of any such Third Party Claim, the Indemnifying Party will not be liable to such Indemnified Party hereunder for any costs or fees subsequently incurred by any such Indemnified Party in connection with the defense thereof, except if the Indemnified Party has the right to employ counsel to represent it at the expense of them arising out the Indemnifying Party as set forth in Section 10.01(e). If the Indemnifying Party does not assume control of or relating the defense of such Third Party Claim within thirty (30) days after the receipt by the Indemnifying Party of the notice required pursuant to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI EntitySection 10.01(e), whether the Indemnified Party will have the right to defend such Losses arise out claim in such manner as it may deem appropriate at the reasonable cost and expense of or relate to any event or state of facts occurring or existing before, on or after the Closing DateIndemnifying Party.
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the limitations in Section 7.2(c), Asset Sellers and each Shareholder shall, jointly and severally, indemnify, defend and hold harmless Buyer Parties and their respective members, managers, stockholders, directors, officers, Affiliates, employees, agents and representatives (collectively, the “Buyer Indemnified Parties”), 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 misrepresentation or breach of, or inaccuracy in, any representation or warranty made by any Asset Seller or the Shareholders in this Agreement or any Ancillary Agreement;
(ii) any breach of any covenant made by any Asset Seller or the Shareholders in this Agreement or any Ancillary Agreement;
(iii) the Retained Liabilities;
(iv) any matters identified on Schedule 7.2(a)(iv); or
(v) the enforcement by Buyer Indemnified Parties of any indemnification rights under this Agreement.
(b) Subject to the limitations in Section 7.2(c), Buyer Parties shall indemnify, defend and hold harmless Asset Sellers, each Investor, its affiliatesShareholder, and each of their respective officersagents and representatives (collectively, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity"the “Seller Indemnified Parties”) harmless from and against all Losses (as defined below) that are incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership any of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, them in connection with or resulting from each of the following:
(ai) any misrepresentation or breach of any representation or warranty made by any Buyer Party in this Agreement or any Ancillary Agreement;
(ii) any breach of any of the representations, warranties, covenants or agreements covenant made by it any Buyer Party in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and Ancillary Agreement;
(biii) any third party claim made against an Investor Entity relating Assumed Liability; provided that there shall be no indemnification under this Section 7.2(b) for any Losses for which any Buyer Indemnified Party is entitled to any transaction indemnification pursuant to Section 7.2(a); or
(iv) the enforcement by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each Seller Indemnified Parties of their respective officers, directors, employees, agents, consultants, representatives, successors indemnification rights under this Agreement.
(c) Notwithstanding the foregoing and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything subject to the contrary in proviso at the end of this Agreementparagraph and the terms of this Article VII, no (i) Asset Sellers and the Shareholders shall not be obligated to provide any indemnification payment by the Corporation for Losses pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result claims (other than Third Party Claims) for breaches of a breach of its representations and warranties (other than any Fundamental Representations) under Section 7.2(a)(i) unless the aggregate amount of Losses resulting from incurred by Buyer Indemnified Parties with respect to such breaches of representations and warranties exceeds $15,000 (the “Threshold”), in which case Asset Sellers and the Shareholders will be liable for all Losses without regard to the Threshold, and (ii) Buyer Parties shall not be obligated to provide any such indemnification for Losses pursuant to claims (other than Third Party Claims) for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), unless the aggregate amount of Losses incurred by Seller Indemnified Parties with respect to such breaches of representations and warranties exceeds the Threshold, in which case Buyer Parties will be liable for all Losses without regard to the Threshold. The maximum aggregate obligation of (i) Asset Sellers and Shareholders for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i) shall not exceed $750,000 (the “Cap”), and (ii) Buyer Parties for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed the Cap. Neither the Threshold nor the Cap shall apply to Losses arising in respect of claims for misrepresentations and breach of the Fundamental Representations.
(d) In no event shall the limitations set forth in Section 7.2(c) apply to Losses suffered or incurred by any Indemnified Party as a result of, or arising out of, (A) the matters set forth in Sections 7.2(a)(ii) through 7.2(a)(v), or Sections 7.2(b)(ii) through (iv), or (B) any fraud or intentional misrepresentation by a party.
(e) The representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which the Ancillary Agreements shall not be subject to the Deductible affected or Limit) diminished by, and no right of indemnification hereunder shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; limited by reason of any investigation or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on audit conducted before or after the Closing Dateor the knowledge of any party of any breach of a representation, warranty, covenant or agreement by the other party at any time, or the decision of any party to complete the Closing.
(f) For purposes of determining the existence of any misrepresentation or breach of warranty, and calculating the amount of any Losses incurred in connection with any such misrepresentation or breach of warranty, any and all references to material or Material Adverse Effect (or other correlative terms) shall be disregarded.
Appears in 1 contract
Sources: Asset and Equity Purchase and Contribution Agreement (Andover National Corp)
General Indemnification. The Corporation shall 12.1 Subject to the terms of Article 14 herein, Seller will defend, indemnify, defend protect and hold each Investor, Buyer and its affiliatesmembers and managers, and each of their respective officers, directors, partnersmembers, managing directorsmanagers, agents, shareholders, representatives, employees, attorneys, affiliates, employeesbeneficiaries, agents, consultants, representativessubsidiaries, successors and assigns (each an "Investor Entity"collectively, the “Buyer Indemnitees”) harmless from and against against:
12.1.1 Any and all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any related to the operation of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, Property prior to the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant heretoClosing Date, including, without limitation, the Documents. Notwithstanding anything Losses related to the contrary in this AgreementLeases and the Claims pertaining to the Property arising from acts or omissions of Seller, no indemnification payment by its agents or employees prior to the Corporation Closing Date, including, but not limited to, all liabilities and obligations for which Seller would have been, or will be, liable had Seller not transferred the Property to Buyer pursuant to this Section 11 with respect to Agreement;
12.1.2 Any and all Losses arising from any Losses otherwise payable hereunder as a result of a breach of its representations the warranties, representations, covenants and warranties (other than any Losses resulting from breaches agreements of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants Seller contained in this Agreement or any other Document and which are not discovered by Buyer prior to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the DeductibleClosing; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and
12.1.3 Any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of brokerage agreement or relating to any WFI Entity being claim by any broker, agent or having been an ERISA Affiliate with any other Person claiming a commission or other form of compensation in connection with the transactions contemplated by this Agreement by reason of any acts of Seller. The foregoing indemnification by Seller shall survive Closing; provided that except as set forth in Section 14.3.2 the indemnification obligation in Section 12.1.2 shall terminate on the date which is twelve (other than another WFI Entity)12) months after the date of Closing.
12.2 Subject to the terms of Article 14 herein, whether such Buyer will defend, indemnify and hold the Seller and its officers, directors, members, agents, shareholders, representatives, employees, attorneys, affiliates, beneficiaries, subsidiaries, successors and assigns (collectively, the “Seller Indemnitees”) harmless from and against:
12.2.1 Any and all Losses arise out related to the operation of or relate to any event or state of facts occurring or existing before, the Property on or after the Closing Date, including, without limitation, Losses related to the Leases and Claims pertaining to the Property arising from acts or omissions of Buyer, its agents or employees on or after the Closing Date; and
12.2.2 Any and all Losses arising from any breach of the warranties, representations, covenants and agreements of Buyer contained in this Agreement which are not discovered by Seller prior to Closing. The foregoing indemnification by Buyer shall survive Closing; provided that the indemnification obligation in Section 12.2.2 shall terminate on the date which is twelve (12) months after the date of Closing.
12.3 The indemnities set forth above are in addition to Seller’s and Buyer’s other indemnification obligations contained elsewhere in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Strategic Opportunity REIT II, Inc.)
General Indemnification. The Corporation (a) For a period of one year after the Closing, if Parent, Newco and/or its officers, directors, employees, Affiliates and/or agents (each a “Parent Indemnitee” and together the “Parent Indemnitees”) suffer any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including reasonable attorneys’ fees and expenses) (“Loss”) as a result of, in connection with, or arising out of (i) the breach of any representation or warranty made by the Company contained (A) in Article III of this Agreement or (B) in any certificate delivered to Parent and Newco pursuant to Section 6.2, (ii) any breach by the Company of any of its covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date, (iii) a breach of any covenant contained in Section 5.10 and (iv) the exercise by any holder of Preferred Stock or Common Stock of their appraisal rights, if any, under Section 262 of the DGCL (it being understood that any Loss in connection with this Section 8.2(a)(iv) shall be net of the Preferred Stock Consideration or the Common Stock Consideration that such holder would have been entitled to receive as a result of the Merger hereunder), then, subject to the other provisions of this Article VIII, such Parent Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the Escrow Account.
(b) For a period of one year after the Closing, each of Parent and the Surviving Corporation, jointly and severally, agrees to indemnify, defend and hold each Investor, its affiliates, and harmless each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (the Company Securityholders as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in date of this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsAffiliates and/or agents (each a “Stockholder Indemnitee” and together the “Stockholder Indemnitees”) harmless from any Loss suffered or paid, consultantsdirectly or indirectly, representativesas a result of, successors and assigns harmless against all Losses in connection with, or arising from out of (i) the breach of any representation or warranty made by Parent or Newco contained (A) in Article IV of this Agreement to be true and correct as of the date of this Agreement or (B) in any certificate delivered to the Company pursuant to Section 6.3, (ii) any breach by Parent or Newco of any of its representations, warranties, covenants or agreements in this Agreement or in contained herein, and (iii) any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment breach by the Surviving Corporation pursuant to this Section 11 with respect to (including by way of being the successor of Newco and the Company) of any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of covenants or agreements contained herein which are to be performed by the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to Surviving Corporation after the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such LossesClosing Date. The foregoing notwithstanding, in no event shall the aggregate Parent or the Surviving Corporation be liable hereunder for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued $12,000,000.
(c) The obligations to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend indemnify and hold harmless each Investor Entity against any pursuant to clause (i) of Section 8.2(a) and all Losses pursuant to clause (as defined i) of Section 8.2(b) shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 11.2 and not subject 8.1, except for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims shall survive until final resolution thereof.
(d) As used herein, the term “Indemnification Claim” means a claim for indemnification by Parent or any Deductible other Parent Indemnitee or Limit) arising any Stockholder Indemnitee, as the case may be, for any Loss under Title IV this Article VIII (such Person making an Indemnification Claim, an “Indemnitee”). An Indemnitee may give notice of ERISAan Indemnification Claim under this Agreement, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be whether for its own Loss or for Losses incurred by any other Parent Indemnitee or Stockholder Indemnitee, as applicable, pursuant to written notice of them such Indemnification Claim executed by an officer of Parent or the Stockholder Representative, as applicable (a “Notice of Claim”), and delivered to the Stockholder Representative or Parent, as applicable (such receiving party, the “Indemnitor”), promptly after such Indemnitee becomes aware of the existence of any potential claim by such Indemnitee for indemnification under this Article VIII, but in any event before the Escrow Release Date, arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.resulting from:
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the limitations set forth in this Section 10.2 and the other limitations set forth in this Agreement, Sellers shall indemnify, defend jointly and severally indemnify the Buyer Indemnified Parties and save and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") them harmless from and against and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses which any such Buyer Indemnified Party may incur, be subject to or suffer as a result of, arising from or relating to:
(as defined belowi) incurred any breach or suffered non-fulfillment of Section 6.1(a) prior to the Closing, in each case other than to the extent accounted for on a dollar for dollar basis in the Closing Statement;
(ii) any and all Pre-Closing Imputed Underpayments (including if paid by an Investor Entity ▇▇▇ Company anytime from and after December 30, 2019, other than to the extent accounted for on a dollar for dollar basis in the Closing Statement) and any and all Seller Taxes that are not Pre-Closing Imputed Underpayments to the extent such Seller Taxes that are not Pre-Closing Imputed Underpayments exceed $1,000,000; and
(iii) any inaccuracy or breach of the representation and warranty set forth in Section 3.24(b) (at the Effective Date or the Closing Date), in each case other than to the extent accounted for on a dollar for dollar basis in the Closing Statement.
(b) Notwithstanding anything in this Agreement to the contrary, except in the case of Fraud by Sellers, Sellers’ aggregate Liability to the Buyer Indemnified Parties for any and all Losses which the Buyer Indemnified Parties may suffer as a result of, arising from or relating to this Agreement shall not exceed $490,000,000.
(c) Notwithstanding anything in this Agreement to the contrary, Losses in respect of which an Indemnitee would otherwise be entitled to indemnification shall be reduced by any amounts or benefits received (whether in the form of cash, credit or some other beneficial arrangement) in respect of such Loss, including (i) any insurance proceeds, including pursuant to the R&W Insurance Policy (net of any reasonable and documented out-of-pocket expenses incurred in obtaining such recovery, including any deductible under any insurance policy or suffered the retention under the terms of the R&W Insurance Policy) and (ii) an amount equal to the excess, if any, of (A) the reduction in Taxes of the applicable Indemnitee (which, if the Indemnitee is the Buyer, shall include reductions realized by the Buyer directly or indirectly through ownership the Utz Companies, and if the Indemnitee is an ▇▇▇ Company, shall include reductions realized by any of Series A Non-Voting Preferred Shares the Utz Companies), without duplication, by reason of a Tax deduction, credit or Conversion Sharesother Tax benefit realized as a result of such Losses with respect to the taxable period during which such Loss is incurred or the immediately succeeding taxable period over (B) the amount of any additional Tax cost incurred by such Indemnitee (which, if the Indemnitee is the Buyer, shall include additional Tax cost incurred by the Buyer directly or indirectly through the Utz Companies, and if the Indemnitee is an ▇▇▇ Company, shall include additional Tax cost incurred by any of the Utz Companies) arising out offrom such Loss or the receipt of such indemnification payments hereunder and treating the applicable Tax item as the last item to be used (collectively the “Third-Party Recovery Proceeds”).
(d) To the extent required by applicable Law, relating each Indemnitee shall take commercially reasonable efforts to mitigate any Loss in respect of which such Indemnitee is entitled to indemnification upon becoming aware of any event, state of facts, circumstances or developments which would reasonably be expected to, or resulting does, give rise thereto. Notwithstanding anything in this Agreement to the contrary, with respect to any indemnification obligation of Sellers pursuant to Section 10.2(a)(ii) or Section 10.2(a)(iii), to the extent coverage is or would reasonably be expected to be available for such Loss, the Buyer must first seek recovery under the R&W Insurance Policy before seeking indemnification from the Sellers under, and subject to the limitations in, this Article X, and Sellers shall only be under an obligation to indemnify all or part of such Loss in accordance with (aand subject to the limitations in) this Section 10.2 to the extent such Loss was not covered or partially covered under the R&W Insurance Policy (including to the extent not covered or partially covered due to the retention thereunder). The Buyer shall not be prejudiced in any way for first seeking recovery under the R&W Insurance Policy so long as the Buyer gives timely written notice to the Sellers of its right to indemnity by not later than the end of the survival period for such claim set forth in Section 10.1. Further, to avoid losing any rights under Section 10.1, the Buyer shall be permitted to make a simultaneous claim (but shall not seek recovery from Sellers to the extent coverage is or would reasonably be expected to be available under the R&W Insurance Policy for such Loss in accordance with the second preceding sentence) against the Sellers under Section 10.2(a)(ii) or Section 10.2(a)(iii) for any portion of such Loss not covered under the terms of the R&W Insurance Policy (including the retention thereunder applicable to such Loss). With respect to any indemnity claims made pursuant to Section 10.2(a)(i), the Buyer shall not be required to first seek recovery under the R&W Insurance Policy before it can proceed against Sellers.
(e) If any Buyer Indemnified Party desires to make a claim for indemnification under this Section 10.2 (an “Indemnitee”), the Indemnitee shall promptly notify the indemnifying party (an “Indemnitor”) of the claim in writing after receiving written notice of the claim or the commencement of any Proceeding by a third party (“Third Party Claim”), describing the nature of the claim, the amount thereof (if known and quantifiable) and the basis thereof; provided that the failure to so notify an Indemnitor shall not relieve an Indemnitor of its indemnification obligations under Section 10.2, except to the extent that an Indemnitor is materially prejudiced thereby. The Parties shall cooperate in good faith to resolve any disputed claim for indemnification. Any Indemnitor shall be entitled to participate in the defense of such Third Party Claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the control of the defense thereof by providing notice to the Indemnitee within thirty (30) days of receipt of the written notice described in the first sentence of this Section 10.2(e) and in connection therewith, by irrevocably agreeing to indemnify the Indemnitee for all Losses relating to such Third Party Claim, subject to the limitations in this Section 10.2. If the Indemnitor assumes the defense of such Third Party Claim, it shall appoint counsel that is reasonably acceptable to the Indemnitee (which the Parties hereby agree that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (“K&E”) is reasonably acceptable counsel for the Buyer and Cozen ▇’▇▇▇▇▇▇ is reasonably acceptable counsel for Sellers) to be the lead counsel in connection with such defense; provided that (i) the Indemnitee shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose if the fees and expenses of such separate counsel are borne entirely by the Indemnitee; (ii) the Indemnitor shall not be entitled to assume control of such defense if (A) the claim for indemnification relates to or arises in connection with any criminal Proceeding, (B) the claim primarily seeks an injunction or other equitable relief, or (C) the claim presents, under applicable standards of professional conduct, a legal conflict on any significant issue for one counsel to represent both the Indemnitee and the Indemnitor; and (iii) if an Indemnitor shall control the defense of any such Third Party Claim, such Indemnitor shall obtain the prior written consent of the Indemnitee (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a Third Party Claim; provided, however, subject to the limitations set forth in this Section 10.2, an Indemnitor may settle or consent to the entry of judgment in respect of such claim without the consent of the Indemnitee, if such settlement or judgment is for (x) money damages only, (y) includes a full and unconditional release of the Indemnitee from any further Liability in respect of such claim and (z) does not contain any admission of wrongdoing on the part of the Indemnitee. The Indemnitee may take any actions reasonably necessary to defend any Third Party Claim prior to the time it receives notice from the Indemnitor that it will assume the defense of such claim. If the Indemnitor makes any payments on any Third Party Claim pursuant to this Section 10.2, the Indemnitor shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnitee to any insurance benefits or other claims of the Indemnitee with respect to such claim, including any claims against third parties.
(f) Except in the case of Fraud by Sellers, in the event the Closing occurs, the Buyer Indemnified Parties’ sole and exclusive source of recovery for any Losses due to an inaccuracy or breach of any representation or warranty (other than Section 3.24(b)) of Sellers or the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements Company in this Agreement or in any certificate delivered by Sellers or other instrument delivered the Company pursuant heretoto this Agreement shall be recovery from the insurance coverage provided by the R&W Insurance Policy (whether or not available thereunder), includingincluding if the R&W Insurance Policy converts to a pro rata policy, without limitation, the Documents. Notwithstanding anything and in no event will any Buyer Indemnified Party make a claim for indemnification pursuant to the contrary in this Agreement, including this Section 10.2, in respect of any Loss resulting from any inaccuracy or breach of any representation or warranty (other than Section 3.24(b)) of Sellers or the Company pursuant to this Agreement or any certificate delivered by Sellers or the Company pursuant to this Agreement (except to the extent such Loss is expressly subject to indemnification pursuant to the terms of Sections 10.2(a)(i) or 10.2(a)(ii) hereof, but subject to Section 10.2(d)). Subject to the limitations set forth in this Section 10.2, to the extent Sellers are liable to any Buyer Indemnified Party for any indemnifiable Loss pursuant to Section 10.2(a), then within three (3) Business Days after the final, binding determination of such indemnifiable Loss, Sellers must pay, or cause to be paid, at the election of Sellers in their sole discretion, (i) by wire transfer of immediately available funds to the Buyer Indemnified Party, the amount of such indemnifiable Loss (after taking into account any recovery under the R&W Insurance Policy, if applicable), or (ii) by the surrender by the Sellers and cancelation, for no additional consideration, of a number of Retained Company Units and the same number of shares of Buyer Class V Voting Stock equal to the quotient of (A) the amount of such indemnifiable Loss divided by (B) the Common Stock Price as of the date of such final and binding determination pursuant to this Agreement, or any combination of the foregoing clauses (i) and (ii) in a total amount equal to the amount of such indemnifiable Loss payable hereunder.
(g) To the extent that any Third-Party Recovery Proceeds are recovered by an Indemnitee after the related indemnification payment has been made by the Corporation Indemnitor pursuant to this Section 11 10.2 for the same Loss, in order to prevent any recovery of a Loss more than once in respect of the same Losses suffered, such Indemnitee shall pay over to the Indemnitor, in cash, the amounts of such Third-Party Recovery Proceeds for which indemnification payments have previously been made by the Indemnitor, promptly after such Third-Party Recovery Proceeds are actually recovered, but not more than the amount of indemnification payment made by Indemnitor pursuant to this Section 10.2. If permitted by applicable Law, in lieu of the foregoing, such Buyer Indemnified Party may subrogate or assign its rights to recover under the R&W Insurance Policy to Sellers or their designee.
(h) Notwithstanding anything in this Agreement to the contrary, for the purposes of this Section 10.2, for purposes of (i) determining whether an inaccuracy or breach of a representation or warranty has occurred pursuant to this Agreement and (ii) calculating the amount of Losses arising from an inaccuracy or breach of any representation and warranty for which an Indemnitee is entitled to indemnification under this Agreement, each representation and warranty in this Agreement (and the corresponding sections of the Disclosure Letter) shall be read without giving effect to the terms “material,” “in all material respects,” “Material Adverse Effect” or similar phrases or qualifiers contained in such representation or warranty (as if such words or phrases were deleted from such representation and warranty).
(i) When determining the amount of Losses for which a claim under Section 10.2(a) has been made, to the extent the Buyer Indemnified Party seeking recovery or that receives payment for such Loss is not an ▇▇▇ Company, the final amount of indemnifiable Losses payable under this Agreement to such Buyer Indemnified Party shall be reduced to reflect the Buyer’s percentage ownership interest in the Company as of the date of the final and binding determination of such Loss pursuant to this Agreement; provided that no such reduction shall be made if such Buyer Indemnified Party suffers such Loss directly.
(j) In no event shall any Indemnitee be entitled to duplicate compensation with respect to the same Losses under more than one provision of this Agreement and the Ancillary Agreements.
(k) Except in the case of Fraud, in the event the Closing occurs, the sole and exclusive remedy for any and all claims against any Party arising under, out of, related to or in connection with this Agreement, shall be the rights of indemnification set forth in this Section 10.2 and, with respect to any Losses covenant or agreement, specific performance or other equitable remedies, and no Person will have any other entitlement, remedy or recourse, whether in Contract, tort or otherwise payable hereunder as a result of a breach of its representations and warranties against any Party (other than any Losses resulting from breaches specific performance, injunction or other equitable relief pursuant to the terms of Section 12.10), it being agreed by the representations Parties that all of such other remedies, entitlements and warranties recourse are waived and released by the Parties to the fullest extent permitted by Law. The provisions of this Section 10.2 and the limited remedies provided in Section 2.7, as they relate 10.2 were specifically bargained for by the Parties and were taken into account by them in arriving at the terms and conditions of this Agreement. No Party shall be entitled to Taxes, Sections 2.26 and 2.27, to any covenants contained in a rescission of this Agreement or any other Document and to willful misrepresentationfurther indemnification or rights or claims of any nature whatsoever, fraud or deceit, all of which shall not be subject are hereby waived by the Parties to the Deductible fullest extent permitted under applicable Law.
(l) All indemnification payments under this Section 10.2 shall be deemed adjustments to the Aggregate Consideration for all purposes, including for income Tax purposes, to the extent permitted by applicable Law.
(m) In connection with the Buyer making an indemnification claim against the Sellers pursuant to this Article X following the Closing, any determination to be made by the Buyer shall be made by the Audit Committee of the Buyer Board.
(n) In the event of any indemnification claim by the Buyer against the Sellers under this Article X, the non-prevailing Party (Sellers or LimitBuyer, as applicable) shall be payable required to reimburse the prevailing Party (a) until the time Buyer or Sellers, as such Losses shall aggregate (on a cumulative basis and not on a per item basisapplicable) for all Investor Entities more than US$5,000,000 (the "Deductible")its attorneys’ fees, costs and then only expenses in connection with such indemnification claim, to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect not otherwise obligated to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Datereimbursed.
Appears in 1 contract
Sources: Business Combination Agreement (Collier Creek Holdings)
General Indemnification. The Corporation (a) Subject to the terms and conditions of this Article VII, Member shall indemnify, defend and hold each Investorharmless Parent and its directors, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliatesAffiliates, employees, agentsagents and representatives (collectively, consultantsthe “Parent Indemnified Parties”), representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) that are incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership any of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, them in connection with or resulting from any of the following:
(ai) any breach of, or inaccuracy in, any representation or warranty made by Member in this Agreement;
(ii) any breach of any of the representations, warranties, covenants or agreements covenant made by it Member in this Agreement Agreement;
(iii) any Closing Indebtedness, to the extent not taken into account in determining the Final Closing Consideration;
(iv) any Transaction Expense, to the extent not taken into account in determining the Final Closing Consideration;
(v) any matter identified on Schedule 3.13 or in Schedule 3.16(a); or
(vi) the enforcement by any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and Parent Indemnified Party of its indemnification rights under this Agreement.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by the Corporation financed in whole or in partterms and conditions of this Article VII, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, Parent shall indemnify, defend and hold harmless Member and his agents and representatives (collectively, the Corporation, its affiliates, “Member Indemnified Parties”) from and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising that are incurred or suffered by any of them in connection with or resulting from any of the following:
(i) any breach of, or inaccuracy in, any representation or warranty made by Parent in this Agreement;
(ii) any breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary covenant made by Parent in this Agreement, no indemnification payment ; or
(iii) the enforcement by the Corporation Member Indemnified Parties of their indemnification rights under this Agreement.
(c) Subject to the provisions of Section 7.2(d), (i) Member shall have no obligation to indemnify Parent Indemnified Persons for any Losses pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result claims for breaches of a breach of its representations and warranties (other than any Fundamental Representations) under Section 7.2(a)(i) unless and until the total amount of Losses resulting from incurred by Parent Indemnified Parties with respect to breaches of, or inaccuracies in, representations and warranties exceeds $15,000 (the “Threshold”), in which case Member will be liable for all such Losses in excess of the Threshold; and (ii) the maximum aggregate obligation of (x) Member for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i), and (y) Parent for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed an amount equal to the Holdback Amount (the “Cap”).
(d) In no event shall the Threshold, the Cap or the limitations set forth in Section 7.2(c) apply to Losses suffered or incurred by any Indemnified Party as a result of, or arising out of, (i) inaccuracies in, or breach of, any Fundamental Representation, (ii) the matters set forth in Sections 7.2(a)(ii) through 7.2(a)(vi), Sections 7.2(b)(ii) or 7.2(b)(iii), or Section 6.1, or (iii) any fraud or intentional misrepresentation by a Party.
(e) The representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which the Ancillary Agreements shall not be subject to the Deductible affected or Limit) diminished by, and no right of indemnification hereunder shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible")limited by reason of, and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; any investigation or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on audit conducted before or after the Closing Dateor the knowledge of any Party of any breach of a representation, warranty, covenant or agreement by the other Party at any time, or the decision of any Party to complete the Closing.
Appears in 1 contract
Sources: Merger Agreement (Transcat Inc)
General Indemnification. The Corporation shall indemnify, defend Each Seller and hold Servicer each Investor, hereby agrees to indemnify Purchaser (together with its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors shareholders, counsel and assigns (each employees, each, an "Investor Entity"“Indemnified Party”) harmless from and against any and all Losses third party claims, losses and liabilities (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, reasonable attorneys’ fees), but without duplication of any amounts paid upon an Event of Repurchase as set forth in Section 6(a) above (all of the Documentsforegoing, and (bwithout duplication, being collectively referred to as “Indemnified Amounts”) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole arising out of or in part, directly or indirectly, with proceeds resulting from the sale of any of the Series A Non-Voting Preferred Shares following: (i) the sale to Purchaser of any Receivable which purports to be a Purchased Receivable as to which the representations and warranties made herein are not materially true and correct on the Purchase Date therefor; (ii) any representation or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of warranty made or deemed made by any Seller or Servicer (or any of its representations, warranties, covenants respective officers) under or agreements in connection with this Agreement or (except with respect to the Purchased Receivables) which shall have been incorrect in any certificate material respect when made; (iii) the failure by any Seller or other instrument delivered pursuant heretoServicer to comply with any applicable law, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 rule or regulation with respect to any Losses otherwise payable hereunder as Purchased Receivable; (iv) the failure to vest in Purchaser a result perfected interest in each Purchased Receivable and the proceeds and Collections in respect thereof free and clear of a breach any liens or encumbrances of its representations and warranties any kind or nature whatsoever (other than those granted under this Agreement); (v) any Losses Dispute or any other claim related to such Purchased Receivable (or any portion thereof); (vi) the commingling by any Seller or Servicer of Collections at any time with other funds of any Seller, Servicer or any other Person; (vii) reliance by Purchaser in good faith on any request or instruction from Seller Representative or any other action taken by Purchaser in accordance with this Agreement in connection with or resulting from breaches the Sellers' appointment of the representations and warranties Wolverine as Seller Representative; or (viii) any failure by Servicer to perform its duties or obligations as Servicer hereunder in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in accordance with this Agreement or any claim brought by any Person other Document and to willful misrepresentation, fraud or deceit, which than an Indemnified Party arising from Servicer’s collection activities. The foregoing indemnification shall not be subject to apply in the Deductible case of any claims, losses or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only liabilities to the extent that such Lossesresulting from the Purchaser’s having become obligated to pay the Deferred Purchase Price for a Purchased Receivable on its Deemed Paid Date or found by a final and nonappealable decision of a court of competent jurisdiction to have resulted solely from (i) the gross negligence or willful misconduct of an Indemnified Party as determined in a final non-appealable judgment by a court of competent jurisdiction, in the aggregate for all Investors, exceed the Deductible; (ii) an Account Debtor Insolvency Event or (biii) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess material breach of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred this Agreement by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after Indemnified Party. Amounts due hereunder shall accrue interest at the Closing DateDelinquent Rate.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wolverine World Wide Inc /De/)
General Indemnification. The Corporation (a) Subject to the other provisions of this Article 11 and Section 8.10, from and after the Closing, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Seller and Parent shall jointly and severally indemnify, defend and hold Buyer and its Affiliates and any officers, directors, employees and agents of Buyer or any of its Affiliates (each a “Buyer Indemnitee”) harmless from any actual damages, losses, liabilities, obligations, claims of any kind, interest or reasonable out-of-pocket expenses (including reasonable attorneys’ fees and expenses incurred in investigating, defending or settling any Action or enforcing any right to indemnification under this Agreement) (each, a “Loss”) suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of:
(i) any breach of any representation or warranty made by the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Parent or Seller contained in Article 3, Article 4 or Article 5 of this Agreement or in any certificate delivered by Parent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Seller or the Company, as applicable, prior to the Closing Date, in each case, pursuant to this Agreement;
(ii) any breach by (A) Parent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Seller of any of the covenants contained herein which are to be performed by Parent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Seller before the Closing and (B) Parent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Seller of any of the covenants contained herein which are to be performed by Parent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Seller after the Closing;
(iii) Loss Sharing Claims to the extent necessary so that Seller (and the other Seller Indemnitees) shall bear, whether directly or through the indemnification provided in this Section 11.2(a)(iii), (A) first, seventy-five percent (75%) of each claim in respect of such Losses until the aggregate amount paid by Seller or any other Seller Indemnitee pursuant to Section 11.2(a)(iii)(A) is equal to sixty percent (60%) of the Shared Loss Cap and (B) thereafter, twenty-five percent (25%) of each claim in respect of such Losses until the aggregate amount paid by Seller or any other Seller Indemnitee pursuant to Section 11.2(a)(iii)(A) is equal to the Shared Loss Cap; and
(iv) any Retained Liability. In the event a Loss would be eligible for indemnity under either Section 11.2(a)(i) or Section 11.2(a)(iii), on the one hand, and Section 11.2(a)(iv), on the other hand, such Loss shall be recoverable only under Section 11.2(a)(iv). In the event a Loss would be eligible for indemnity under either Section 11.2(a)(i) or Section 10.2(a)(iii), such Loss shall be recoverable only under Section 11.2(a)(iii).
(b) Subject to the other provisions of this Article 11 and Section 8.10, from and after the Closing, Buyer shall indemnify, defend and hold each Investor▇▇▇▇▇▇ ▇▇▇▇▇▇▇, its affiliates, Parent and each of Seller and their respective Affiliates and any officers, directors, partnersemployees and agents of Parent, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns Seller or any of their respective Affiliates (each an "Investor Entity"a “Seller Indemnitee”) harmless from and against all Losses (as defined below) incurred any Loss suffered or suffered by an Investor Entity (whether incurred or suffered paid, directly or indirectly through ownership of Series A Non-Voting Preferred Shares indirectly, as a result of, in connection with, or Conversion Shares) arising out of, relating to, or resulting from :
(ai) any breach of any of the representations, warranties, covenants representation or agreements warranty made by it Buyer contained in this Agreement Article 6 or in any agreement, certificate or other instrument delivered to the Company pursuant hereto including, without limitation, the Documents, and to this Agreement;
(bii) any third party claim made against an Investor Entity relating to any transaction breach by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale (A) Buyer of any of the Series A Non-Voting Preferred Shares covenants or Common Shares hereunder. Each Investor, severally agreements contained herein which are to be performed by Buyer before the Closing and not jointly, shall indemnify, defend and hold (B) Buyer or the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach Company of any of its representations, warranties, the covenants or agreements contained herein which are to be performed by Buyer or the Company following the Closing;
(iii) Loss Sharing Claims to the extent necessary so that Buyer (and the other Buyer Indemnitees) shall bear, whether directly or through the indemnification provided in this Agreement or Section 11.2(b)(iii), (A) first, twenty-five percent (25%) of each claim in any certificate or other instrument delivered pursuant hereto, including, without limitation, respect of such Losses until the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment aggregate amount paid by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement Seller or any other Document and Seller Indemnitee pursuant to willful misrepresentationSection 11.2(a)(iii)(A) is equal to sixty percent (60%) of the Shared Loss Cap, fraud (B) second, seventy-five percent (75%) of each claim in respect of such Losses until the aggregate amount paid by Seller or deceit, which shall not be subject any other Seller Indemnitee pursuant to Section 11.2(a)(iii)(A) is equal to the Deductible or LimitShared Loss Cap and (C) shall be payable thereafter one hundred percent (a100%) until the time as of any such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor Shared Loss Cap; and
(iv) any claim or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity Action brought against Seller or any and all Losses (as defined in Section 11.2 and not subject to Seller Indemnitee at any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, time on or after the Closing DateDate relating to actions taken by any of the Group Companies or Buyer following the Closing (other than any Action the underlying facts and circumstances of which would otherwise entitle any Buyer Indemnitee to indemnification pursuant to Section 8.7 or this Article 11), including any claim or Action resulting from or arising out of any act or omission, an actual or alleged breach or violation of Law, License or Permit or Contract by the Company or any of its Subsidiaries, in each case, following the Closing in connection with the performance by the Company or any of its Subsidiaries of its obligations under MS Servicing Agreements and the Servicing Agreements. In the event a Loss would be eligible for indemnity under either Section 11.2(b)(i) or Section 11.2(b)(iii), such Loss shall be recoverable only under Section 11.2(b)(iii).
(c) The obligations to indemnify and hold harmless pursuant to this Section 11.2 shall survive the consummation of the transactions contemplated hereby for the applicable period set forth in Section 11.1, except for claims for indemnification asserted prior to the end of such applicable period (which claims shall survive until final resolution thereof). No Buyer Indemnitee shall be entitled to be indemnified from or held harmless against any Loss pursuant to the terms of this Section 11.2 unless such Buyer Indemnitee delivers written notice of its claim for indemnification (a “Notice of Claim”) to Seller pursuant to Section 12.2 on or prior to the expiration of the applicable survival period set forth in Section 11.1. No Seller Indemnitee shall be entitled to be indemnified from or held harmless against any Loss pursuant to the terms of this Section 11.2 unless such Seller Indemnitee delivers a Notice of Claim to Buyer pursuant to Section 12.2 on or prior to the date of expiration of the applicable survival period set forth in Section 11.1.
Appears in 1 contract
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of Expense Indemnification. Whether or not (i) any of the representationsLimestone Certificates are sold or the Closing occurs or (ii) such Expense Indemnified Person shall be indemnified as to such Indemnified Expense by any other Person, warrantiesEl Paso agrees, covenants or agreements made by it in this Agreement or in any agreementsubject to Section 7.11 hereof, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnifyprotect, defend and hold harmless each Investor Entity Expense Indemnified Person on an After-Tax Basis against any and all Losses (as defined in Section 11.2 and not subject to any Deductible Indemnified Expenses directly or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them indirectly resulting from or arising out of or relating alleged by a Person other than such Expense Indemnified Person to result from or arise out of:
(i) this Agreement, the "Transaction Documents" as defined in the Phase II Participation Agreement (the "Phase II Transaction Documents") or any other Transaction Document or any of the transactions contemplated hereby and thereby whether or not in compliance with the terms of the Transaction Documents;
(ii) (A) any act or omission (whether negligent or otherwise) by El Paso or any Affiliate of El Paso, (B) any breach of, failure to perform or observe, or other non-compliance with, any covenant, condition or agreement to be performed by, or other obligation of, El Paso or any Affiliate of El Paso under any of the Transaction Documents, or (C) the breach of any representation or warranty (without giving effect to any WFI Entity qualification with respect to the materiality thereof) made by El Paso in any of the Transaction Documents or in any document or certificate delivered in connection therewith;
(iii) any violation of Applicable Law by El Paso or any of its Related Persons in respect of the transactions contemplated by the Transaction Documents or the Phase II Transaction Documents;
(iv) any sale, transfer or holding of Limestone Certificates being deemed to result in a non-exempt "prohibited transaction" under ERISA and/or Section 4975 of the Code due to any act or having been an ERISA Affiliate omission by El Paso or its Affiliates; provided that the Expense Indemnification set forth in this clause (iv) shall not apply to any Certificateholder to the extent that such "prohibited transaction" results from a breach by such Certificateholder of its representations, warranties or covenants contained in the Investment Certificate delivered by it pursuant to this Agreement and the Limestone Trust Agreement;
(v) any Chaparral Extraordinary Liabilities except to the extent attributable to any Replacement Period; provided that the Expense Indemnification provided for in this Section 6.1(a)(v) shall continue to apply during any Replacement Period for any Chaparral Extraordinary Liabilities to the extent attributable to events or circumstances that existed prior to the Replacement Period and with respect to which a Successor Manager has (x) pursued or continued the same course of action as the Management Company in accordance with standard utility or other applicable industry practices (if the Management Company knew of and had taken a course of action in respect of such events or circumstances) or (y) acted in accordance with standard utility or other applicable industry practices (if the Management Company did not know of such events or circumstances or had taken no action as a result thereof);
(vi) any other Person agreement, activity or action or failure to take action or any violation of Applicable Law by or of either of Chaparral and Mesquite, except to the extent attributable to any such agreement, action, failure to take action or violation made or taken or omitted to be made or taken during any Replacement Period;
(other than another WFI Entity)vii) Documentary Taxes;
(viii) [reserved];
(ix) the acquisition or ownership by Chaparral, whether Mesquite or any Subsidiary of Mesquite of the New Assets, except for any New Assets acquired during any Replacement Period; and
(x) any of the Certificateholders or Limestone becoming (A) subject to regulation as a "public utility" as such Losses term is defined in Section 201 of the FPA, or (B) subject to the requirements of Section 203 of the FPA, in each case solely by virtue of any Certificateholder's acquiring and holding the Limestone Certificates and exercising, or the Class A Member exercising, the rights available to such Certificateholder under the Limestone Trust Agreement or to such Class A Member under the Chaparral LLC Agreement in the manner contemplated by the Limestone Trust Agreement or the Chaparral LLC Agreement; provided that this clause (x) shall not apply to any Indemnified Expenses to the extent such Indemnified Expenses result from or arise out of any of the following actions by the Class A Member: (1) such Class A Member chooses not to file, or relate cause to be filed by the appropriate entity, an application pursuant to Section 203 of the FPA in the circumstances described in Section 6.1 of the Chaparral LLC Agreement and Section 5.2 of the Management Agreement, (2) such Class A Member causes the Disposition of any event asset of Chaparral or state Mesquite pursuant to an Asset Disposition or pursuant to Section 11.3 of facts occurring the Chaparral LLC Agreement without the filing by the appropriate entity of an application pursuant to Section 203 of the FPA with respect to such Disposition and the receipt of any requisite order pursuant thereto, or existing before(3) such Class A Member acts, on or after the Closing Datecauses Chaparral or Mesquite (or any other holder of FERC jurisdictional assets) to act, in material contravention of any such filing referred to in subclause (1) or (2) above or any order received in respect thereof.
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the limitations in Section 7.2(c), Seller and each Shareholder shall, jointly and severally, indemnify, defend and hold harmless Buyer and its members, managers, stockholders, directors, officers, Affiliates, employees, agents and representatives (collectively, the “Buyer Indemnified Parties”), 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 misrepresentation or breach of, or inaccuracy in, any representation or warranty made by Seller or the Shareholders in this Agreement or any Ancillary Agreement;
(ii) any breach of any covenant made by Seller or the Shareholders in this Agreement or any Ancillary Agreement;
(iii) the Retained Liabilities;
(iv) any matters identified on Schedule 7.2(a)(iv); or
(v) the enforcement by Buyer Indemnified Parties of any indemnification rights under this Agreement.
(b) Subject to the limitations in Section 7.2(c), Buyer shall indemnify, defend and hold harmless Seller, each Investor, its affiliatesShareholder, and each of their respective officersagents and representatives (collectively, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity"the “Seller Indemnified Parties”) harmless from and against all Losses (as defined below) that are incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership any of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, them in connection with or resulting from each of the following:
(ai) any misrepresentation or breach of any representation or warranty made by Buyer in this Agreement or any Ancillary Agreement;
(ii) any breach of any of the representations, warranties, covenants or agreements covenant made by it Buyer in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and Ancillary Agreement;
(biii) any third party claim made against an Investor Entity relating Assumed Liability; provided that there shall be no indemnification under this Section 7.2(b) for any Losses for which Buyer is entitled to any transaction indemnification pursuant to Section 7.2(a); or
(iv) the enforcement by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each Seller Indemnified Parties of their respective officers, directors, employees, agents, consultants, representatives, successors indemnification rights under this Agreement.
(c) Notwithstanding the foregoing and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything subject to the contrary in proviso at the end of this Agreementparagraph and the terms of this Article VII, no (i) Seller and the Shareholders shall not be obligated to provide any indemnification payment by the Corporation for Losses pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result claims (other than Third Party Claims) for breaches of a breach of its representations and warranties (other than any Fundamental Representations) under Section 7.2(a)(i) unless the aggregate amount of Losses resulting from incurred by Buyer Indemnified Parties with respect to such breaches of representations and warranties exceeds $13,700 (the “Threshold”), in which case Seller and the Shareholders will be liable for all Losses without regard to the Threshold, and (ii) Buyer shall not be obligated to provide any such indemnification for Losses pursuant to claims (other than Third Party Claims) for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), unless the aggregate amount of Losses incurred by Seller Indemnified Parties with respect to such breaches of representations and warranties exceeds the Threshold, in which case Buyer will be liable for all Losses without regard to the Threshold. The maximum aggregate obligation of (i) Seller and Shareholders for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i) shall not exceed $478,000 (the “Cap”), and (ii) Buyer for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed the Cap. Neither the Threshold nor the Cap shall apply to Losses arising in respect of claims for misrepresentations and breach of the Fundamental Representations.
(d) In no event shall the limitations set forth in Section 7.2(c) apply to Losses suffered or incurred by any Indemnified Party as a result of, or arising out of, (A) the matters set forth in Sections 7.2(a)(ii) through 7.2(a)(v), or 7.2(b)(ii) through (iv), or (B) any fraud or intentional misrepresentation by a party.
(e) The representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which the Ancillary Agreements shall not be subject to the Deductible affected or Limit) diminished by, and no right of indemnification hereunder shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; limited by reason of any investigation or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on audit conducted before or after the Closing Dateor the knowledge of any party of any breach of a representation, warranty, covenant or agreement by the other party at any time, or the decision of any party to complete the Closing.
(f) For purposes of determining the existence of any misrepresentation or breach of warranty, and calculating the amount of any Losses incurred in connection with any such misrepresentation or breach of warranty, any and all references to material or Material Adverse Effect (or other correlative terms) shall be disregarded.
Appears in 1 contract
Sources: Asset Purchase and Contribution Agreement (Andover National Corp)
General Indemnification. (a) The Corporation shall indemnifyVendors, defend 632M, Rich-Mar, M▇▇▇ and FFT hereby jointly and severally agree to indemnify and hold each Investor, harmless the Purchaser and its affiliates, Affiliates and each of their respective officers, directors, partners, managing directors, affiliatesofficers, employees, agents, consultants, representatives, successors and assigns assigns, (each an "Investor Entity"collectively, the “Purchaser Indemnified Parties”):
(i) harmless for a period of two (2) years from the Closing Date from and against and in respect of any and all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) resulting from, arising out of, based on or relating to, or resulting from :
(aA) any breach the failure of any representation or warranty of the representationsVendors, warrantiesand M▇▇▇, covenants or agreements made by it set forth in this Agreement Agreement, any Transaction Document or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any on behalf of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each InvestorVendors pursuant to this Agreement, severally to be true and not jointly, shall indemnify, defend correct in all respects both as of the date of this Agreement and hold on the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from Closing Date;
(B) the breach of any covenant or other agreement on the part of its representations, warranties, covenants or agreements in the Vendors under this Agreement or any Transaction Document;
(C) any Excluded Liability;
(D) any Release of Hazardous Materials by or held on behalf of (i) the Vendors or (ii) any Person for whose actions the Vendors are responsible in any certificate law in, on, at, or other instrument delivered pursuant heretofrom the Stores which occurred, includingor resulted from operations occurring, without limitation, the Documents. Notwithstanding anything as of or prior to the contrary in this Agreement, no indemnification payment by the Corporation pursuant Closing; any tort liability to this Section 11 with respect to any Losses otherwise payable hereunder third parties as a result of any Releases or from exposure to Hazardous Materials arising from any Releases as of or prior to Closing; notification or designation under any Environmental Law as a breach potentially responsible party for onsite or offsite disposal of its representations Hazardous Materials, which disposal occurred as of or prior to the Closing; or any other Environmental Costs and warranties Liabilities and any other Environmental Claim or Remedial Action resulting from or based upon anything related to the Stores as of or prior to Closing; and
(ii) for an unlimited period from and against and in respect of and Ninety-Two and three quarters (92.75%) Percent of all Losses resulting from, arising out of, or based on or relating to the provision of financial services by the Vendors to their customers prior to the Closing Date, (other than any Losses resulting from breaches from, arising out of or based on or calculated in reference to the receipt by the Purchaser or any Affiliate of the representations Purchaser of any royalty payments as a franchisor in respect of the provisions of such services by the Vendors), including without restricting the generality of and warranties subject to the foregoing, payments of any judgment or settlement by the Purchaser in Section 2.7any class proceedings in respect of payday loan transactions conducted by the Vendors with their customers prior to the Effective Time, as they relate other than payments of any judgment or settlement by the Purchaser resulting from, arising out of or based on or calculated in reference to Taxesthe receipt by the Purchaser or any Affiliate of the Purchaser of any royalty payments in respect of such payday loan transactions.
(iii) For an unlimited period from and against and in respect of all Losses resulting from, Sections 2.26 arising out of, based on or relating to fraud by the Vendors or the Vendor Group.
(b) Purchaser agrees to indemnify and 2.27hold harmless the Vendors and their respective Affiliates, to and their respective directors, officers, employees, agents, successors and assigns (collectively, the “Vendor Indemnified Parties”):
(i) for a period of two (2) years from the Closing Date from and against and in respect of any covenants contained and all Losses resulting from, arising out of, based on or relating to:
(A) the failure of any representation or warranty of the Purchaser set forth in this Agreement or any other Purchaser Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible any certificate or Limit) shall be payable (a) until the time as such Losses shall aggregate (instrument delivered by or on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess behalf of the Purchase Price Purchaser pursuant to this Agreement, to be true and correct in all respects both as of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determinationthis Agreement and on the Closing Date;
(B) the breach of any covenant or other agreement on the part of the Purchaser under this Agreement or any Purchaser Document;
(the "Limit"). The Corporation shall also indemnify, defend C) any Contract Liabilities; and
(ii) for an unlimited period from and hold harmless each Investor Entity against any and in respect of Seven and one quarter (7.25%) Percent of all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them resulting from arising out of of, or based on or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out the provision of or relate payday loans by the Vendors to any event or state of facts occurring or existing before, on or after their customers prior to the Closing DateEffective Time.
Appears in 1 contract
General Indemnification. The Corporation shall 8.1 Subject to Clause 8.5, Vendor agrees to indemnify, defend and hold each Investor, harmless the Purchaser (and its affiliates, and each of their respective officers, directors, partners, managing directors, affiliatesofficers, employees, agents, consultantsrepresentatives, representativesAffiliates, successors and assigns (each an "Investor Entity"assigns) harmless from and against all Losses losses, liabilities, damages, deficiencies, demands, claims, actions, judgments or causes of action, assessments, costs or expenses (as defined belowincluding, without limitation, interest, penalties and reasonable legal fees and disbursements) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) based upon, arising out of, relating to, of or resulting from (a) otherwise in respect of any material inaccuracy in or any material breach of any representation, warranty, covenant or agreement of the representations, warranties, covenants or agreements made by it Vendor contained in this Agreement or in any agreement, certificate or other instrument documents delivered pursuant hereto to this Agreement.
8.2 Subject to Clause 8.5, the Purchaser agrees to indemnify, defend and hold harmless the Vendor (and its directors, officers, employees, agents, representatives, Affiliates, successors and assigns) from and against all losses, liabilities, damages, deficiencies, demands, claims, actions, judgments or causes of action, assessments, costs or expenses (including, without limitation, the Documentsinterest, penalties and (breasonable legal fees and disbursements) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed based upon, arising out of or otherwise in whole or in part, directly or indirectly, with proceeds from the sale respect of any of the Series A Non-Voting Preferred Shares material inaccuracy in or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the any material breach of any representation, warranty, covenant or agreement of its representations, warranties, covenants or agreements the Purchaser contained in this Agreement or in any certificate or other instrument documents delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 Agreement.
8.3 The right of a Party to indemnification, payment, reimbursement, or other remedy based upon such representations, warranty, covenant, or obligations of the other Party will not be affected by the Due Diligence Investigations conducted or any knowledge acquired at any time by the former Party, whether before or after the execution and delivery of this Agreement or the Completion Date, with respect to the accuracy or inaccuracy of, or compliance with, such representation, warranty, covenant, or obligation.
8.4 For the avoidance of doubt, the indemnity provided by a Party pursuant to this Clause 8 shall not be limited by any Losses otherwise payable hereunder as a result pre-existing knowledge of a the other Party of any inaccuracy in or any breach of its representations and warranties (other than any Losses resulting from breaches representation, warranty, covenant or agreement of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants former Party contained in this Agreement or in any other Document and documents delivered pursuant to willful misrepresentationthis Agreement, fraud whether or deceit, which shall not be subject to such inaccuracy or breach have been uncovered by the Deductible Due Diligence Investigations.
8.5 In respect of any liability arising as a result of the indemnities set out in Clause 8.1 above (in the case of the Vendor) or Limit) shall be payable Clause 8.2 (a) until in the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (case of the "Deductible"Purchaser), and then only to the extent Parties agrees that such Losses, in the aggregate for all Investors, exceed liability (if any) on the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess part of the Purchase Price Vendor shall in aggregate be limited to a monetary sum of US$100,000, and the liability (if any) on the part of the shares issued Purchaser shall in aggregate be limited to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms a monetary sum of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateUS$100,000.
Appears in 1 contract
Sources: Sale & Purchase Agreement (Fragmented Industry Exchange Inc)
General Indemnification. The Corporation shall (a) Subject to Sections 10.02 and 10.03, from and after the Closing Date, the Stockholders (other than those dissenting stockholders exercising rights of appraisal under Section 262 who do not receive Parent Common Shares in the Merger) hereby agree, severally and not jointly, to indemnify, defend and hold harmless Parent and its Affiliates (other than each Investor, its affiliatesStockholder and their respective Affiliates), and each of their respective directors, officers, directorsemployees and agents (each, partnersa “Parent Indemnified Party” and, managing directorscollectively, affiliatesthe “Parent Indemnified Parties”), employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against any and all Losses losses, expenses (as defined belowincluding attorneys’ fees and expenses), damages, liabilities, fines, penalties, judgments, actions, claims and costs (collectively, “Losses”) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) the Parent Indemnified Parties arising out of, relating to, based upon or resulting from (ai) any breach of any of the representations, warranties, covenants representation or agreements made by it warranty contained in this Agreement or referred to in Article 4 or Article 6 or in any agreementschedule or exhibit or in the certificate delivered by or on behalf of any Principal Stockholder or the Company pursuant to Section 9.02(a), certificate 9.02(c), 9.02(d) or other instrument delivered 9.02(e) and (ii) any breach by any Principal Stockholder or the Company of, or any failure of any Principal Stockholder or the Company to perform, any of the covenants, agreements or obligations contained in or made pursuant hereto includingto this Agreement; provided that in the case of any breach by any Principal Stockholder of any representation or warranty, without limitationcovenant, agreement or obligation of such Principal Stockholder referred to in clause (i) or (ii) immediately above, only such breaching Principal Stockholder shall be obligated to indemnify the Documents, and Parent Indemnified Parties for Losses resulting from such breach.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by Sections 10.02 and 10.03, from and after the Corporation financed in whole or in partClosing Date, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall Parent hereby agrees to indemnify, defend and hold harmless the Corporation, its affiliatesStockholders and their Affiliates, and each of their respective directors, officers, directorsemployees and agents (each, employeesa “Company Indemnified Party” and, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitationcollectively, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"“Company Indemnified Parties”), from and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses incurred or suffered by the Company Indemnified Parties arising out of, based upon or resulting from (i) any breach of any representation or warranty contained in or referred to in Article 5 or in any schedule or exhibit or in the certificate delivered by or on behalf of Parent pursuant to Section 9.03(a) and (ii) any breach by Parent of, or any failure of Parent or Merger Co. to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Agreement.
(c) In the event that a Person entitled to indemnification under this Article 10 (the “Indemnified Party”) shall incur or suffer any Losses in respect of which indemnification may be sought under this Article 10 against the Person or, in the case of the Stockholders, Persons required to provide indemnification under this Article 10 (collectively, the “Indemnifying Party”), the Indemnified Party shall assert a claim for indemnification by providing a written notice (the “Notice of Loss”) to the Indemnifying Party stating the nature and basis of such Notice of Loss. The Notice of Loss shall be provided to the Indemnifying Party as defined soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss. Notwithstanding the foregoing, any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss in a timely manner as aforesaid, shall not relieve any Indemnifying Party from any liability that it may have to the Indemnified Party under this Section 10.01 except to the extent that the ability of such Indemnifying Party to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss. If the Notice of Loss relates to a Third Party Claim, the procedures set forth in Section 11.2 and 10.01(d) shall be applicable. If the Notice of Loss does not subject relate to a Third Party Claim, the Indemnifying Party shall have 30 days from the date of receipt of such Notice of Loss to object to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code subject matter and any of the amounts of the Losses set forth in the Notice of Loss, as the case may be, by causing the Indemnifying Party to deliver written notice of objection thereof to the Indemnified Party. If the Indemnifying Party fails to send a notice of objection to the Notice of Loss within such 30-day period, the Indemnifying Party shall be deemed to have agreed to the Notice of Loss and shall be obligated to pay to the Indemnified Party the portion of the amount specified in the Notice of Loss to which the Indemnifying Party has not objected. If the Indemnifying Party sends a timely notice of objection, the Indemnifying Party and the Indemnified Party shall use their commercially reasonable efforts to settle (without an obligation to settle) such claim for indemnification. If the Indemnifying Party and the Indemnified Party do not settle such dispute within 30 days after the Indemnified Party’s receipt of the Indemnifying Party’s notice of objection, the Indemnifying Party and the Indemnified Party shall be entitled to seek enforcement of their respective rights under this Article 10.
(d) Promptly after receipt by an Indemnified Party of notice of the assertion of any claim or the commencement of any action, suit or proceeding by a third Person (a “Third Party Claim”) in respect of which the Indemnified Party shall seek indemnification hereunder, the Indemnified Party shall so notify in writing the Indemnifying Party, but any failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to the Indemnified Party under this Section 10.01 except to the extent that the ability of the Indemnifying Party to defend the Third Party Claim is materially prejudiced by the Indemnified Party’s failure to give such notice. In no event shall the Indemnified Party admit any liability with respect to such Third Party Claim or settle, compromise, pay or discharge such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. With respect to any such claim as to which the Indemnifying Party shall have acknowledged in writing the obligation to indemnify the Indemnified Party hereunder, the Indemnifying Party shall have the right to assume the defense (at the expense of the Indemnifying Party) of any such claim through counsel chosen by the Indemnifying Party by causing the Indemnifying Party to notify the Indemnified Party within 30 days after the receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party; provided, however, that the Indemnified Party shall have the right to employ counsel to represent it at the expense of the Indemnifying Party if the Indemnified Party has been advised by its counsel that there are one or more legal defenses available to it that are different from or additional to those available to any Indemnifying Party or that there is otherwise a potential conflict between the interests of the Indemnified Party and any Indemnifying Party, in which event the reasonable fees and expenses of such separate counsel shall be paid by the Indemnifying Party. The Company and the Stockholders’ Representative each agree to render to the other parties such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such claim, which assistance shall include, to the extent reasonably requested by a party, the retention, and the provision to such party, of records and information reasonably relevant to such Third Party Claim, and making employees of the other party available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. The Indemnifying Party may not settle or otherwise dispose of any Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed unless such settlement includes only the payment of monetary damages (which are fully paid by the Indemnifying Party), does not impose any injunctive or equitable relief upon the Indemnified Party, does not require any admission or acknowledgment of liability or fault of the Indemnified Party and contains an unconditional release of the Indemnified Party in respect of such claim. None of the Indemnified Party or any of its Affiliates may settle or otherwise dispose of any Third Party Claim for which the Indemnifying Party may have a liability under this Agreement without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(e) With respect to any claim as to which the Indemnifying Party shall have acknowledged in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party hereunder, after written notice by the Indemnifying Party to the Indemnified Party of the election by the Indemnifying Party to assume control of the defense of any such Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Party hereunder for any costs or fees subsequently incurred by any such Indemnified Party in connection with the defense thereof, except if the Indemnified Party has the right to employ counsel to represent it at the expense of them arising out the Indemnifying Party as set forth in Section 10.01(d). If the Indemnifying Party does not assume control of or relating the defense of such Third Party Claim within 30 days after the receipt by the Indemnifying Party of the notice required pursuant to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI EntitySection 10.01(d), whether the Indemnified Party shall have the right to defend such Losses arise out claim in such manner as it may deem appropriate at the reasonable cost and expense of or relate to any event or state of facts occurring or existing before, on or after the Closing DateIndemnifying Party.
Appears in 1 contract
Sources: Merger Agreement (Itc Deltacom Inc)
General Indemnification. The Corporation shall indemnifySection 7.2.1 If, defend and hold each Investorafter the Closing Date, Purchaser and/or its affiliates, and each of their respective officers, directors, employees, partners, managing directorsmanagers, affiliatesAffiliates (which, employeesupon and after the Closing, agents, consultants, representatives, successors and assigns shall include the Company) and/or agents (each an "Investor Entity"a “Purchaser Indemnitee” and together the “Purchaser Indemnitees”) harmless from and against all suffer, without any duplication, any Losses (as defined below) incurred a result of, in connection with, or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from of (a) any breach of any of the representations, warranties, covenants representation or agreements warranty made by it Seller or the Company contained in this Agreement Article III or in any agreementArticle IV, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party failure by Seller to perform any of its covenants or agreements contained herein which are to be performed by Seller after the Closing, (c) any claim pursuant to Section 6.6 which directly results from breach of any representation or warranty made by the Company contained in Article III, or (d) any claim made against an Investor Entity relating prior to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any 12-month anniversary of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each InvestorClosing with respect to the matters described on Schedule 7.2.1(d), severally and not jointlythen, shall subject to the other provisions of this Article VII, Seller agrees to indemnify, defend and hold harmless Purchaser Indemnitees against such Losses.
Section 7.2.2 If, after the CorporationClosing Date, Seller and its affiliates, and each of their respective officers, directors, employees, agentspartners, consultantsmanagers, representativesAffiliates and/or agents (each a “Seller Indemnitee” and together the “Seller Indemnitees”) suffer, successors without duplication, any Losses as a result of, in connection with, or arising out of (a) any breach of any representation or warranty made by Purchaser in Article V, (b) any failure by Purchaser to perform any of its covenants or agreements contained herein, and assigns harmless against all Losses arising from (c) any breach by the breach Company of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything contained herein which are to the contrary in this Agreement, no indemnification payment be performed by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of Company after the representations and warranties in Section 2.7Closing, as they relate to Taxesthen, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible")other provisions of this Article VII, and then only Purchaser agrees to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity Seller Indemnitees against any such Losses.
Section 7.2.3 The obligations to reimburse, indemnify and all Losses (as defined hold harmless pursuant to Section 7.2.1 and pursuant to Section 7.2.2 shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 11.2 and not subject 7.1, except for claims for indemnification pursuant to any Deductible or Limit) arising under Title IV such clauses asserted in writing prior to the end of ERISA, such period which claims shall survive until final resolution thereof.
Section 302 of ERISA and Sections 412 and 4971 of 7.2.4 All indemnification payments made pursuant to this Article VII shall be treated as adjustments to the Code which may be incurred Purchase Price for Tax purposes unless otherwise required by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts a change in law occurring or existing before, on or after the Closing Datedate hereof, a closing agreement with an applicable taxing authority or a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
General Indemnification. (a) The Corporation Majority Parties jointly and severally shall indemnify, indemnify and defend and hold each Investorshall compensate and reimburse the Company, its affiliatesBuyer, Parent and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors officers and assigns employees (the “Buyer Indemnitees”) and shall hold each an "Investor Entity") of them harmless from and against all Losses (as defined below) that are incurred or suffered by an Investor Entity any of them in connection with or resulting from:
(whether i) any breach of any representation or warranty made by the Company in this Agreement; or
(ii) any breach of any covenant made by the Company in this Agreement or any Ancillary Agreement which covenant of the Company required performance prior to the Closing.
(b) Each Seller will severally (and not jointly and severally) indemnify and defend and shall compensate and reimburse the Buyer Indemnitees and shall hold each of them harmless from and against all Losses that are incurred or suffered directly by any of them in connection with or indirectly through ownership resulting from:
(i) any breach of Series A Non-Voting Preferred Shares any representation or Conversion Shareswarranty made by such Seller in Article IV; or
(ii) any breach of any covenant or agreement made by such Seller in this Agreement or any Ancillary Agreement, whether such covenant of such Seller requires performance prior to or after the Closing.
(c) Notwithstanding the foregoing, (A) the Majority Parties and, as to Section 10.2(b), the applicable Sellers, shall not have any obligation to indemnify the Buyer Indemnitees from and against Losses resulting from, or arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Company or any Seller until the Buyer Indemnitees have suffered Losses by reason of all such breaches in excess of $100,000 (the “Basket”), after which point the Majority Parties and, as to Section 10.2(b), the applicable Sellers, will be obligated to indemnify the Buyer Indemnitees from and against the aggregate amount of all such Losses regardless of the Basket; and (B) there will be an aggregate ceiling equal to $2,450,000 plus an amount equal to thirty-five percent (35%) of the aggregate amount of any Earn-Out payments received by the Sellers as of the date of determination (the “Cap”), on the aggregate obligation of the Sellers to indemnify the Buyer Indemnitees from and against Losses resulting from, arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Company or any Seller; and (C) the total liability of each Seller with respect to claims under Section 10.2(b)(i) shall not exceed such Seller’s Pro-Rata Share of the Cap; provided, however, that the limitations in this paragraph shall not apply to Losses arising in respect of claims for breach of any representation or warranty relating to Section 3.1 (relating to organization), Section 3.2 (relating to capitalization), Section 3.3 (relating to subsidiaries), Section 3.5 (relating to authority), Section 3.6(b) (relating to immigration matters), Section 3.10 (relating to taxes), Section 3.14 (relating to environmental matters), Section 3.16 (relating to title), Section 3.24 (relating to employee benefits matters), Section 3.25 (relating to brokers), Section 4.1 (relating to ownership of shares), Section 4.2 (relating to authority), Section 4.5 (relating to brokers), or to claims of, or causes of action based upon, fraud.
(d) Without limiting any other remedies available at law or in equity, Buyer shall have the right to set off against any payments under the Earn-Out (other than the Retention Bonus Pool) and any unvested portion of the Equity Consideration. From and after the Closing, any indemnification to which Buyer is entitled under this Agreement as a result of any Losses incurred under Section 10.2(a) or 10.2(b) and for which Buyer exercises its right of set off pursuant to this Section 10.2(d), shall be satisfied first by set off against any payments owed with respect to the Contingent Bonus Pool, then against any payments owed with respect to the Cash Earn-Out Consideration and the Super Cash Earn-Out Consideration and then against any unvested portion of the Equity Consideration; provided, however, to the extent it is later finally determined by a court of competent jurisdiction or by the agreement of the parties that any amount that was so set off, or any portion thereof, was not due and owing to Buyer, Buyer shall pay such amounts to the Sellers’ Agent (for distribution to the Sellers) promptly after such final determination. Any amounts set off pursuant to this Section 10.2(d) shall apply toward the limitation set forth in Section 10.2(c) on the obligation of the Sellers to indemnify the Buyer Indemnitees. For the avoidance of doubt, in no event shall Buyer be obligated to exercise its set off rights prior to seeking indemnification directly from the Sellers.
(e) No limitation or condition of liability provided in this Article X shall apply to any breach of any representation or warranty contained herein if such breach of representation or warranty was made willfully or with intent to deceive.
(f) Buyer and Parent shall jointly and severally indemnify the Sellers and shall hold each of them harmless from and against all Losses that are incurred or suffered in connection with or resulting from from:
(ai) any breach of any of the representations, warranties, covenants representation or agreements warranty made by it in this Agreement Buyer or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained Parent in this Agreement or any other Document and to willful misrepresentation, fraud Ancillary Agreement; or
(ii) any breach of any covenant or deceit, which shall not be subject to the Deductible agreement made by Buyer or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, Parent in the aggregate for all Investors, exceed the Deductible; this Agreement or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor any Ancillary Agreement or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from Company after the Closing Date to Date.
(g) The Sellers and Buyer agree that for purposes of (i) determining whether or not there has been a breach of a representation or warranty by the date Company, a Seller, Buyer or Parent and (ii) calculating the amount of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being such breach, the references to material adverse effect or having been an ERISA Affiliate with any other Person materiality qualifications (other than another WFI Entityor correlative terms), whether including as expressed in accounting concepts such Losses arise out as GAAP, shall be disregarded.
(h) No limitation or condition of or relate liability provided in this Article X shall apply to any event or state the indemnification obligations of facts occurring or existing beforethe Majority Parties set forth in Section 9.2 hereof, on or after except for the Closing Datelimitations set forth in Section 10.1(b).
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the other provisions of this Article 9, from and after the Closing, each of the Buyer and/or its officers, directors, employees, members, partners, managers, Affiliates, representatives and/or agents (each a “Buyer Indemnitee”) shall be entitled to assert claims (whether or not arising out of Third Party Claims (as defined below)) against the Indemnity Escrow Account EAST\134549672.25 69 in respect of damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including penalties, reasonable attorneys’, accountants’ and other professionals’ fees and expenses, court costs and all amounts paid in investigation, defense or settlement of any of the foregoing) (each a “Loss”) incurred or arising as a result of or otherwise related to (i) any breach of representation or warranty made by the Company or Blocker contained in Article 3 or Sellers contained in Article 4 or in any certificate delivered pursuant to Section 2.3(b)(i) (except, in each case, for breach of the representations and warranties set forth in Section 3.15 (Tax Matters)), and (ii) any breach by the Company (prior to the Closing), the Blocker (prior to the Closing) or any of the Sellers of any of the covenants or agreements contained herein which are to be performed by the Company (prior to the Closing), the Blocker (prior to the Closing) or Sellers (except, in each case, for breach of the covenants or agreements set forth in Section 6.13 (Tax Matters)). Subject to the other provisions of this Article 9, claims made pursuant to the terms of Section 9.2(a) shall be made solely against the Indemnity Escrow Account.
(b) Subject to the other provisions of this Article 9, from and after the Closing, each Group Company shall (and Buyer shall cause each Group Company to) indemnify, defend and hold each InvestorSeller, its affiliatesAffiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsmembers, consultantspartners, representativesmanagers, successors representatives and assigns agents (each a “Seller Indemnitee”) harmless against all Losses from any Loss incurred or arising from the as a result of or otherwise related to (i) any breach of representation or warranty made by Buyer contained in Article 5 (or in any certificate delivered pursuant to Section 2.3(b)(iii)), (ii) any breach by Buyer of any of its representations, warranties, covenants or agreements in this Agreement contained herein, and (iii) any breach by Buyer or in the Company of any certificate of its covenants or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything agreements contained herein which are to the contrary in this Agreement, no indemnification payment be performed by the Corporation Company or any other Group Company after the Closing or by Buyer.
(c) The obligations to indemnify and hold harmless pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches 9.2 shall survive the consummation of the representations and warranties Transactions for the applicable period set forth in Section 2.79.1, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject except for claims for indemnification asserted prior to the Deductible or Limit) end of such applicable period (which claims shall be payable (a) survive until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"final resolution thereof), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.
Appears in 1 contract
Sources: Purchase Agreement (Cimpress N.V.)
General Indemnification. (a) The Corporation shall indemnifyVendors and the Vendor Group, defend hereby jointly and severally agree to indemnify and hold each Investor, harmless the Purchaser and its affiliates, Affiliates and each of their respective officers, directors, partners, managing directors, affiliatesofficers, employees, agents, consultants, representatives, successors and assigns assigns, (each an "Investor Entity"collectively, the “Purchaser Indemnified Parties”):
(i) harmless for a period of two (2) years from the Closing Date from and against and in respect of any and all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) resulting from, arising out of, based on or relating to, or resulting from :
(aA) any breach the failure of any representation or warranty of the representationsVendors, warrantiesR▇▇ and G▇▇▇▇, covenants or agreements made by it set forth in this Agreement Agreement, any Transaction Document or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any on behalf of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each InvestorVendors pursuant to this Agreement, severally to be true and not jointly, shall indemnify, defend correct in all respects both as of the date of this Agreement and hold on the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from Closing Date;
(B) the breach of any covenant or other agreement on the part of its representations, warranties, covenants or agreements in the Vendors under this Agreement or any Transaction Document;
(C) any Excluded Liability;
(D) any Release of Hazardous Materials by or held on behalf of (i) the Vendors or (ii) any Person for whose actions the Vendors are responsible in any certificate law in, on, at, or other instrument delivered pursuant heretofrom the Stores which occurred, includingor resulted from operations occurring, without limitation, the Documents. Notwithstanding anything as of or prior to the contrary in this Agreement, no indemnification payment by the Corporation pursuant Closing; any tort liability to this Section 11 with respect to any Losses otherwise payable hereunder third parties as a result of any Releases or from exposure to Hazardous Materials arising from any Releases as of or prior to Closing; notification or designation under any Environmental Law as a breach potentially responsible party for onsite or offsite disposal of its representations Hazardous Materials, which disposal occurred as of or prior to the Closing; or any other Environmental Costs and warranties Liabilities and any other Environmental Claim or Remedial Action resulting from or based upon anything related to the Stores as of or prior to Closing; and
(ii) for an unlimited period from and against and in respect of and Ninety-Two and three quarters (92.75%) Percent of all Losses resulting from, arising out of, or based on or relating to the provision of financial services by the Vendors to their customers prior to the Closing Date, (other than any Losses resulting from breaches from, arising out of or based on or calculated in reference to the receipt by the Purchaser or any Affiliate of the representations Purchaser of any royalty payments as a franchisor in respect of the provisions of such services by the Vendors), including without restricting the generality of and warranties subject to the foregoing, payments of any judgment or settlement by the Purchaser in Section 2.7any class proceedings in respect of payday loan transactions conducted by the Vendors with their customers prior to the Effective Time, as they relate other than payments of any judgment or settlement by the Purchaser resulting from, arising out of or based on or calculated in reference to Taxesthe receipt by the Purchaser or any Affiliate of the Purchaser of any royalty payments in respect of such payday loan transactions.
(iii) For an unlimited period from and against and in respect of all Losses resulting from, Sections 2.26 arising out of, based on or relating to fraud by the Vendors or the Vendor Group.
(b) Purchaser agrees to indemnify and 2.27hold harmless the Vendors and their respective Affiliates, to and their respective directors, officers, employees, agents, successors and assigns (collectively, the “Vendor Indemnified Parties”):
(i) for a period of two (2) years from the Closing Date from and against and in respect of any covenants contained and all Losses resulting from, arising out of, based on or relating to:
(A) the failure of any representation or warranty of the Purchaser set forth in this Agreement or any other Purchaser Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible any certificate or Limit) shall be payable (a) until the time as such Losses shall aggregate (instrument delivered by or on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess behalf of the Purchase Price Purchaser pursuant to this Agreement, to be true and correct in all respects both as of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determinationthis Agreement and on the Closing Date;
(B) the breach of any covenant or other agreement on the part of the Purchaser under this Agreement or any Purchaser Document;
(the "Limit"). The Corporation shall also indemnify, defend C) any Contract Liabilities; and
(ii) for an unlimited period from and hold harmless each Investor Entity against any and in respect of Seven and one quarter (7.25%) Percent of all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them resulting from arising out of of, or based on or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out the provision of or relate payday loans by the Vendors to any event or state of facts occurring or existing before, on or after their customers prior to the Closing DateEffective Time.
Appears in 1 contract
General Indemnification. The Corporation shall indemnify9.1.1 Subject to Sections 9.2 and 9.3, defend the Sellers hereby agree to jointly and severally indemnify and hold the Purchaser, each Investor, its affiliatesCompany and Subsidiary, and each of their respective directors, officers, employees, Affiliates, agents, successors and assigns (collectively, the “Purchaser Indemnified Parties”) harmless from and against:
9.1.1.1 subject to Section 9.4, any and all Losses based upon, attributable to or resulting from the breach or failure of any representation or warranty of the Sellers set forth in Article 4, or any representation or warranty contained in any certificate delivered by or on behalf of the Sellers pursuant to this Agreement (without giving effect to any supplement to the Schedules), to be true and correct (in each case, ignoring for purposes of determining the existence of any such breach or failure or the amount of any Losses with respect thereto, any “materiality,” “Company Material Adverse Effect” or similar qualifiers set forth in such representations and warranties);
9.1.1.2 any and all Losses based upon, attributable to or resulting from the breach of any covenant or other agreement on the part of the Sellers under this Agreement;
9.1.1.3 any Seller Retained Liabilities;
9.1.1.4 any Excluded Liabilities (other than Pre-Closing Environmental Liabilities); and
9.1.1.5 any Pre-Closing Environmental Liabilities.
9.1.2 Subject to Sections 9.2 and 9.4, Purchaser hereby agrees to indemnify and hold the Sellers, and its respective Affiliates, and their respective directors, partners, managing directors, affiliatesofficers, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against from and against:
9.1.2.1 subject to Section 9.4, any and all Losses arising based upon, attributable to or resulting from the breach or failure of any representation or warranty of the Purchaser set forth in Article 5, or any representation or warranty contained in any certificate delivered by or on behalf of the Purchaser pursuant to this Agreement (without giving effect to any supplement to the Schedules), to be true and correct (in each case, ignoring for purposes of determining the existence of any such breach or failure or the amount of any Losses with respect thereto, any “materiality” or similar qualifiers set forth in such representations and warranties); and
9.1.2.2 any and all Losses based upon, attributable to or resulting from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate covenant or other instrument delivered pursuant hereto, including, without limitation, agreement on the Documents. Notwithstanding anything to part of the contrary in Purchaser under this Agreement, no indemnification payment by the Corporation pursuant to .
9.1.3 The provisions of this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations 9.1 and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate 9.5 shall not apply to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased governed by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms provisions of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date9.6.
Appears in 1 contract
General Indemnification. The (a) If, after the Closing Date, Parent, Newco and/or its officers, directors, employees, Affiliates and/or agents (each a “Buyer Indemnitee” and together the “Buyer Indemnitees”) suffer any damages, losses, liabilities, obligations, claims of any kind, interest or expenses (including, without limitation, reasonable attorneys’ fees and expenses) (“Loss”), as a result of, in connection with, or arising out of (i) the failure of any representation or warranty made by the Company contained in Article III of this Agreement to be true and correct (A) as of the date of this Agreement or (B) (x) as of the Closing Date or (y) as of the date when made in the case of any representation or warranty which specifically relates to an earlier date, as applicable, (ii) any breach by the Company of any of its covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date, (iii) any breach by any Principal Shareholder of any of its covenants or agreements contained herein, (iv) the matter described in Schedule 8.2(a)(iv) and/or (v) the matter described in Schedule 8.2(a)(v), then, subject in all cases to the other provisions of this Article VIII, (1) with respect to clauses (i), (ii) and (iii) above, such Buyer Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss from the Escrow Account, and (2) with respect to clauses (iv) and (v) above, such Buyer Indemnitee shall be entitled to be reimbursed for 50% of the amount of such Loss from the Escrow Account.
(b) After the Closing, each of Parent and the Surviving Corporation shall agrees to indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in direct and indirect equityholders of the Company as of the date of this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsAffiliates and/or agents (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from any Loss as a result of, consultantsin connection with, representativesor arising out of (i) the failure of any representation or warranty made by Parent or Newco in this Agreement contained in Article IV of this Agreement to be true and correct (A) as of the date of this Agreement or (B)(x) as of the Closing Date or (y) as of the date when made in the case of any representation or warranty which specifically relates to an earlier date, successors and assigns harmless against all Losses arising from the as applicable, (ii) any breach by Parent or Newco of any of its representations, warranties, covenants or agreements in this Agreement or in contained herein, and/or (iii) any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment breach by the Surviving Corporation pursuant to this Section 11 with respect to (including by way of being the successor of Newco and the Company) of any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate covenants or agreements contained herein which are to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased performed by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Surviving Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.
(c) The obligations to indemnify and hold harmless pursuant to clauses (i), (iv) and (v) of Section 8.2(a) and pursuant to clause (i) of Section 8.2(b) shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 8.1, except for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims shall survive until final resolution thereof.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Russell Corp)
General Indemnification. The Corporation (a) Subject to the other provisions of this ARTICLE 8, SELLERs shall (1) severally, and not jointly and severally, with respect to Section 8.2(a)(i) (but only to the extent such breach or inaccuracy relates to a breach by a SELLER of a representation or warranty of such SELLER in ARTICLE 4 and Section 8.2(a)(ii) and (2) jointly and severally in all other cases, indemnify, defend and hold each Investor, Holdings and its affiliates, and each of their respective officers, directors, partners, managing directors, affiliatesmanagers, employees, Affiliates, agents, consultants, representatives, assigns or successors and assigns (each an "Investor Entity"a “Holdings Indemnitee”) harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out ofany damages, relating tolosses, or resulting from (a) any breach liabilities, obligations, claims of any of the representationskind, warrantiesTaxes, covenants interest or agreements made by it in this Agreement expenses (including reasonable attorneys’ fees and expenses) (each a “Loss”) suffered or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in partpaid, directly or indirectly, with proceeds from the sale as a result of, in connection with, or arising out of any of the Series A Non-Voting Preferred Shares following:
(i) any breach or Common Shares hereunder. Each Investorinaccuracy of any representation or warranty made by any Company or SELLERs contained in this Agreement;
(ii) any breach or noncompliance by SELLERs of any of the covenants or agreements contained herein which are to be performed by SELLERs;
(iii) any SELLER Expenses not paid and discharged in full on or prior to the Closing Date;
(iv) any payments made by a Holdings Indemnitee in respect of any obligation of any Company to indemnify any director, manager, officer, employee or agent of such Company or a SELLER for actions or omissions occurring prior to the Closing, to the extent not reimbursed by the Tail Policy;
(v) any Indemnified Taxes; and
(A) Subject to the other provisions of this ARTICLE 8, Holdings agrees to, and shall cause each Company to, jointly and severally and not jointlywith Holdings, shall indemnify, defend and hold the Corporation, its affiliates, SELLERs and each of their respective Affiliates, heirs, representatives, executors, assigns, successors, officers, directors, employees, agentsand agents (each a “SELLER Indemnitee”) harmless from any Loss suffered or paid, consultantsdirectly or indirectly, representativesas a result of, successors and assigns harmless against all Losses in connection with, or arising from the out of (i) any breach or inaccuracy of any representation or warranty made by Holdings contained in this Agreement, (ii) any breach or noncompliance by Holdings of any of its representations, warranties, covenants or agreements in this Agreement contained herein and (iii) any breach or in noncompliance by any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to Company of any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate covenants or agreements contained herein which are to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as performed by such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or Company after the Closing Date.
(b) The obligations to indemnify and hold harmless pursuant to this Section 8.2 shall survive the consummation of the Transactions for the applicable period set forth in Section 8.1, except for claims for indemnification asserted prior to the end of such applicable period (which claims shall survive until final resolution thereof).
Appears in 1 contract
Sources: Contribution and Sale Agreement (Verus International, Inc.)
General Indemnification. The Corporation shall Subject to Section 9.5, the Stockholder covenants and agrees to indemnify, defend defend, protect and hold each Investorharmless the Buyer Indemnified Parties from, its affiliatesagainst and in respect of all Damages suffered, and each of their respective officerssustained, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered paid by an Investor Entity (whether incurred any Buyer Indemnified Party, in each case in connection with, resulting from or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, directly or resulting from indirectly (whether or not involving a third party claim): (a) any the breach of any of the representations, warranties, covenants representation or agreements warranty made by it any Seller Party set forth in this Agreement or in any agreement, other agreement or any certificate delivered or other instrument delivered pursuant hereto including, without limitation, provided in connection with or related to the Documents, and consummation of the transactions contemplated by this Agreement; (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any covenant or agreement on the part of its representations, warranties, covenants or agreements any Seller Party set forth in this Agreement or in any agreement or certificate executed and delivered by any Seller Party pursuant to this Agreement or in the transactions contemplated hereby; (c) any matter described on Appendix B; (d) any Indebtedness for Borrowed Money or Non-Ordinary Course Liabilities, other instrument delivered pursuant heretothan as shown on the Estimated Closing Statement; (e) the Benefit Plans and any and all benefits accrued under the Benefit Plans as of the Closing Date and any and all other Liabilities arising out of, or in connection with, the form, operation or termination of the Benefit Plans on or prior to the Closing Date; (f) any and all Liabilities for Taxes (excluding Liabilities for Tax Losses) (i) in connection with or arising out of the Company’s activities or business on or before the Closing Date (determined, with respect to taxable periods that begin before and end after the Closing Date, in accordance with the allocation provisions of Section 6.5(b)), (ii) owing by any Person (other than the Company) for which the Company may be liable where the liability of the Company for such Taxes is attributable to an event or transaction occurring on or before the Closing Date, including, without limitation, the Documents. Notwithstanding anything to the contrary (A) in this Agreement, no indemnification payment respect of Taxes payable by the Corporation pursuant to this Section 11 with respect to Stockholder, (B) under Treasury Regulation Sections 1.1502-6 (or any Losses otherwise payable hereunder predecessor or successor thereof or any analogous or similar provision of Law ), (C) as a result of transferee or successor or (D) by Contract, or (iii) resulting from a breach by any Seller Party of its representations any provision of Section 6.5, (g) any Tax Losses, and warranties (other than any Losses resulting from breaches h) enforcing the indemnification rights of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateBuyer Indemnified Parties hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Defense Technology & Systems, Inc.)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representationsThe Shareholder Parties, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, jointly and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointlyseverally, shall indemnify, defend and hold the Corporationharmless Parent and its directors, its affiliates, and each of their respective officers, directorsAffiliates, employees, agentsagents and representatives (collectively, consultantsthe “Parent Indemnified Parties”), representatives, successors from and assigns harmless against all Losses arising that are incurred or suffered by any of them in connection with or resulting from any of the following:
(i) any breach of, or inaccuracy in, any representation or warranty made by any Shareholder Party in this Agreement;
(ii) any breach of any of its representations, warranties, covenants or agreements in this Agreement or in covenant made by any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary Shareholder Party in this Agreement;
(iii) any Closing Indebtedness, no to the extent not included in the adjustments provided for in Section 1.7;
(iv) any Transaction Expense, to the extent not included in the adjustments provided for in Section 1.7;
(v) the determination of the Allocation Portions of the Merger Consideration payable to Shareholder, and the payment of the Merger Consideration in accordance with such Allocable Portions;
(vi) any matter identified on Schedule 3.13; or
(vii) the enforcement by any Parent Indemnified Party of its indemnification payment rights under this Agreement.
(b) Parent shall indemnify, defend and hold harmless the Shareholder Parties and their respective directors, officers, Affiliates, employees, agents and representatives (collectively, the “Shareholder Indemnified Parties”) from and against all Losses that are incurred or suffered by any of them in connection with or resulting from any of the following:
(i) any breach of, or inaccuracy in, any representation or warranty made by Parent in this Agreement;
(ii) any breach of any covenant made by Parent in this Agreement; or
(iii) the enforcement by the Corporation Shareholder Indemnified Parties of their indemnification rights under this Agreement.
(c) Subject to the provisions of Section 7.2(d), (i) the Shareholder Parties shall have no obligation to indemnify Parent Indemnified Parties for any Losses pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its claims for breaches of, or inaccuracies in, representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i) unless and until the total amount of Losses incurred by Parent Indemnified Parties with respect to such breaches of, or inaccuracies in, representations and warranties exceeds $100,000 (the “Threshold”), in which case the Shareholder Parties shall be liable for all such Losses, including Losses below the Threshold; (ii) Parent shall have no obligation to indemnify Shareholder Indemnified Parties for any Losses resulting from pursuant to claims for breaches of, or inaccuracies in, representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i) unless and until the total amount of Losses incurred by Shareholder Indemnified Parties with respect to such breaches of, or inaccuracies in, representations and warranties exceeds the Threshold, in which case Parent shall be liable for all such Losses, including Losses below the Threshold. Subject to the provisions of Section 7.2(d), the maximum aggregate obligation of (i) the Shareholder Parties for Losses pursuant to claims for breaches of, or inaccuracies in, representations and warranties (other than Fundamental Representations) under Section 7.2(a)(i), and (ii) Parent for Losses pursuant to claims for breaches of, or inaccuracies in, representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed $1,250,000 (the “Cap”).
(d) In no event shall the Threshold or the Cap, or the limitations set forth in Section 7.2(c), apply to Losses suffered or incurred by any Indemnified Party as a result of, or arising out of, (i) the matters set forth in Sections 7.2(a)(ii) through 7.2(a)(vii), Sections 7.2(b)(ii) or 7.2(b)(iii), or Section 6.1; (ii) a breach of, or inaccuracy in, any Fundamental Representation; or (iii) any fraud or intentional misrepresentation by a Party
(e) The representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which the Ancillary Agreements shall not be subject to the Deductible affected or Limit) diminished by, and no right of indemnification hereunder shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; limited by reason of any investigation or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on audit conducted before or after the Closing Dateor the knowledge of any Party of any breach of a representation, warranty, covenant or agreement by the other Party at any time, or the decision of any Party to complete the Closing.
Appears in 1 contract
Sources: Merger Agreement (Transcat Inc)
General Indemnification. The Corporation shall (a) Subject to Sections 9.02 and 9.03, from and after the Closing Date, the Greystone Principals and Greystone Partners, jointly and severally, hereby agree to indemnify, defend and hold each Investor, its affiliates, harmless Buyer and all of Buyer’s Affiliates and each of their respective directors, officers, directorsemployees and agents (each, partnersa “Buyer Indemnified Party” and, managing directorscollectively, affiliatesthe “Buyer Indemnified Parties”), employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against any and all Losses (as defined below) incurred or suffered by the Buyer Indemnified Parties arising out of, based upon or resulting from any of the following:
(i) any breach by any Greystone Principal, Greystone Partners or GDC LLC of any representation or warranty contained in or referred to in Article 3 or in any schedule or exhibit or in the certificate delivered by or on behalf of any Greystone Principal, Greystone Partners or GDC LLC pursuant to Section 7.01(a), in each case, without regard for any exception for materiality, material adverse effect or Material Adverse Effect contained therein;
(ii) any breach by any Greystone Principal, Greystone Partners or GDC LLC of, or any failure of any Greystone Principal, any Greystone Partners or GDC LLC to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Agreement;
(iii) any Pre-Closing Claim;
(iv) any Sellers’ Transaction Expenses;
(A) all Taxes (or the non-payment thereof) of the Acquired Companies for all Pre-Closing Tax Periods and Pre-Closing Partial Tax Periods, (B) all Taxes of any member of an Investor Entity affiliated, consolidated, combined or unitary group of which the Acquired Companies (whether incurred or suffered directly any predecessor of the Acquired Companies) is or indirectly through ownership was a member on or prior to the Closing Date (including pursuant to Treasury Regulation § 1.1502-6 or any analogous or similar state, local, or foreign law or regulation), and (C) any and all Taxes of Series A Nonany Person (other than the Acquired Companies) imposed on the Acquired Companies as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing;
(vi) any failure by the Excluded Entities, the Acquired Companies or their respective Affiliates to comply with applicable securities Laws (including federal and state securities registration and broker-Voting Preferred Shares or Conversion Shares) dealer Laws, “blue sky” Laws, the Investment Advisers Act and the Investment Company Act), in connection with, arising out of, relating to, to or resulting from any capital or other fund raising activities on or prior to the Closing Date, including in connection with any “seed capital” transactions;
(avii) the conduct of the business of the Excluded Entities prior to, at or after the Closing;
(viii) the formation and conduct of the business of Greystone Marketing Services, including any Liability arising as a result of the participation, or lack of participation of employees or former employees of Greystone Marketing Services in any Greystone Plan;
(ix) the establishment, operation or termination of Greystone Employee Participation Partnership and the Greystone Management Retention Plans;
(x) any breach facts, circumstances or conditions, existing, initiated or occurring prior to the Closing Date which have resulted or may result in any Liabilities under any Environmental Law; and
(xi) relating to the preparation and submission of any of claims and cost reports and any other activity prior to Closing in connection with the representationsBusiness which is the basis for any suspension, warrantiesdisbarment, covenants or agreements made exclusion under any Government Program, or is prohibited by it in this Agreement 42 U.S.C. Section 1320a-7a, 42 U.S.C. Section 1320a-7b, 18 U.S.C. Section 1347, 18 U.S.C. Section 1035, or in 31 U.S.C. Section 3729-3733, or any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and similar state laws.
(b) any third party claim made against an Investor Entity relating Subject to any transaction by Sections 9.02 and 9.03, from and after the Corporation financed in whole or in partClosing Date, directly or indirectlythe Minority Interest Sellers, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investorjointly and severally, severally and not jointly, shall hereby agree to indemnify, defend and hold harmless the CorporationBuyer Indemnified Parties, its affiliates, from and each of their respective officers, directors, employees, agents, consultants, representatives, successors against any and assigns harmless against all Losses incurred or suffered by the Buyer Indemnified Parties arising out of, based upon or resulting from any of the following:
(i) any breach by the Minority Interest Sellers of any of its representations, warranties, covenants representation or agreements warranty contained in this Agreement or referred to in Article 3 or in any schedule or exhibit or in the certificate delivered by or other instrument delivered on behalf of any Minority Interest Seller pursuant heretoto Section 7.01(a), includingin each case, without limitationregard for any exception for materiality, material adverse effect or Material Adverse Effect contained therein;
(ii) any breach by any Minority Interest Seller of, or any failure of any Minority Interest Seller to perform, any of the Documents. Notwithstanding anything to the contrary covenants, agreements or obligations contained in this Agreement, no indemnification payment by the Corporation or made pursuant to this Section 11 with respect Agreement; and
(iii) any Sellers’ Transaction Expenses.
(c) Subject to any Losses otherwise payable hereunder as a result of a breach of its representations Sections 9.02 and warranties (other than any Losses resulting 9.03, from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from after the Closing Date Date, Buyer hereby agrees to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity Seller and their respective Affiliates, and each of their respective directors, officers, employees and agents (each, a “Seller Indemnified Party” and, collectively, the “Seller Indemnified Parties”), from and against any and all Losses incurred or suffered by Seller Indemnified Parties arising out of, based upon or resulting from any of the following:
(as defined i) any breach by Buyer of any representation or warranty contained in or referred to in Article 4 or in any schedule or exhibit or in the certificate delivered by or on behalf of Buyer pursuant to Section 11.2 and 7.02(a), in each case, without regard for any exception for materiality or material adverse effect contained therein;
(ii) any breach by Buyer of, or any failure of Buyer to perform, any of the covenants, agreements or obligations contained in or made pursuant to this Agreement; and
(iii) any Third Party Claims made against any of the Greystone Principals or Greystone Partners after the Closing Date to the extent such Third Party Claims are related to the conduct of the Business after Closing; provided, that the foregoing shall not subject apply to any Deductible Loss (A) caused by or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 out of the Code willful misconduct or gross negligence of any of the Greystone Principals or Greystone Partners, (B) with respect to which may be incurred the Greystone Principals or Greystone Partners have an obligation to indemnify the Buyer Indemnified Parties pursuant to Section 9.01(a), (C) with respect to which the Minority Interest Sellers have an obligation to indemnify the Buyer Indemnified Parties pursuant to Section 9.01(b), (D) the existence of which constitutes a breach of a representation, warranty, covenant or agreement of any of the Greystone Principals, Sellers, or GDC LLC hereunder, or (E) caused by or arising out of the execution, delivery and performance by any of them arising out the Greystone Principals, Sellers or GDC LLC of this Agreement or relating the Transaction Documents or the consummation by any of the Greystone Principals, Seller or GDC LLC of the Contemplated Transactions.
(d) In the event that a Person entitled to indemnification under this Article 9 (the “Indemnified Party”) will incur or suffer any Losses in respect of which indemnification may be sought under this Article 9 against the Person or required to provide indemnification under this Article 9 (collectively, the “Indemnifying Party”), the Indemnified Party will assert a claim for indemnification by providing a written notice (the “Notice of Loss”) to the Indemnifying Party stating the nature and, in reasonable detail, the basis of such Notice of Loss. The Notice of Loss will be provided to the Indemnifying Party as soon as practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss. Notwithstanding the foregoing but subject to Section 9.02, any failure to provide the Indemnifying Party with a Notice of Loss, or any failure to provide a Notice of Loss in a timely manner as aforesaid, will not relieve any Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 9.01 except to the extent that the ability of such Indemnifying Party to defend such claim is materially prejudiced by the Indemnified Party’s failure to give such Notice of Loss. If the Notice of Loss relates to a Third Party Claim, the procedures set forth in Section 9.01(e) will be applicable. If the Notice of Loss does not relate to a Third Party Claim, the Indemnifying Party will have thirty (30) days from the date of receipt of such Notice of Loss to object to any WFI Entity being of the subject matter and any of the amounts of the Losses set forth in the Notice of Loss, as the case may be, by causing the Indemnifying Party to deliver written notice of objection thereof to the Indemnified Party. If the Indemnifying Party fails to send a notice of objection to the Notice of Loss within such thirty (30) day period, the Indemnifying Party will be deemed to have agreed to the Notice of Loss and will be obligated to pay to the Indemnified Party the portion of the amount specified in the Notice of Loss to which the Indemnifying Party has not objected. If the Indemnifying Party sends a timely notice of objection, the Indemnifying Party and the Indemnified Party will use their Commercially Reasonable Efforts to settle (without an obligation to settle) such claim for indemnification. If the Indemnifying Party and the Indemnified Party do not settle such dispute within thirty (30) days after the Indemnified Party’s receipt of the Indemnifying Party’s notice of objection, the Indemnifying Party and the Indemnified Party will be entitled to seek enforcement of their respective rights under this Article 9.
(e) Promptly after receipt by an Indemnified Party of notice of the assertion of any claim or having been an ERISA Affiliate with the commencement of any other action, suit or proceeding by a third Person (a “Third Party Claim”) in respect of which the Indemnified Party will seek indemnification hereunder, the Indemnified Party will so notify in writing the Indemnifying Party, but subject to Section 9.02 any failure so to notify the Indemnifying Party will not relieve the Indemnifying Party from any Liability that it may have to the Indemnified Party under this Section 9.01 except to the extent that the ability of the Indemnifying Party to defend the Third Party Claim is materially prejudiced by the Indemnified Party’s failure to give such notice. In no event will the Indemnified Party admit any Liability with respect to such Third Party Claim or settle, compromise, pay or discharge such Third Party Claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. With respect to any such claim as to which the Indemnifying Party has acknowledged in writing the obligation to indemnify the Indemnified Party hereunder, the Indemnifying Party will have the right to assume the defense (at the expense of the Indemnifying Party) of any such claim through counsel chosen by the Indemnifying Party by causing the Indemnifying Party to notify the Indemnified Party within thirty (30) days after the receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, that any such counsel will be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party; provided, that the Indemnified Party will have the right to employ counsel to represent it at the expense of the Indemnifying Party if the Indemnified Party has been advised by its counsel that there are one or more legal defenses available to it that are different from or additional to those available to any Indemnifying Party or that there is otherwise a potential conflict between the interests of the Indemnified Party and any Indemnifying Party, in which event the reasonable fees and expenses of such separate counsel will be paid by the Indemnifying Party. The Indemnifying Party and the Indemnified Party each agree to render to the other than another WFI Entityparties such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such claim, which assistance will include, to the extent reasonably requested by a party, the retention, and the provision to such party, of records and information reasonably relevant to such Third Party Claim, and making employees of the other party available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. The Indemnifying Party may not settle or otherwise dispose of any Third Party Claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed unless such settlement includes only the payment of monetary damages (which are fully paid by the Indemnifying Party), whether does not impose any injunctive or equitable relief upon the Indemnified Party, does not require any admission or acknowledgment of liability or fault of the Indemnified Party and contains an unconditional release of the Indemnified Party in respect of such Losses arise out claim. None of the Indemnified Party or relate any of its Affiliates may settle or otherwise dispose of any Third Party Claim for which the Indemnifying Party may have a Liability under this Agreement without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.
(f) With respect to any event claim as to which the Indemnifying Party will have acknowledged in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party hereunder, after written notice by the Indemnifying Party to the Indemnified Party of the election by the Indemnifying Party to assume control of the defense of any such Third Party Claim, the Indemnifying Party will not be liable to such Indemnified Party hereunder for any costs or state fees subsequently incurred by such Indemnified Party in connection with the defense thereof, except if the Indemnified Party has the right to employ counsel to represent it at the expense of facts occurring or existing before, on or the Indemnifying Party as set forth in Section 9.01(e). If the Indemnifying Party does not assume control of the defense of such Third Party Claim within thirty (30) days after the Closing Datereceipt by the Indemnifying Party of the notice required pursuant to Section 9.01(e), the Indemnified Party will have the right to defend such claim in such manner as it may deem appropriate at the reasonable cost and expense of the Indemnifying Party.
Appears in 1 contract
Sources: Securities Purchase Agreement (Sunrise Senior Living Inc)
General Indemnification. The Corporation (a) Subject to the limitations in Section 7.2(c) and Section 7.6, the Seller and Founder shall, jointly and severally, indemnify, defend and hold harmless Buyer and its directors, officers, Affiliates, employees, agents and representatives, 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 misrepresentation or breach of, or inaccuracy in, any representation or warranty made by Seller or Founder in this Agreement or any Ancillary Agreement;
(ii) any breach of any covenant made by Seller or Founder in this Agreement or any Ancillary Agreement;
(iii) any Retained Liability;
(iv) any Transaction Expense; or
(v) any matters identified on Schedule 7.2(a)(v).
(b) Subject to the limitations in Section 7.2(c), Buyer shall indemnify, defend and hold each Investor, its affiliates, harmless the Seller and each of their respective Seller’s officers, directors, partners, managing directors, affiliatesAffiliates, employees, agents, consultants, representativesagents and representatives and Founder and Founder’s heirs, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) that are incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership any of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, them in connection with or resulting from each of the following:
(ai) any misrepresentation or breach of, or inaccuracy in, any representation or warranty made by Buyer in this Agreement or any Ancillary Agreement;
(ii) any breach of any of the representations, warranties, covenants or agreements covenant made by it Buyer in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and Ancillary Agreement; or
(biii) any third party claim made Assumed Liability; provided that there shall be no indemnification under this Section 7.2(b) for any Losses against an Investor Entity relating which Buyer is entitled to any transaction by indemnification pursuant to Section 7.2(a).
(c) Notwithstanding the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally foregoing and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything subject to the contrary in proviso at the end of this Agreementparagraph and the terms of this Article VII, no (i) Seller shall not be obligated to provide any indemnification payment by the Corporation for Losses pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result claims (other than Third Party Claims) for breaches of a breach of its representations and warranties (other than any Fundamental Representations) under Section 7.2(a)(i) unless the aggregate amount of Losses resulting from incurred by Buyer with respect to such breaches of the representations and warranties exceeds $100,000 (the “Basket”), in Section 2.7which case Seller will be liable for all Losses in excess of the Basket, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which (ii) Buyer shall not be subject obligated to the Deductible or Limit) shall be payable provide any such indemnification for Losses pursuant to claims (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basisother than Third Party Claims) for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), unless the aggregate amount of Losses incurred by Seller with respect to such breaches of representations and warranties exceeds the Basket, in which case Buyer will be liable for all Investor Entities more Losses in excess of the Basket. Subject to Section 7.8, the maximum aggregate obligation of (i) Seller and Founder for Losses pursuant to claims for breaches of representations and warranties (other than US$5,000,000 (the "Deductible"Fundamental Representations) under Section 7.2(a)(i), and then only (ii) Buyer for Losses pursuant to claims for breaches of representations and warranties (other than Fundamental Representations) under Section 7.2(b)(i), shall not exceed $1,500,000 (the extent that such Losses“Cap”). Neither the Basket nor the Cap shall apply to Losses arising in respect of claims for misrepresentations and breach of the Fundamental Representations.
(d) In no event shall the limitations set forth in Section 7.2(c) apply to Losses suffered or incurred by any Indemnified Party as a result of or arising out of, (A) the matters set forth in the aggregate for all InvestorsSections 7.2(a)(ii) through 7.2(a)(v), exceed the Deductible; or 7.2(b)(ii) or 7.2(b)(iii), or (bB) any fraud or intentional misrepresentation by a party. Notwithstanding the foregoing, the covenants of Seller and Founder set forth in Section 5.5(a) are expressly excluded from the de-limitation as to Section 7.2(a)(ii). For the avoidance of doubt, the parties acknowledge and agree that the limitations set forth in Section 7.2(c) shall apply with respect to the Investor Entities associated covenants set forth in Section 5.5(a).
(e) For purposes of calculating the amount of any Losses incurred in connection with each Investorany such misrepresentation or breach of warranty, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses references to material or Material Adverse Effect (as defined in Section 11.2 and not subject to any Deductible or Limitother correlative terms) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may shall be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Datedisregarded.
Appears in 1 contract
General Indemnification. (a) The Corporation shall indemnify, defend and hold each Investor, its affiliates, Company and each of their respective officers, Partner shall indemnify and defend Buyer and its directors, partners, managing directorsofficers, affiliates, employees, agents, consultants, agents and representatives, successors and assigns (shall hold each an "Investor Entity") of them harmless from and against all Losses (as defined below) that are incurred or suffered by an Investor Entity any of them in connection with or resulting from:
(whether incurred i) any misrepresentation or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out breach of, relating toor inaccuracy in, any representation or resulting from warranty made by any Partner or the Company in this Agreement, any Ancillary Agreement or any schedule or Disclosure Schedule furnished or to be furnished to Buyer in connection with or as contemplated by this Agreement;
(aii) any breach of any of the representations, warranties, covenants or agreements covenant made by it in this Agreement the Company or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary Partner in this Agreement, any Ancillary Agreement or any schedule or Disclosure Schedule furnished or to be furnished to Buyer in connection with or as contemplated by this Agreement;
(iii) any Excluded Liability; and
(iv) the enforcement by Buyer of its indemnification rights under this Agreement.
(b) Parent and Buyer shall jointly and severally indemnify each Partner, the Company and its officers, affiliates, employees, agents and representatives, and shall hold each of them harmless from and against all Losses that are incurred or suffered by any of them in connection with or resulting from:
(i) any misrepresentation or breach of any representation or warranty made by Buyer in this Agreement, any Ancillary Agreement or any schedule furnished or to be furnished to the Company or any Partner in connection with or as contemplated by this Agreement;
(ii) any breach of any covenant made by Buyer in this Agreement, any Ancillary Agreement or any schedule furnished or to be furnished to the Company or any Partner in connection with or as contemplated by this Agreement;
(iii) the Assumed Liabilities; provided that there shall be no indemnification payment under this Section 10.2(b) for any Losses against which Buyer is entitled to indemnification pursuant to Section 10.2(a); and
(iv) the enforcement by the Corporation Company and the Partners of their indemnification rights under this Agreement.
(c) Notwithstanding the foregoing, (i) the Partners and the Company shall not be obligated to provide any such indemnification for Losses pursuant to this Section 11 with respect to any Losses otherwise payable hereunder claims (other than Third Party Claims, as a result hereinafter defined) for breaches of a breach of its representations and warranties under Section 10.2(a)(i) hereof unless the aggregate amount of Losses incurred by Buyer exceeds Four Hundred Thousand Dollars ($400,000) (the “Threshold”), in which case the Partners and the Company will be liable for the full amount of such Losses without regard to the Threshold and (ii) Buyer shall not be obligated to provide any such indemnification for Losses pursuant to claims (other than any Losses resulting from Third Party Claims) for breaches of the representations and warranties under Section 10.2(b)(i) hereof, unless the aggregate amount of Losses incurred by the Partners and the Company exceeds the Threshold, in which case Buyer will be liable for the full amount of such Losses without regard to the Threshold. The maximum aggregate obligation of (i) the Partners and the Company hereunder for Losses pursuant to claims for breaches of representations and warranties under Section 2.710.2(a)(i) hereof and (ii) Buyer hereunder for Losses pursuant to claims for breaches of representations and warranties under Section 10.2(b)(i) hereof, as they relate shall not exceed Twelve Million Dollars ($12,000,000) (the “Maximum”); provided, however, that the limitations in this paragraph shall not apply to TaxesLosses arising in respect of claims for misrepresentations and breach of warranties relating to Sections 3.1 and 4.1 hereof (Organization), Sections 2.26 3.2 and 2.274.2 hereof (Authority), Section 3.5 (Subsidiaries), or Section 3.8(a) (Title), all of which may be asserted without limitation. Each Partner’s indemnification obligation under this Section 10.2 shall be limited to any covenants contained one-third (1/3) of the applicable Loss. No limitation or condition of liability provided in this Agreement Article X shall apply to fraud or intentional misrepresentation. For purposes of determining the existence of any other Document and to willful misrepresentation, fraud breach of warranty, or deceitnonfulfillment of any covenant or agreement, which shall not be subject and calculating the amount of any Losses incurred in connection with any such misrepresentation, breach of warranty, or nonfulfillment of any covenant or agreement, any and all references to the Deductible material or LimitMaterial Adverse Effect (or other correlative terms) shall be payable disregarded.
(d) (i) A party entitled to indemnification hereunder shall herein be referred to as an “Indemnitee.” A party obligated to indemnify an Indemnitee hereunder shall herein be referred to as an “Indemnitor.” As soon as is reasonable after an Indemnitee either (a) until receives notice of any claim or the time as commencement of any action by any third party which such Losses shall aggregate Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder (on a cumulative basis and not on a per item basis“Third Party Claim”) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) sustains any Loss not involving a Third Party Claim or action which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim in respect thereof is to be made against an Indemnitor under this Article X, notify such Indemnitor in writing of such claim, action or Loss, as the case may be; provided, however, that failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the extent Indemnitor is actually prejudiced in its defense of the action by such failure. Any such notification must be in writing and must state in reasonable detail the nature and basis of the claim, action or Loss, to the extent known. Except as provided in this Section 10.2, Indemnitor shall have the right using counsel acceptable to the Indemnitee, to contest, defend, litigate or settle any such Third Party Claim which involves (and continues to involve) solely monetary damages; provided that the Indemnitor shall have notified the Indemnitee in writing of its intention to do so within fifteen (15) days of the Indemnitee having given notice of the Third Party Claim to the Indemnitor and; provided, further, that (1) the Indemnitor expressly agrees in such notice to the Indemnitee that, as between the Indemnitor and the Indemnitee, the Indemnitor shall be solely obligated to fully satisfy and discharge the Third Party Claim notwithstanding any limitation with respect to indemnification included in this Agreement; (2) the Investor Entities associated with each InvestorThird Party Claim is not, in an aggregate amount in excess the reasonable judgment of the Purchase Price Indemnitee, likely to result in Losses that will exceed the Maximum; (3) if reasonably requested to do so by the Indemnitee, the Indemnitor shall have made reasonably adequate provision to ensure the Indemnitee of the shares issued financial ability of the Indemnitor to satisfy the full amount of any adverse monetary judgment that may result from such Investor or its predecessors in interest as shown on Schedule 1.1 hereto third party claim; (as increased 4) assumption by the amounts by which Indemnitor of such Third Party Claim could not reasonably be expected to cause a material adverse effect on the Series A Non-Voting Liquidation Value, as defined in Indemnitee’s business and (5) the Terms of Indemnitor shall diligently contest the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) Third Party Claim (the "Limit"conditions set forth in clauses (1), (2), (3), (4) and (5) being collectively referred to as the “Litigation Conditions”). The Corporation Indemnitee shall also indemnifyhave the right to participate in, defend and hold harmless each Investor Entity against to be represented by counsel (at its own expense) in any such contest, defense, litigation or settlement conducted by the Indemnitor; provided, that the Indemnitee shall be entitled to reimbursement therefor if the Indemnitor shall lose its right to contest, defend, litigate and all Losses (as defined in Section 11.2 settle the Third Party Claim. The Indemnitor shall not be entitled, or shall lose its right, to contest, defend, litigate and not subject settle the Third Party Claim if the Indemnitee shall give written notice to the Indemnitor of any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of objection thereto based upon the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateLitigation Conditions.
Appears in 1 contract
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach As an inducement to Buyer and Merger Sub to enter into this Agreement, and acknowledging that Buyer and Merger Sub are relying on the indemnification provided in this Section 11.2 in executing and performing this Agreement, the Equity Holders, by their acceptance of any Merger Consideration pursuant to this Agreement, shall be deemed to have authorized the Representative to act on behalf of the representations, warranties, covenants or agreements made by it Equity Holders in connection with all matters relating to this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitationAgreement, the Documents, Escrow Agreement and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant heretoEnvironmental Escrow Agreement, including, without limitation, the Documents. Notwithstanding anything Indemnity Escrow Account, the Purchase Price Adjustment Escrow Account, and the Environmental Escrow Account.
(b) Subject to Sections 11.3 and 11.4 below, after the Closing each of Buyer, the Surviving Corporation and its Subsidiaries and their respective officers, directors, employees and successors and assigns (collectively, the "Buyer Indemnified Parties") shall be indemnified and held harmless (in any event, without duplication) solely out of the Indemnity Escrow Account from and against:
(i) subject to Section 11.1, any and all Losses resulting from, arising from, relating to or constituting the failure of any representation or warranty of the Company set forth in Article IV (other than those representations and warranties relating to Taxes), to be true and correct as of the date made; and
(ii) any and all Losses resulting from, arising from, relating to or constituting the breach of any covenant or other agreement (other than those covenants or other agreements relating to Taxes) on the part of the Company under this Agreement.
(c) Subject to Sections 11.3 and 11.4 below, after the Closing each of the Buyer Indemnified Parties shall be indemnified and held harmless (in any event, without duplication) solely out of the Indemnity Escrow Account from and against any and all Losses arising out of or attributable to (i) any misrepresentation, inaccuracy or breach of any representation, warranty, covenant, agreement or promise related to Taxes by the Company contained in this Agreement or (ii) any Liability of the Company or any of its Tax Affiliates with respect to Taxes for any Tax Period, or portion thereof, ending on or before the Closing Date, including, without limitation any Interim Period; provided, that the Losses shall be reduced (but not below zero) to the contrary extent reserved in the Closing Balance Sheet; and provided, further, that a valuation allowance or reserve with respect to net operating losses, Tax basis of assets and other similar Tax attributes shall not be considered a reserve on the Closing Balance Sheet for this purpose.
(d) Notwithstanding any provision in this Agreement, no indemnification payment by Agreement to the Corporation pursuant to this contrary:
(i) the Buyer Indemnified Parties shall not be indemnified under Section 11 11.2(c) with respect to any Losses otherwise payable hereunder as a result or Taxes for any Taxable Period that begins after the Closing Date, including without limitation, the portion of a breach of its representations and warranties any Straddle Period that begins after the Closing Date; and
(other than any Losses resulting from breaches of ii) the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which Buyer Indemnified Parties shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (bindemnified under Section 11.2(c) with respect to any Losses or Taxes that would not have been generated but for any election made by the Investor Entities associated with each Investor, in an aggregate amount in excess Buyer under Section 338(g) of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date Code with respect to the date of determinationCompany and one or more Tax Affiliates.
(e) Subject to Sections 11.3 and 11.4 below, Buyer and the Surviving Corporation hereby, jointly and severally, agree to indemnify and hold the Equity Holders and the Representative and their respective officers, directors, employees and successors and assigns (collectively, the "LimitEquity Holders Indemnified Parties"). The Corporation shall also indemnify) harmless from and against:
(i) subject to Section 11.1, defend and hold harmless each Investor Entity against any and all Losses (resulting from, arising from, relating to or constituting the failure of any representation or warranty of Buyer or Merger Sub set forth in Article V to be true and correct as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred date made; and
(ii) any and all Losses resulting from, arising from, relating to or constituting the breach of any covenant or other agreement on the part of Buyer or Merger Sub under this Agreement.
(f) Notice of all claims made by any Buyer Indemnified Party pursuant to this Article XI shall be given exclusively to the Representative, not in its personal capacity, but solely in its capacity as the representative of them arising out the Equity Holders, and the Representative shall have full and exclusive power and authority to represent the interests of the Equity Holders in respect of such claims. Notwithstanding anything contained herein to the contrary, no Buyer Indemnified Party shall be entitled to make any claim for indemnification under this Article XI against the Representative or relating any Equity Holder.
(g) To the extent that Buyer, the Surviving Corporation or any Subsidiary suffers any Losses for which it is entitled to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entitybe indemnified under Section 11.2(a), whether then (without limiting any of the rights of the Surviving Corporation or such Subsidiary as a Buyer Indemnified Party, but in any event without duplication) Buyer shall be entitled to make an indemnification claim for such Losses arise out on behalf of the Surviving Corporation or relate to any event or state of facts occurring or existing before, on or after the Closing Datesuch Subsidiary.
Appears in 1 contract
General Indemnification. (a) The Corporation provisions of this Section 9.1 shall indemnifynot apply to any Losses based upon, defend attributable to or resulting from the failure of any representation or warranty contained in Section 4.11 to be true and correct or for the indemnification for Taxes provided in Section 9.5(a), which in each case shall instead be governed exclusively by the provisions of Section 9.5.
(b) Subject to the provisions of this Article IX, from and after the Closing Date, Sellers shall jointly and severally (to the extent permitted under applicable Law) indemnify and hold each InvestorPurchaser and its Affiliates, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against any and all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out ofbased upon, relating to, attributable to or resulting from from:
(ai) any breach the failure of any representation or warranty of the representations, warranties, covenants Sellers set forth in Article IV hereof or agreements made by it in this Agreement any representation or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants warranty contained in this Agreement or any certificate delivered by or on behalf of Sellers pursuant to this Agreement to be true and correct as of the Closing Date;
(ii) the breach of any covenant or other Document and agreement on the part of Sellers under this Agreement;
(iii) the Reorganization;
(iv) the matter described under the caption “Pactiv/Hexacomb Spain” on Schedule 4.18, provided that Sellers shall retain all rights to willful misrepresentationany insurance proceeds, fraud rights of contribution, or deceit, which shall not be subject other rights related to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible")matter, and then only Purchaser shall cooperate, and cause the Companies to cooperate, with Sellers in connection with the extent that defense of such Lossesmatter or the recovery of any amounts related thereto from third parties, in the aggregate including insurance carriers; and
(v) any royalties or interest due to Sealed Air Corporation for all Investors, exceed the Deductible; or (b) periods prior to Closing with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest agreements listed as shown items 60 and 61 on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value4.15(a), as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date except to the date of determinationextent accrued on the Final Working Capital Statements.
(c) (the "Limit"). The Corporation Subject to Section 9.4 hereof, Purchaser shall also indemnify, defend indemnify and hold Sellers and their Affiliates harmless each Investor Entity from and against any and all Losses based upon, attributable to or resulting from:
(i) the failure of any representations and warranty of Purchaser set forth in Article V hereof or any representation and warranty contained in any certificate delivered by or on behalf of Purchaser pursuant to this Agreement to be true and correct as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by Closing Date;
(ii) the breach of any covenant or other agreement on the part of them Purchaser under this Agreement; and
(iii) any and all Losses arising out of of, based upon or relating to Purchaser’s operation of the Businesses or Purchaser’s ownership of the Shares from and after the Effective Time.
(d) In determining indemnification obligations under this Article IX, Sellers and Purchaser hereby agree that
(i) For purposes of determining whether there has been a failure of any WFI Entity being representation or having been an ERISA Affiliate with any other Person warranty to be true and correct and the amount of Losses sustained or incurred by Purchaser, for purposes of Section 9.1(b)(i) and Section 9.1(c)(i), such representations and warranties shall be interpreted without giving effect to the words “material,” “materially,” “Company Material Adverse Effect” or similar qualifications (other than another WFI Entityin Section 4.9, where such terms shall be given full effect), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.;
Appears in 1 contract
General Indemnification. The Corporation shall indemnifyEach Shareholder, defend jointly and hold severally, each Investorholder of Assumed Options, its affiliatesjointly and severally (through the Aggregate Option Holdback Amount), and each recipient of their respective officersManagement Bonus Plan Payments, directorsjointly and severally (through the Aggregate Bonus Holdback Amount), partnerscovenants and agrees to indemnify, managing directorsdefend, affiliatesprotect and hold harmless the Indemnified Parties from, employeesagainst and in respect of all Damages suffered, agentssustained, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered paid by an Investor Entity (whether incurred any Indemnified Party, in each case in connection with, resulting from or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, directly or resulting from indirectly: (ai) any breach the Breach of any representation or warranty made by the Company or any Key Shareholder set forth in this Agreement, in any Company Proposed Supplement that complies with Section 6.17(b) hereof or, subject to the last sentence of Section 6.17(b), in any other agreement or certificate required to be executed and delivered contemporaneously herewith or at the Closing (but excluding the Employment Agreements and the Key Employee Agreements); provided that, the liability of any Key Shareholder in excess of the representations, warranties, covenants Escrow Deposit for any Breach of any representation or agreements made by it warranty set forth in Article IV hereof or in the Voting Agreement or the Letter of Transmittal shall be several and not joint (and the corresponding liability of such Key Shareholder for any indemnification under Section 9.1(ii) for any Breach of such representation or warranty set forth in Article IV hereof or in the Voting Agreement or the Letter of Transmittal shall also be several and not joint to the extent that such liability exceeds the Escrow Deposit); (ii) the Breach of any covenant or agreement on the part of the Company or any Key Shareholder set forth in this Agreement or in any agreement, agreement or certificate or other instrument required to be executed and delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole Company or in part, directly any Key Shareholder contemporaneously herewith or indirectly, with proceeds from at the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in Closing pursuant to this Agreement or in the transactions contemplated hereby (but excluding the Employment Agreements and the Key Employee Agreements); (iii) the amounts of any certificate Indebtedness (other than Bridge Notes as to which the Company has timely received a Conversion Notice) or Non-Ordinary Course Liabilities in excess of the amounts finally determined pursuant to Section 1.10 hereof but which were not taken into account in the Post-Closing Adjustment or the Estimated Closing Adjustment; (iv) the Benefit Plans and any and all benefits accrued under the Benefit Plans as of the Closing Date and any and all other instrument Liabilities arising out of, or in connection with the form or operation of the Benefit Plans on or prior to the Closing Date (other than any such Liabilities that reduce or are paid from the Total Consideration pursuant to Section 1.9 hereof); (v) any indemnification payments by Parent or the Company (to the extent not covered by insurance), resulting from the Company’s actual fraud, intentional misrepresentation or criminal matters or from a Breach by the Company or any Key Shareholder of this Agreement, the Company Transaction Agreements, the Voting Agreement or the Escrow Agreement to persons who were officers or directors of the Company or any of its Subsidiaries at or prior to the Closing pursuant to indemnification provisions contained in any Contract with the Company or any of its Subsidiaries or under the Articles of Incorporation, as amended by the Charter Amendment or bylaws of the Company or any of its Subsidiaries (“D&O Payments”); (vi) the matters set forth on Appendix C; (vii) any inaccuracies in the Statement of Closing Consideration delivered pursuant heretoto Section 1.9(c); (viii) any and all Liabilities for Taxes (x) in connection with or arising out of the activities or business of the Company or its Subsidiaries on or prior to the Closing Date in excess of the amount of such Taxes reflected as a liability in the computation of Closing Net Assets, or (y) owing by any Person other than the Company or its Subsidiaries for which the Company or its Subsidiaries may be liable and which arises from events or circumstances existing or occurring on or before the Closing Date, including, without limitationlimitation (A) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, the Documents. Notwithstanding anything to the contrary in this Agreementlocal, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder or foreign law), (B) as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7transferee or successor, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (bC) by Contract; (ix) with respect to each Dissenting Share, any payments by Parent in respect of demands for appraisal of such Dissenting Shares to the Investor Entities associated with each Investorextent such payments exceed the net amount paid to a share of Company Stock of a same class and series that is not a Dissenting Share, in an aggregate amount in excess of taking into account this Article IX and the Purchase Price of Escrow Agreement; (x) the shares issued failure by the Company to such Investor make any notices or its predecessors in interest as shown obtain any consents, licenses, permits or approvals listed or required to be listed on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date 3.3 to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateDisclosure Schedule.
Appears in 1 contract
Sources: Merger Agreement (Webmethods Inc)
General Indemnification. The Corporation shall (a) Seller and ADSC, jointly and severally, agree to indemnify, defend and hold each InvestorBuyer, its affiliates, HPS and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors employees and assigns Affiliates (each an "Investor Entity"a “Buyer Indemnitee” and together the “Buyer Indemnitees”) harmless from any and against all Losses (as defined below) incurred suffered or suffered by an Investor Entity (whether incurred or suffered paid, directly or indirectly through ownership indirectly, as a result of: (i) any breach of Series A Nonany representation or warranty made by Seller, the Company or ADSC in this Agreement or any certificate executed by Seller, the Company or ADSC in connection herewith; (ii) any breach by Seller, the Company, ADSC or any of their Affiliates of their respective covenants, agreements or undertakings contained herein; (iii) any Liability of Seller, the Company, ADSC or any of their Affiliates that is not an Assumed Liability; (iv) any Liability of Seller, the Company, ADSC or any of their Affiliates (but as to Seller or ADSC, only with respect to the Assets) for unpaid Taxes with respect to any Straddle Period to the extent allocable to the portion of such period beginning before and ending on the Closing Date and to the extent that such Taxes exceed the amount reserved for such Taxes included in the Assets and taken into account in computing the Net Working Capital Adjustment; (v) any Liability of the Company for the unpaid Taxes of any Person (including ADSC, Seller and their Affiliates under Treasury Regulation Section 1.1502-Voting Preferred Shares 6 (or Conversion Sharesany similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise; (vi) any Liability resulting from, arising out of, relating to, in the nature of, or caused by the matters set forth on Schedule 2.8 (other than Item 2 which shall be indemnifiable pursuant to Section 7.2(a)(vii)); and (vii) any Liability resulting from (a) any breach of any or arising out of the representations, warranties, covenants or agreements made by it matters set forth in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, Item 2 of Schedule 2.8 (the Documents, and “Escrow Matters”).
(b) any third party claim made against an Investor Entity relating Buyer and HPS, jointly and severally, agree to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the CorporationSeller, its affiliates, ADSC and each of their respective officers, directors, employees, agents, consultants, representatives, successors agents and assigns Affiliates (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless against from any and all Losses arising from suffered or paid, directly or indirectly, as a result of (i) the breach of any of its representations, warranties, covenants representation or agreements warranty made by Buyer or HPS in this Agreement or any certificate executed by Buyer in connection herewith, (ii) any breach by Buyer or HPS of their respective covenants, agreements or undertakings contained herein, (iii) the Assumed Liabilities and (iv) any Liability arising following the Closing to the extent resulting from the conduct or operation of the Company by Buyer following the Closing Date (and which is not otherwise indemnifiable by Seller, the Company or ADSC under this ARTICLE 7).
(c) The purchase of the Company Interests by Buyer is intended by the parties to be treated for all state and local income tax purposes as the purchase by Buyer of the assets of the Company, resulting in Buyer (or HPS or Affiliates) being able to claim for state and local income tax purposes depreciation or amortization deductions with respect to those assets in an amount equal to the portion of the Purchase Price allocated to the Company Interests, such portion not to exceed $25,000,000 (the “Anticipated State Tax Benefits”). If Buyer, HPS or any Affiliate (collectively, the “Tax Indemnitees”) shall not be entitled to claim, under applicable state or local Law, or shall suffer a disallowance of all or any portion of the Anticipated State Tax Benefits (the “Lost Tax Benefits”) as a direct result of the purchase of the Company Interests not being treated as an asset purchase for state or local income tax purposes by any taxing authority in any certificate one or more states or political subdivisions of a state, then the Tax Indemnitees shall have suffered a “Tax Loss” for purposes of this Agreement and Seller (the “Tax Indemnitor”) shall indemnify and hold the Tax Indemnitees harmless from any and all such Tax Losses. The amount payable by the Tax Indemnitor to the Tax Indemnitees by reason of any Tax Loss shall be an amount that is equal to (i) in the case of the Tax Indemnitees not being entitled to claim the Lost Tax Benefits, the difference between (a) the applicable state or local income tax liability of the Tax Indemnitees without claiming the Lost Tax Benefits and (b) what would have been the applicable state or local income tax liability of the Tax Indemnitees had they been able to claim the Lost Tax Benefits, and (ii) in the case of a disallowance by a state or local taxing authority of Lost Tax Benefits, the sum of (x) the resulting state or local income tax deficiency plus (y) any applicable interest, penalties or additions to tax. The Tax Indemnitees agree, to the extent not in violation of applicable Law, to use their reasonable best efforts to prepare and file their state or local income tax returns claiming the Anticipated State Tax Benefits and, in the case of an audit of any such return, defend such return, consistent with the treatment of the purchase of the Company Interests as an asset purchase. Except as otherwise provided in this Section 7.2(c), the Tax Indemnitees shall contest the proposed disallowance by a state or local taxing authority of all or any portion of the Anticipated State Tax Benefits and shall control all aspects of such contest (including the content of all written submissions and choice of forum), but shall permit the Tax Indemnitor to participate in the defense of such contest to the extent permitted by applicable Law and to the extent such defense relates to the proposed disallowance of all or any portion of the Anticipated State Tax Benefits. The Tax Indemnitor shall pay on demand all reasonable attorneys’ fees, accountants’ fees and other instrument delivered out-of-pocket costs and expenses (excluding any Tax Indemnitee internal costs or expenses) incurred by the Tax Indemnitor and the Tax Indemnitees. Except as otherwise provided in this Section 7.2(c), any amount payable by the Tax Indemnitor to the Tax Indemnitees pursuant heretoto this Section 7.2(c) shall be payable no later than thirty (30) days following receipt by the Tax Indemnitor of a written demand therefor from HPS accompanied by a statement (a) describing in reasonable detail the circumstances resulting in the Tax Loss, including, without limitation, the Documentsapplicable tax filings (but only if the Tax Indemnitor signs a confidentiality agreement mutually agreeable to the parties) and, in the case of a proposed disallowance of Anticipated State Tax Benefits by a state or local taxing authority, the state and local taxing authority’s response signifying the proposed disallowance of the Anticipated State Tax Benefits (redacted to the extent necessary to protect information unrelated to the proposed disallowance of Anticipated State Tax Benefits) and (b) containing a calculation of the amount of the indemnity claimed by the Tax Indemnitees (the “Statement”). Such demand shall be made no earlier than (x) thirty (30) days prior to the filing of any state or local income tax return that reflects the Tax Loss or (y) if such Tax Loss is not reflected on any state or local tax return, upon conclusion of the contest, in accordance with this Section 7.2(c), of the disallowance of Lost Tax Benefits. In the event the Tax Indemnitor reasonably determines that the Statement does not contain information sufficient to allow the Tax Indemnitor to verify the accuracy of HPS’ calculation of the amount of the indemnity owed, then (i) the Tax Indemnitor shall within thirty (30) days of receipt of such Statement, notify HPS in writing (the “Calculation Notice”), and HPS shall provide the Tax Indemnitor such additional information as is reasonably requested by the Tax Indemnitor (provided the Tax Indemnitor signs a confidentiality agreement mutually agreeable to the parties) to verify the accuracy of HPS’ calculation, (ii) should the parties not agree on such calculation within the thirty (30) day period following the receipt of the Calculation Notice by HPS, the parties shall mutually select an independent certified public accounting firm to verify the accuracy of such calculation, which accounting firm shall sign a mutually agreeable confidentiality agreement, (iii) HPS shall provide such information to such accounting firm as is reasonably requested by such accounting firm to perform such verification, (iv) such accounting firm shall complete its verification promptly and its determination of the amount of the indemnity owed shall be binding on the parties and (v) the Tax Indemnitor shall, no later than ten (10) days after the accounting firm makes its determination, pay the costs and expense of such accounting firm and pay to HPS the amount of the indemnity determined by the accounting firm to be owed; provided, however, that if the accounting firm determines that no indemnity is due the Tax Indemnitees, then HPS shall pay the costs and expenses of such accounting firm. Notwithstanding anything to the contrary in the immediately preceding sentence, if the parties agree on such calculation within the thirty (30) day period following the receipt of the Calculation Notice by HPS, then the Tax Indemnitor shall pay to the Tax Indemnitees the amount of indemnity due immediately after reaching such agreement. In the event a state or local taxing authority challenges the treatment of the purchase of the Company Interests as an asset purchase, then HPS shall (i) provide to the Tax Indemnitor prompt written notice of such challenge, (ii) provide to the Tax Indemnitor copies of all material correspondence to and from such taxing authority related to such challenge and the contest of such challenge (redacted to the extent necessary to protect information unrelated to the proposed disallowance of Anticipated State Tax Benefits) and (iii) consult in good faith with the Tax Indemnitor in the conduct of such contest. In the event any Tax Indemnitee proposes (based upon the determination of independent certified public accountants that taking the position on a state or local income tax return that the purchase of the Company Interests is an asset purchase is more likely than not to not be sustained if challenged in court) to take the position on such state or local tax return that the purchase of the Company Interests is not an asset purchase (the “Proposed Position”), then (i) HPS shall, no less than forty-five (45) days prior to the filing due date of such return, notify Seller in writing of such Proposed Position and (ii) the Tax Indemnitee shall have no obligation to file such return inconsistent with the Proposed Position, or contest or continue to contest the disallowance by a state or local taxing authority of all or any portion of the Anticipated State Tax Benefits. Notwithstanding anything to the contrary in this AgreementSection 7.2(c), the Tax Indemnitees shall have no indemnification payment obligation to contest the disallowance by a state or local taxing authority of all or any portion of the Anticipated State Tax Benefits beyond any initial state court judgment. Notwithstanding anything to the contrary in this Section 7.2(c), if within the forty-five (45) day period referenced above, the Tax Indemnitor delivers to HPS a written opinion from competent tax counsel, selected and compensated by Seller, to the effect that it is more likely than not that the treatment of the purchase of the Company Interests as an asset purchase will, if challenged by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of applicable state or local taxing authority, be sustained in court, then the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which applicable Tax Indemnitee shall not be subject to take the Deductible Proposed Position on the applicable state or Limit) shall be payable (a) until local tax return. The parties agree that the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess portion of the Purchase Price allocable to the Company Interests by the Tax Indemnitees on their state and local tax returns shall not exceed the amount of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto Purchase Price allocated (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms agreement of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date parties not to exceed $25,000,000) to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined Company Interests in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate accordance with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Datethis Agreement.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Heartland Payment Systems Inc)
General Indemnification. The Subject to the limitations in Sections 9.4 and 9.5, (i) the Corporation shall (without duplication in respect of any Loss) indemnify, defend and hold each save harmless the Investor, its affiliateseach holder of Purchased Shares, each holder of EdgeStone Warrants and all Permitted Transferees holding any Purchased Shares and EdgeStone Warrants, and each of their respective officers, directors, partners, managing directorsshareholders, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultantsrepresentatives and successors, representativesand (ii) the Investor, each holder of Purchased Shares, each holder of EdgeStone Warrants and all Permitted Transferees holding any Purchased Shares and EdgeStone Warrants shall indemnify, defend and save harmless the Corporation, and each of its shareholders, officers, directors, employees, agents, representatives and successors (the Person or Persons so covenanting and assigns harmless agreeing to indemnify another Person or Persons being referred to in this Article 9 as the "Indemnifying Party" and the Person or Persons to be indemnified being referred to collectively as the "Indemnitees" and individually an "Indemnitee"), on an after-tax basis as contemplated by Section 9.13, from and against any and all Losses suffered or incurred by the Indemnitee, as a direct or indirect result of, or arising from the in connection with or related in any manner whatever to:
(a) any misrepresentation or breach of any of its representations, warranties, covenants warranty made or agreements in this Agreement given by (or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches case of the representations and warranties in Section 2.7Article 5, as they relate on behalf of) the Indemnifying Party in this Agreement or any Other Agreement; or
(b) any failure by the Indemnifying Party to Taxes, Sections 2.26 and 2.27, to observe or perform any covenants covenant or obligation contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing DateOther Agreement.
Appears in 1 contract
Sources: Class a Convertible Preferred Share Subscription Agreement (Mitel Networks Corp)
General Indemnification. The (a) Subject to the other provisions of this ARTICLE VIII, after the Closing, the Stakeholders shall, pro rata in accordance with each such Stakeholder’s Percentage Interest, severally, and not jointly with respect to any Loss, indemnify, defend and hold Parent, Merger Sub, Surviving Corporation and their respective Subsidiaries, officers, directors, employees, managers, members, partners, Affiliates and agents (each a “Parent Indemnitee”) harmless from and against (i) any and all damages, losses, liabilities, obligations, Taxes, demands or claims of any kind, deficiencies, costs, interest, expenses, awards, judgments and penalties (each a “Loss”) suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of any (x) breach of any representation or warranty (A) contained in ARTICLE III or (B) in any certificate delivered by the Company to Parent or Merger Sub pursuant to this Agreement, (y) any breach by the Company of any of the covenants or agreements contained herein which are to be performed by the Company, its Subsidiaries or Affiliates on or before the Closing Date or (z) a determination by a Taxing Authority, following a payment by the Parent to the Stakeholders pursuant to Section 10.01(b)(1), that a Tax Refund is less than the amount so paid by the Parent (provided that the obligation in this clause (z) shall survive until the Survival Period Termination Date), (ii) Losses suffered or paid, directly or indirectly, as a result of, in connection with, or arising out of any Agreed Indemnifiable Event and any Resolution thereof and (iii) breach by Stakeholder Representative or any of its officers, directors, employees, managers, members, partners, Affiliates and agents of any of the covenants or agreements contained herein which are to be performed by the Stakeholder Representative, whether on, before or after the Closing Date.
(b) Subject to the other provisions of this ARTICLE VIII, after the Closing, Parent and the Surviving Corporation, jointly and severally, shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of the representations, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, Stakeholders and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agentsmanagers, consultantsmembers, representativespartners, successors Affiliates and assigns agents (each a “Seller Indemnitee”) harmless from and against all any Losses suffered or paid, directly or indirectly, as a result of, in connection with, or arising from the out of (i) any breach of any representation or warranty (A) contained in ARTICLE IV or (B) in any certificate delivered by Parent or Merger Sub to the Company pursuant to this Agreement and (ii) any breach by Parent or Merger Sub of its representations, warranties, any of the covenants or agreements in this Agreement contained herein which are to be performed by Parent or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity)Merger Sub, whether such Losses arise out of or relate to any event or state of facts occurring or existing beforeon, on before or after the Closing Date.
Appears in 1 contract
General Indemnification. The Corporation shall indemnifyPurchaser indemnifies, defend holds harmless and hold each Investordefends Seller, its affiliatesSeller’s Affiliates, agents, employees, representatives and each trustees, the existing trustees under any deed of their respective officerstrust securing the Loans and any predecessor or successor of Seller (collectively, directorsthe “Indemnified Persons”) for, from and against any and all Claims to which any of the Indemnified Persons may become subject on account of, arising out of or related to any act, omission, conduct or activity of Purchaser or any of Purchaser’s Affiliates, agents, employees, members, partners, managing directorsprincipals, affiliatesrepresentatives or trustees at any time both before or after the Closing Date (but excluding any liabilities or obligations retained by Seller under the Loans or the Loan Documents which accrue or arise prior to the Closing Date and are not caused by Purchaser) on account of, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, of or resulting from related to (a) this Agreement; (b) any breach of the Loans; (c) the condition, control, operation or ownership of any of the Properties, including the presence or release of any hazardous or toxic fluids, substances or materials on, under or from any Property; (d) Purchaser’s due diligence review of the Loans or the Properties; (e) the servicing of the Loans or any other breach by Purchaser of the covenant set forth in Section 4.6 relating to unfair collection practices or any acts and/or omissions by Purchaser resulting in any Claim that Seller, subsequent to the date of this Agreement, was in any way involved in or had in any way authorized any unlawful collection practices in connection with the Loans; (f) any inaccuracy in or breach of Purchaser’s representations, warranties, covenants or agreements acknowledgments made by it in pursuant to this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, Agreement; and (bg) any third party claim made Claim for a finder’s fee or broker’s commission asserted against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally Seller and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in transaction contemplated by this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or after the Closing Date.
Appears in 1 contract
Sources: Loan Purchase and Sale Agreement (Starwood Property Trust, Inc.)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) If, after the Closing Date, Purchaser and/or its officers, directors and/or Affiliates (each a “Purchaser Indemnitee” and together the “Purchaser Indemnitees”) suffer any breach damages, losses, liabilities, obligations, claims of any kind, interest or expenses (but excluding consequential damages (Folgeschaeden) or loss of profits (entgangener Gewinn)) (“Loss”) as a result of (i) the representations, warranties, covenants failure of any representation or agreements warranty made by it the Sellers in this Agreement or any certificate delivered pursuant to this Agreement to be true and correct as of the date made (provided, however, that for the purposes of this Section 9.2(a)(i), in determining whether there has been a breach of any such warranty or representation, if any such warranty or representation is qualified in any agreementrespect by materiality or Material Adverse Effect, certificate such qualifications or other instrument delivered pursuant hereto including, without limitation, the Documentsexceptions will be ignored), and (bii) any third party claim made against an Investor Entity relating to any transaction breach by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale Sellers of any of their covenants or agreements contained herein which are to be performed by the Series A Non-Voting Preferred Shares Sellers on or Common Shares hereunder. Each Investorbefore the Closing Date, severally then, subject to the other provisions of this Article 9, and not jointlyexcept as set forth in Section 9.4(f) and the last sentence of Section 9.6(h), such Purchaser Indemnitee(s) shall be entitled to be reimbursed the amount of such Loss solely from the Escrow Account or by drawing on the General Credit Support, as the case may be.
(b) After the Closing, Purchaser agrees to indemnify, defend and hold the Corporation, its affiliates, and each of Sellers and/or their respective officers, directorsdirectors and/or Affiliates (each a “Seller Indemnitee” and together the “Seller Indemnitees”) harmless from any Loss suffered or paid, employeesdirectly or indirectly, agentsas a result of (i) the failure of any representation or warranty made by Purchaser in this Agreement to be true and correct as of the date made, consultants, representatives, successors and assigns harmless against all Losses arising from the (ii) any breach by Purchaser of any of its representations, warranties, covenants or agreements in this Agreement or in contained herein and (iii) any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment breach by the Corporation pursuant to this Section 11 with respect to Company of any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate covenants or agreements contained herein which are to Taxes, Sections 2.26 and 2.27, to any covenants contained in this Agreement or any other Document and to willful misrepresentation, fraud or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or (b) with respect to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased performed by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless each Investor Entity against any and all Losses (as defined in Section 11.2 and not subject to any Deductible or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating to any WFI Entity being or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out of or relate to any event or state of facts occurring or existing before, on or Company after the Closing Date.
Appears in 1 contract
General Indemnification. The Corporation (a) Subject to the provisions contained in this Article VII, from and after the Closing, Seller shall indemnify, defend indemnify and hold each Investorharmless Buyer, its affiliatesParent, and each of their respective officersAffiliates, directorsRepresentatives, partnerssuccessors, managing directors, affiliates, employees, agents, consultants, representatives, successors and permitted assigns (each an "Investor Entity"collectively, the “Buyer Indemnified Persons”) harmless from and against all in respect of any Losses (that any Buyer Indemnified Person incurs, sustains, or suffers as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out a result of, relating to, or resulting from caused by:
(ai) any breach of or inaccuracy in any of the representations, warranties, covenants representation or agreements warranty made by it Seller in this Agreement Article II or in any other Transaction Document;
(ii) any nonfulfillment of or breach by Seller of any covenant, agreement, certificate or other instrument delivered pursuant hereto including, without limitation, the Documents, and (b) any third party claim obligation made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of their respective officers, directors, employees, agents, consultants, representatives, successors and assigns harmless against all Losses arising from the breach of any of its representations, warranties, covenants or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, including, without limitation, the Documents. Notwithstanding anything to the contrary in this Agreement, no indemnification payment by the Corporation pursuant to this Section 11 with respect to any Losses otherwise payable hereunder as a result of a breach of its representations and warranties (other than any Losses resulting from breaches of the representations and warranties in Section 2.7, as they relate to Taxes, Sections 2.26 and 2.27, to any covenants contained Seller in this Agreement or any other Document and to willful misrepresentation, fraud Transaction Document; or
(iii) any Excluded Liabilities or deceit, which shall not be subject to the Deductible or Limit) shall be payable (a) until the time as such Losses shall aggregate (on a cumulative basis and not on a per item basis) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only to the extent that such Losses, in the aggregate for all Investors, exceed the Deductible; or Excluded Assets.
(b) with respect Subject to the Investor Entities associated with each Investorprovisions contained in this Article VII, in an aggregate amount in excess of after the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown Closing, Buyer and Parent, on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Valuea joint and several basis, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend indemnify and hold harmless each Investor Entity against Seller and its Affiliates, Representatives, successors, and permitted assigns (collectively, the “Seller Indemnified Persons”) in respect of any Losses that any Seller Indemnified Person incurs, sustains, or suffers as a result of:
(i) any breach of or inaccuracy in any representation or warranty made by Buyer or Parent contained in Article III;
(ii) any nonfulfillment of or breach by Buyer or Parent of any covenant, agreement, or other obligation made by Buyer or Parent in this Agreement; 05466425.6 47
(iii) any and all Losses (as defined in Section 11.2 and not subject to any Deductible suffered or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of or relating Seller Indemnified Persons in connection with Seller’s obligations pursuant to any WFI Entity being or having been an ERISA Affiliate with any other Person (Section 4.12 other than another WFI Entity), whether to the extent any such Losses arise out are suffered or incurred as a result of or relate to Fraud; or
(iv) any event or state of facts occurring or existing before, on or after the Closing DateAssumed Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Priority Technology Holdings, Inc.)
General Indemnification. The Corporation shall indemnify, defend and hold each Investor, its affiliates, and each of their respective officers, directors, partners, managing directors, affiliates, employees, agents, consultants, representatives, successors and assigns (each an "Investor Entity") harmless from and against all Losses (as defined below) incurred or suffered by an Investor Entity (whether incurred or suffered directly or indirectly through ownership of Series A Non-Voting Preferred Shares or Conversion Shares) arising out of, relating to, or resulting from (a) any breach of any of If, after the representationsClosing Date, warranties, covenants or agreements made by it in this Agreement or in any agreement, certificate or other instrument delivered pursuant hereto including, without limitationBuyer, the Documents, and (b) any third party claim made against an Investor Entity relating to any transaction by the Corporation financed in whole or in part, directly or indirectly, with proceeds from the sale of any of the Series A Non-Voting Preferred Shares or Common Shares hereunder. Each Investor, severally and not jointly, shall indemnify, defend and hold the Corporation, its affiliates, and each of Company and/or their respective officers, directors, employees, agentsAffiliates and/or agents (each a “Buyer Indemnitee” and together the “Buyer Indemnitees”) suffer any damages, consultantslosses, representativesliabilities, successors and assigns harmless against all Losses arising from the breach obligations, claims of any of its representationskind, warranties, covenants interest or agreements in this Agreement or in any certificate or other instrument delivered pursuant hereto, expenses (including, without limitation, reasonable attorneys’ fees and expenses) (“Loss”), as a result of, in connection with, or arising out of (i) the Documents. Notwithstanding anything failure of any representation or warranty made by the Company or Seller contained in Article III of this Agreement to be true and correct (A) as of the contrary in date of this Agreement, no indemnification payment or (B) (x) as of the Closing Date or (y) as of the date when made in the case of any representation or warranty which specifically relates to an earlier date, as applicable, (ii) any breach by the Corporation pursuant to this Section 11 with respect to Company of any Losses otherwise payable hereunder as a result of a breach of its representations and warranties covenants or agreements contained herein which are to be performed by the Company on or before the Closing Date, or (iii) any breach by Seller of any of its covenants or agreements contained herein, then, subject in all cases to the other than any Losses resulting from breaches provisions of this Article VIII, or (iv) the representations and warranties in Section 2.7Pending Tax Liability or further obligations under the ABS Agreement, as they relate to Taxes, Sections 2.26 and 2.27if any, to any covenants contained in this Agreement the extent such amounts were not paid or any other Document reserved against prior to Closing, Seller agrees to indemnify and hold harmless such Buyer Indemnitee(s) and such Buyer Indemnitee(s) shall be entitled to willful misrepresentationbe reimbursed the amount of such Loss, fraud or deceit, which shall not be subject to the Deductible limitations set forth in Section 8.4. Any such reimbursement or Limit) indemnity payments shall be payable (a) until made from the time as Escrow Account, provided, if such Losses Loss occurs after termination of the Escrow Account or exhaustion of the Escrow Fund, Seller shall aggregate (on a cumulative basis and not on a per item basisindemnify Buyer Indemnitee(s) for all Investor Entities more than US$5,000,000 (the "Deductible"), and then only amount of the Loss to the extent that such Losses, in not covered by the aggregate for all Investors, exceed the Deductible; or Escrow Account.
(b) with respect After the Closing, each of Buyer and the Company agrees to the Investor Entities associated with each Investor, in an aggregate amount in excess of the Purchase Price of the shares issued to such Investor or its predecessors in interest as shown on Schedule 1.1 hereto (as increased by the amounts by which the Series A Non-Voting Liquidation Value, as defined in the Terms of the Series A Non-Voting Preferred Shares, Series A in the Articles of Amendment, would increase from the Closing Date to the date of determination) (the "Limit"). The Corporation shall also indemnify, defend and hold harmless Seller and its officers, directors, employees, Affiliates and/or agents (each Investor Entity against a “Seller Indemnitee” and together the “Seller Indemnitees”) from any and all Losses (Loss as defined a result of, in Section 11.2 and not subject to any Deductible connection with, or Limit) arising under Title IV of ERISA, Section 302 of ERISA and Sections 412 and 4971 of the Code which may be incurred by any of them arising out of (i) the failure of any representation or relating warranty made by Buyer in this Agreement contained in Article IV of this Agreement to any WFI Entity being be true and correct (A) as of the date of this Agreement or having been an ERISA Affiliate with any other Person (other than another WFI Entity), whether such Losses arise out B)(x) as of or relate to any event or state of facts occurring or existing before, on or after the Closing DateDate or (y) as of the date when made in the case of any representation or warranty which specifically relates to an earlier date, as applicable, (ii) any breach by Buyer of any of its covenants or agreements contained herein.
(c) The obligations to indemnify and hold harmless pursuant to clauses 8.2(a) and 8.2(b) shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 8.1, except for claims for indemnification pursuant to such clauses asserted prior to the end of such period which claims shall survive until final resolution thereof.
Appears in 1 contract