Common use of Indemnification by Parent and Seller Clause in Contracts

Indemnification by Parent and Seller. Each of Parent and Seller agree to and shall, jointly and severally, indemnify the Buyer Parties and hold each of them harmless against any Losses which the Buyer Parties may suffer, sustain or become subject to, as a result of: (a) any breach of any representation or warranty made by any of Parent or Seller in this Agreement; (b) any breach of any covenant or agreement by Parent or Seller under this Agreement or under any Transaction Document; (c) any Excluded Liabilities or (d) any of the matters set forth on Schedule 8.1 attached hereto (the “Special Indemnification Schedule”); provided, that neither Parent nor Seller shall have any liability under Section 8.1(a) (other than with respect to any breach of Section 6.2(a) (Authorization); Section 6.8(a) (Assets); or Section 6.15 (Litigation); or to any fraud by Parent or Seller) unless the aggregate of all Losses relating thereto for which Parent and Seller would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000.00 (“Threshold Amount”), and then Parent and Seller shall be liable for all such Losses including the Threshold Amount. Notwithstanding the foregoing, (x) Parent and Seller shall not have any liability under Section 8.1(a) with respect to any breach of Section 6.18 (Environmental Matters) unless the amount of Losses relating thereto exceeds $250,000.00 and then Parent and Seller shall be liable only for all such Losses in excess of such $250,000.00 threshold (and in which event the Threshold Amount shall be met by such Losses); and (y) Parent and Seller shall not be liable for any Losses pursuant to Section 8.1(a) that exceed in the aggregate an amount (the “Restricted Amount”) equal to 15% of the Purchase Price (as adjusted by Section 4.2(d)) plus, with respect to Losses relating to any breaches of Section 6.18 (Environmental) only, an amount equal to the difference of $8 million minus the Restricted Amount; provided, however, that this limitation shall not be applicable to any breach of Section 6.2(a) or Section 6.8(a) or to any fraud by Parent or Seller. In no event (other than with respect to any fraud by Parent or Seller) shall Parent and Seller be liable for any Losses pursuant to this Article VIII that in the aggregate exceed the Purchase Price, as adjusted pursuant to Section 4.2(d).

Indemnification by Parent and Seller. Each of Subject to the limits set forth in this Article 9:, Parent and Seller agree to and shallSeller, jointly and severally, indemnify the Buyer Parties agree to indemnify, defend and hold Purchaser and NLSI and each of them their shareholders, affiliates, officers, directors, employees, agents, successors and assigns (Purchaser, NLSI and such persons are hereinafter collectively referred to as “Purchaser’s Indemnified Persons”), harmless from and against any Losses which the Buyer Parties and all loss, liability, damage or deficiency (including interest, penalties, costs of preparation and investigation, and reasonable attorneys’ fees) (collectively “Losses”) that Purchaser’s Indemnified Persons may suffer, sustain sustain, incur or become subject to, as a result ofarising out of or due to: (a) any breach inaccuracy of any representation or warranty made by any of Parent or Seller in this Agreement; (b) any the material breach of any covenant warranty of Parent or Seller in this Agreement; (c) the non-fulfillment of any covenant, undertaking, agreement by or other obligation of Parent or Seller under this Agreement or under any Transaction DocumentAgreement; (c) any Excluded Liabilities or (d) any of the matters set forth on Schedule 8.1 attached hereto (the “Special Indemnification Schedule”); provided, that neither Parent nor Seller shall have any liability under Section 8.1(a) (other than with respect to any breach of Section 6.2(a) (Authorization); Section 6.8(a) (Assets); or Section 6.15 (Litigation); or to any fraud noncompliance by Parent or SellerSeller with bulk sales laws or similar laws which may be applicable to the sale or transfer of the Business, (e) unless any liabilities or damages incurred by Purchaser related to the aggregate Excluded Assets and/or the Excluded Liabilities and (f) any liability incurred by Purchaser pertaining to the ownership, operation or control of all Losses relating thereto for which Parent and Seller wouldthe Hire Agreements or Collateral prior to the Closing Date, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000.00 (“Threshold Amount”), and then other than the Assumed Liabilities. Parent and Seller shall be liable have no liability for all such Losses including the Threshold Amount. Notwithstanding the foregoing, (x) Parent and Seller shall not have any liability under Section 8.1(a) indemnification or otherwise with respect to claims under Section 9.1 or otherwise related to this transaction until the total of all Losses with respect to such matters, net of any breach of Section 6.18 (Environmental Matters) unless the amount of Losses relating thereto exceeds $250,000.00 and then Parent and Seller shall be liable only for all such Losses in excess of such $250,000.00 threshold (and in which event the Threshold Amount shall be met by such Losses); and (y) Parent and Seller shall not be liable for any Losses reduction pursuant to Section 8.1(a9.5, exceeds Two Hundred Fifty Thousand United States Dollars (US$250,000) that and then only for the amount by which such Losses, net of any reduction pursuant to Section 9.5, exceed Two Hundred Fifty Thousand United States Dollars (US$250,000), and do not exceed, in the aggregate an amount (the “Restricted Amount”) equal to 15% of the Purchase Price (as adjusted by Section 4.2(d)) plus, with respect to Losses relating to any breaches of Section 6.18 (Environmental) onlyaggregate, an amount equal to the difference of $8 million minus Purchase Price, provided the Restricted Amount; provided, however, that limitations contained in this limitation sentence shall not be applicable apply to any amounts owed to Purchaser pursuant to Sections 2.1, 2.2, 3.3, 4.1.7, 4.1.12, 4.1.23, 4.1.26, 6.2(c), 6.5, 6.6, 6.7, 6.12, 6.15, 6.17, 6.20, 6.21, 6.24 and 6.25, or as a result of, or in connection with, a breach of Section 6.2(a) or Section 6.8(a) or to any fraud of those Sections. Notwithstanding the qualification by Parent or Seller. In no event (other than with respect to any fraud “best knowledge” of certain 30 warranties provided by Parent or Seller) shall Parent and Seller in Article 4, should Purchaser suffer a loss due to Seller’s breach of these qualified warranties, Seller’s indemnification obligation shall be liable for considered by the parties hereto as if such qualifications were not made and Parent and Seller each agree not to assert its lack of knowledge as a defense to any Losses pursuant to this Article VIII that in the aggregate exceed the Purchase Price, as adjusted pursuant to Section 4.2(d)action or claim made by Purchaser or NLSI.

Indemnification by Parent and Seller. Each of Subject to the limits set forth in this Article 11, Parent and Seller agree to and shallSeller, jointly and severally, indemnify the Buyer Parties agree to indemnify, defend and hold Purchaser and each of them Purchaser's shareholders, affiliates, officers, directors, employees, agents, successors and assigns (Purchaser and such persons are hereinafter collectively referred to as "Purchaser's Indemnified Persons"), harmless from and against any Losses which the Buyer Parties and all loss, liability, damage or deficiency (including interest, penalties, costs of preparation and investigation, and reasonable attorneys' fees) (collectively "Losses") that Purchaser's Indemnified Persons may suffer, sustain sustain, incur or become subject to, as a result ofarising out of or due to: (a) any breach inaccuracy of any representation or warranty made by any of Parent or and/or Seller in this Agreement; (b) any the material breach of any covenant or agreement by warranty of Parent or and/or Seller under in this Agreement or under any Transaction DocumentAgreement; (c) the non-fulfillment of any Excluded Liabilities covenant, undertaking, agreement or other obligation of Parent and/or Seller under this Agreement; (d) any noncompliance by Parent and/or Seller with bulk sales laws or similar laws which may be applicable to the sale or transfer of the matters set forth on Schedule 8.1 attached hereto (the “Special Indemnification Schedule”); provided, that neither Parent nor Seller shall have any liability under Section 8.1(a) (other than with respect to any breach of Section 6.2(a) (Authorization); Section 6.8(a) (Purchased Assets); or Section 6.15 (Litigation); or to e) any fraud by Parent or Seller) unless the aggregate of all Losses relating thereto for which Parent and Seller would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000.00 (“Threshold Amount”), and then Excluded Liability. Parent and Seller shall be liable have no liability for all such Losses including the Threshold Amount. Notwithstanding the foregoing, (x) Parent and Seller shall not have any liability under Section 8.1(a) indemnification or otherwise with respect to claims under this Section 11.1 or otherwise related to this transaction until the total of all Losses with respect to such matters, net of any breach of Section 6.18 (Environmental Matters) unless the amount of Losses relating thereto exceeds $250,000.00 and then Parent and Seller shall be liable only for all such Losses in excess of such $250,000.00 threshold (and in which event the Threshold Amount shall be met by such Losses); and (y) Parent and Seller shall not be liable for any Losses reduction pursuant to Section 8.1(a11.5, exceeds Four Hundred Fifty Thousand Dollars ($450,000) that and then only for the amount by which such Losses, net of any reduction pursuant to Section 11.5, exceed Four Hundred Fifty Thousand Dollars ($450,000), and do not exceed, in the aggregate an amount (the “Restricted Amount”) equal to 15% of the Purchase Price (as adjusted by Section 4.2(d)) plus, with respect to Losses relating to any breaches of Section 6.18 (Environmental) onlyaggregate, an amount equal to the difference amount of $8 million minus gross receivables of the Restricted Amount; providedAccounts as set forth on Seller's September 30, however2003 balance sheet, that this limitation a copy of which Seller shall not be applicable deliver to any breach of Section 6.2(a) Purchaser at the Closing or Section 6.8(a) or to any fraud by Parent or Seller. In no event (other than with respect to any fraud by Parent or Seller) shall Parent and Seller be liable for any Losses pursuant to this Article VIII that in the aggregate exceed the Purchase Price, as adjusted pursuant to Section 4.2(d)soon as practicable thereafter.

Indemnification by Parent and Seller. Each of Subject to Section 8.5, Parent and Seller agree to and shallagree, jointly and severally, indemnify the Buyer Parties to indemnify, defend and hold each of them harmless Purchaser, its Affiliates, and their respective directors, officers, employees and agents (each, a “Purchaser Indemnified Party”), from and against any Losses which the Buyer Parties may sufferand all Damages asserted against, sustain or become subject relating to, as a result of: imposed upon, suffered or incurred by any of the foregoing Persons by reason of or resulting from (a) any untrue representation of, or breach of any representation or warranty made by any of Parent or Seller in any part of this Agreement; (b) any breach non-fulfillment of any covenant covenant, agreement or agreement by undertaking of Parent or Seller under in any part of this Agreement or under any Transaction DocumentAgreement; and (c) subject to the immediately following sentence, any Excluded Liabilities or Retained Liability; (d) any liability for Taxes resulting from or attributable to the Pre-Closing Transactions and any liability for Taxes attributable to Seller or either of the Subsidiaries (with Income Taxes of either of the Subsidiaries meaning Income Taxes arising after application of the relevant NOL Threshold) for Taxable periods (or portions thereof) ending on or prior to the Closing Date, other than Taxes reflected in the Final Subsidiary Closing Balance Sheet and (e) either of the matters set forth described on Schedule 8.1 attached hereto 8.2. No claim for indemnity can be brought against Seller under clause (c) of this Section 8.2 if the “Special Indemnification Schedule”)subject matter of the claim is based on events, facts or circumstances that also constitute a breach of, or could give rise to a valid claim of a breach of, a representation or warranty contained in Section 2.11 (Sufficiency of Purchased Assets; provided, that neither Parent nor Seller shall have any liability under Section 8.1(aOperations of Aesthetics Business) (other than but only those provisions of Section 2.11 that do not pertain to Tax Laws, Environmental Laws and laws that, if not complied with respect to any would necessarily result in a breach of Section 6.2(a) (Authorization); Section 6.8(a) (Assets); or Section 6.15 (Litigation); or to any fraud by Parent or Seller) unless the aggregate of all Losses relating thereto for which Parent and Seller would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000.00 (“Threshold Amount”2.19), Section 2.14 (FDA and then Parent and Seller shall be liable for all such Losses including Global Regulation Compliance in Connection with the Threshold Amount. Notwithstanding the foregoingAesthetics Business), Section 2.15 (Compliance with Applicable Laws), (x) Parent but only those provisions of Section 2.15 that do not pertain to Tax Laws, Environmental Laws and Seller shall laws that, if not have any liability under Section 8.1(a) 57 complied with respect to any would necessarily result in a breach of Section 6.18 (Environmental Matters) unless 2.19), it being understood and agreed that the amount exclusive remedy of Losses relating thereto exceeds $250,000.00 and then Parent and Seller shall be liable only each Purchaser Indemnified Party for all such Losses in excess any actions or claims the subject matter of which is based on events, facts or circumstances that constitute a breach of, or could give rise to a valid claim of a breach of, any of such $250,000.00 threshold (representations or warranties is a claim for indemnification under Section 8.2(a) and in which event such actions or claims will be subject to the Threshold Amount shall be met by such Losses); and (y) Parent and Seller shall not be liable for any Losses pursuant to Section 8.1(a) that exceed in the aggregate an amount (the “Restricted Amount”) equal to 15% of the Purchase Price (as adjusted by Section 4.2(d)) plus, with respect to Losses relating to any breaches limitations of Section 6.18 (Environmental) only, an amount equal to the difference of $8 million minus the Restricted Amount; provided, however, that this limitation shall not be applicable to any breach of Section 6.2(a) or Section 6.8(a) or to any fraud by Parent or Seller. In no event (other than with respect to any fraud by Parent or Seller) shall Parent and Seller be liable for any Losses pursuant to this Article VIII that in the aggregate exceed the Purchase Price, as adjusted pursuant to Section 4.2(d)8.5.

Indemnification by Parent and Seller. Each Subject to the terms and conditions of this Agreement, effective as of the Closing Date, Parent and Seller agree to and shall, jointly and severally, indemnify indemnify, hold harmless and defend Buyer, any Subsidiaries and Affiliates of Buyer and any partners, members, manager, directors, shareholders, officers, employees, attorneys, agents, contractors, consultants and representatives of Buyer or any Subsidiary or Affiliate of Buyer, and, at the Buyer Parties Buyer's request, the Company and/or its Subsidiaries, and hold each the successors, transferees and assigns of any thereof (collectively, the "BUYER INDEMNIFIED PERSONS"), from and against, and shall reimburse them harmless against for, any Losses which the Buyer Parties may suffer, sustain and all Indemnified Liabilities related to or become subject to, as a result of: arising from (ai) any breach of any representation or warranty made by of, or any of Parent misstatement or omission by, Parent, Seller or the Company in this Agreement; and (bii) any breach of any covenant or agreement by Parent of Parent, Seller or Seller under the Company in this Agreement or under any Transaction DocumentAgreement; and (ciii) any Excluded Liabilities Liability incurred by any Buyer Indemnified Person pursuant to the provisions of Section 9.01 hereof or Section 5.7 of the Merger Agreement; and (div) any Liability incurred by any Buyer Indemnified Person for any Taxes of the matters set forth on Schedule 8.1 attached hereto (the “Special Indemnification Schedule”); provided, that neither Parent nor Seller shall have any liability under Section 8.1(a) (other than Company and its Subsidiaries with respect to any breach Tax year ending on or before the Closing Date or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending after the Closing Date in either case as allocated pursuant to Section 6.2(a9.06(c) (Authorizationand regardless of whether or not such Taxes are reflected on the December 31 Unaudited Company Balance Sheet, the 1999 Balance Sheet, the Closing Balance Sheet or the books and records of the Company and its Subsidiaries); . Anything in this Section 6.8(a11.01(c) (Assets); or Section 6.15 (Litigation); or to any fraud by Parent or Seller) unless the aggregate of all Losses relating thereto for which Parent and Seller wouldcontrary notwithstanding, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000.00 (“Threshold Amount”), and then Parent and Seller shall be liable for all such Losses including have no obligation to indemnify Buyer or the Threshold AmountCompany under clause (i) of this Section 11.01(c) with respect to (x) the first $750,000 of Indemnified Liabilities, in the aggregate, which are attributable to breaches, misstatements or omissions described in clause (i) or (y) Indemnified Liabilities exceeding $19,750,000, in the aggregate, which are attributable to breaches, misstatements or omissions described in clause (i). Notwithstanding the foregoing, if (x1) Parent prior to the Closing, Seller delivers to Buyer a written notice (which Seller will use reasonable efforts, in light of the circumstances, to deliver at least three business days prior to Closing) which specifically states that (A) a representation and Seller shall not have any liability under Section 8.1(a) with respect warranty contained in Article II hereof which was true and correct in all respects at and as of the date of this Agreement has ceased to any breach be true and correct as of Section 6.18 (Environmental Matters) unless the amount of Losses relating thereto exceeds $250,000.00 and then Parent and Seller shall be liable only for all such Losses in excess of such $250,000.00 threshold (and in which event the Threshold Amount shall be met by such Losses); Closing and (yB) Parent as a result, there is a failure to satisfy the conditions contained in Section 6.05 and Seller shall not be liable for any Losses pursuant to Section 8.1(a(2) that exceed in the aggregate an amount (the “Restricted Amount”) equal to 15% of the Purchase Price (as adjusted by Section 4.2(d)) plus, with respect to Losses relating to any breaches of Section 6.18 (Environmental) only, an amount equal to the difference of $8 million minus the Restricted Amount; provided, however, that this limitation shall not be applicable to any breach of Section 6.2(a) or Section 6.8(a) or to any fraud by Parent or Seller. In no event (other than with respect to any fraud by Parent or Seller) shall Parent and Seller be liable for any Losses pursuant to this Article VIII that in the aggregate exceed the Purchase Price, as adjusted pursuant to Section 4.2(d).Buyer elects in

Indemnification by Parent and Seller. Each of Subject to Section 8.5, Parent and Seller agree to and shallagree, jointly and severally, indemnify the Buyer Parties to indemnify, defend and hold each of them harmless Purchaser, its Affiliates, and their respective directors, officers, employees and agents (each, a “Purchaser Indemnified Party”), from and against any Losses which the Buyer Parties may sufferand all Damages asserted against, sustain or become subject relating to, as a result of: imposed upon, suffered or incurred by any of the foregoing Persons by reason of or resulting from (a) any untrue representation of, or breach of any representation or warranty made by any of Parent or Seller in any part of this Agreement; (b) any breach non-fulfillment of any covenant covenant, agreement or agreement by undertaking of Parent or Seller under in any part of this Agreement or under any Transaction DocumentAgreement; and (c) subject to the immediately following sentence, any Excluded Liabilities or Retained Liability; (d) any liability for Taxes resulting from or attributable to the Pre-Closing Transactions and any liability for Taxes attributable to Seller or either of the Subsidiaries (with Income Taxes of either of the Subsidiaries meaning Income Taxes arising after application of the relevant NOL Threshold) for Taxable periods (or portions thereof) ending on or prior to the Closing Date, other than Taxes reflected in the Final Subsidiary Closing Balance Sheet and (e) either of the matters set forth described on Schedule 8.1 attached hereto 8.2. No claim for indemnity can be brought against Seller under clause (c) of this Section 8.2 if the “Special Indemnification Schedule”)subject matter of the claim is based on events, facts or circumstances that also constitute a breach of, or could give rise to a valid claim of a breach of, a representation or warranty contained in Section 2.11 (Sufficiency of Purchased Assets; provided, that neither Parent nor Seller shall have any liability under Section 8.1(aOperations of Aesthetics Business) (other than but only those provisions of Section 2.11 that do not pertain to Tax Laws, Environmental Laws and laws that, if not 57 complied with respect to any would necessarily result in a breach of Section 6.2(a) (Authorization); Section 6.8(a) (Assets); or Section 6.15 (Litigation); or to any fraud by Parent or Seller) unless the aggregate of all Losses relating thereto for which Parent and Seller would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000.00 (“Threshold Amount”2.19), Section 2.14 (FDA and then Parent and Seller shall be liable for all such Losses including Global Regulation Compliance in Connection with the Threshold Amount. Notwithstanding the foregoingAesthetics Business), Section 2.15 (Compliance with Applicable Laws), (x) Parent but only those provisions of Section 2.15 that do not pertain to Tax Laws, Environmental Laws and Seller shall laws that, if not have any liability under Section 8.1(a) complied with respect to any would necessarily result in a breach of Section 6.18 (Environmental Matters) unless 2.19), it being understood and agreed that the amount exclusive remedy of Losses relating thereto exceeds $250,000.00 and then Parent and Seller shall be liable only each Purchaser Indemnified Party for all such Losses in excess any actions or claims the subject matter of which is based on events, facts or circumstances that constitute a breach of, or could give rise to a valid claim of a breach of, any of such $250,000.00 threshold (representations or warranties is a claim for indemnification under Section 8.2(a) and in which event such actions or claims will be subject to the Threshold Amount shall be met by such Losses); and (y) Parent and Seller shall not be liable for any Losses pursuant to Section 8.1(a) that exceed in the aggregate an amount (the “Restricted Amount”) equal to 15% of the Purchase Price (as adjusted by Section 4.2(d)) plus, with respect to Losses relating to any breaches limitations of Section 6.18 (Environmental) only, an amount equal to the difference of $8 million minus the Restricted Amount; provided, however, that this limitation shall not be applicable to any breach of Section 6.2(a) or Section 6.8(a) or to any fraud by Parent or Seller. In no event (other than with respect to any fraud by Parent or Seller) shall Parent and Seller be liable for any Losses pursuant to this Article VIII that in the aggregate exceed the Purchase Price, as adjusted pursuant to Section 4.2(d)8.5.